Lawrance v The Commonwealth of Australia and Ors (No.5)

[2007] FMCA 1934

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LAWRANCE v THE COMMONWEALTH OF AUSTRALIA & ANOR (No.5) [2007] FMCA 1934

HUMAN RIGHTS – Complaints of discrimination, sexual harassment and victimisation in the course of Federal Court proceedings – no factual foundation for any complaint – application dismissed.

Disability Discrimination Act 1992 (Cth), ss.5, 15, 21, 24, 29, 42, 122, 123
Evidence Act 1995 (Cth), s.78
Human Rights and Equal Opportunity Commission Act 1986 (Cth), s.46PO
Sex Discrimination Act 1975 (Cth), ss.5, 6, 7A, 14, 22, 26, 28A, 28G, 28L, 94, 105, 106

Lawrance v Commonwealth of Australia & Ors (No.1) [2006] FMCA 1792
Lawrance v Commonwealth of Australia & Ors (No.2) [2007] FMCA 797
Lawrance v Commonwealth of Australia & Ors (No.3) [2007] FMCA 806
Lawrance v Commonwealth of Australia & Ors (No.4) [2007] FMCA 1408
Lawrance v Commonwealth of Australia [2007] FCA 1524

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 & 9 August 2007

Written submissions completed: 16 October 2007

Delivered at: Sydney

Delivered on: 30 November 2007

REPRESENTATION

Counsel for the Applicant: In Person

Counsel for the First and Third to Thirteenth Respondents: Mr S Lloyd

Solicitors for the First and Third to Thirteenth Respondents: Australian Government Solicitor

Counsel for the Second Respondent: Mr P Moorhouse

Solicitor for the second Respondent: I V Knight, Crown Solicitor for New South Wales

ORDERS

1. The application is dismissed.

2. The applicant must pay the respondents’ costs as agreed or taxed in accordance with Federal Court Rules O.62. Pursuant to r.21.02(2)(c), refer those costs for taxation under O.62.

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

1. Ms Lawrence believes that many people with whom she has dealt have behaved towards her in a manner which imputed that she has a mental illness. She became convinced that their actions evidenced a Commonwealth government programme which administered involuntary medical treatment for her imputed condition. She unsuccessfully attempted to discover evidence of this programme in the files of NSW and Commonwealth agencies, and made complaints of discrimination by several people. During 2005 and 2006 she brought some matters to the Federal Court of Australia, and thereby came into contact with the personal respondents to the present application. They are officers of the Federal Court’s Sydney Registry, a judge’s associate, and a solicitor from the Australian Government Solicitor’s office.  Ms Lawrance complains that they adopted ‘pen-in-mouth conduct’ as part of a programme to provide involuntary diagnostic and assessment services in relation to her imputed condition. She says that their conduct, and the programme of which it was part, was unlawful under the Disability Discrimination Act 1992 (Cth) and the Sex Discrimination Act 1975 (Cth). She asks the court to declare that she has suffered unlawful discrimination, sexual harassment, and victimisation, and to order compensation, apologies and other remedies.

2. The Court’s jurisdiction in discrimination matters is confined by s.46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) to the ambit of a complaint which was terminated by the President of the Commission, and to the respondents to the complaint. In the present matter, I decided at an interlocutory stage that Ms Lawrance’s application did not encompass complaints against persons other than the present respondents, nor against government agencies except to the extent that the conduct of the personal respondents in 2005 and 2006 was alleged to have evidenced and formed part of a programme or policy directed at her by Commonwealth and State agencies (see: Lawrance v Commonwealth of Australia & Ors (No.1) [2006] FMCA 1792, Lawrance v Commonwealth of Australia & Ors (No.2) [2007] FMCA 797, Lawrance v Commonwealth of Australia & Ors (No.3) [2007] FMCA 806, Lawrance v Commonwealth of Australia & Ors (No.4) [2007] FMCA 1408, and Lawrance v Commonwealth of Australia  [2007] FCA 1524). These rulings governed the evidence which I admitted at the hearing of the application. I have considered Ms Lawrance’s additional written submissions on my rulings, but have not been persuaded that they were wrong, nor that I should give further reasons for my conclusions as to the ambit of the application or on the other matters which I addressed in my interlocutory judgments.

3. After hearing all the relevant evidence, including oral evidence from Ms Lawrance and all the personal respondents, I have decided that her application fails at its factual foundations. Ms Lawrance did not, at any stage in the proceeding, tender evidence which gave any substance to her allegations that the personal respondents acted, either individually or together, pursuant to a programme, policy, understanding or arrangement which imputed her with mental illness or other impairment amounting to a “disability” under the Disability Discrimination Act 1992 (Cth). Nothing in their individual conduct imputed her with a disability, nor amounted to sexual harassment or discrimination under the Sex Discrimination Act 1975 (Cth). She was not victimised by any of them, nor by their employers nor other government agencies, as a result of her earlier complaints. She was treated no differently than any unimpaired litigant acting for herself or himself in similar circumstances. The conduct of the personal respondents was entirely innocent, and did not amount to any of the breaches of discrimination legislation which are alleged. There was no conduct on their part for which their employers, or the Commonwealth, or the State of NSW, are liable.

4. These conclusions are based upon my findings in relation to the nine incidents upon which Ms Lawrance’s complaints are based, and upon my consideration of all the evidence presented by the parties. I shall examine the incidents chronologically.

Incident involving Mr Petkovshek in early 20051)   

1. Mr Petkovshek was a client service officer in the Federal Court Registry. It is possible that Ms Lawrance filed documents with him prior to 2005 during her frequent attendances at the counter, but she has no recollections of this. In her affidavit sworn on 14 June 2006, she said: “in early 2005, I do not recall the month …he placed his pen in his mouth as I stood at the counter.  He left his pen in his mouth, sticking out of his mouth, as with both hands he processed the documents to be filed.  I was surprised at this, and did not initially feel that this was aimed at me.  However after several minutes I felt offended … at one point this person left the counter and made some enquiry.  He then returned, and straight away placed his pen in his mouth again.  I said to him ‘take your pen out of your mouth it’s rude!  He … (left) the pen in his mouth, and handed me the by then filed documents.  I felt horrified at his conduct.”   She thought that he engaged in this conduct “deliberately” and that her complaint to him was “ignored”, since he “chose to not remove the pen from his mouth”. In cross-examination, she said that his conduct was “obviously directed” at her, because “it is not normal … he is doing his job with a pen in his mouth, sticking out of his mouth while he, you know, files things and stamps and what have you and then leaves it there when he is asked to remove it”.

2. Ms Lawrance did not make a complaint about his conduct at the time, but a memory of the incident may have been present when she made complaints to Mr Wall, the District Registrar in September 2005 generally about actions of his staff, which she said were “imputing to me a disability which I do not have”.

3. In his evidence to the court, Mr Petkovshek said that he remembered “vaguely … her asking me to take a pen out of my mouth”, on an occasion when she had requested a JP. He said: “I just took it out of my mouth, then”, and explained his conduct as: “it’s just something I do by habit”. He said that he had “never met her before.  I’d never heard of her either”. He denied any awareness of any policy or programme at the Federal Court registry in relation to Ms Lawrance. In cross-examination, he denied that that he had left the pen in his mouth when asked to remove it, and that he had acted deliberately and with an intent to offend. He also denied that he had placed his pen “across my face” in her presence in August 2006. He denied that anything he did was “lewd” or “unwelcome” conduct.

4. I find it probable that an incident did occur in early 2005, when Ms Lawrance asked Mr Petkovshek to remove a pen which he had placed in his mouth while attending to the filing or witnessing of her documents. However, I am not satisfied that he kept it in his mouth after she objected. Even if he did, I would not find that his conduct occurred for any discriminatory reason, or amounted to “conduct of a sexual nature” within s.28A of the Sex Discrimination Act. I accept his explanation that it was an unconscious and innocent gesture of habit, entirely unrelated to the identity of the person whom he was attending. I can find nothing in the evidence as to what occurred on this occasion, even when considered in the light of the other evidence in the case, which provides any support for a conclusion that Mr Petkovshek’s conduct occurred in the course of, or was associated with or was part of, any general policy, program or arrangement in the Federal Court registry in relation to Ms Lawrance.

An appointment with Ms Lackenby on 1 April 20052)   

1. Ms Lackenby was a Deputy District Registrar, who conducted an appointment made by Ms Lawrance to settle the index for appeal papers in an appeal from the Administrative Appeals Tribunal in a freedom of information matter. The respondent was represented by Mr Markus, a solicitor at the Australian Government Solicitor’s office. In the course of the meeting, Ms Lawrance disagreed with Ms Lackenby’s opinions about procedures relating to the list of documents forwarded by the AAT.

2. In her affidavit filed on 14 June 2006, she said that Ms Lackenby “who sat facing me, raised her pen to her mouth …I didn’t really notice this at the time, and it is not something I would have thought had anything to do with me had I not been subjected, as I was over the course of the following months, to conduct from a number of Federal Court employees which made it clear to me that her conduct was engaged in deliberately”. She also recalled that Mr Markus “who had sat alongside me that day, had on occasion raised his pen to his face and sort of ‘floated’ it around his face or briefly touched it to his mouth”. She said: “at the time, on 1 April 2005, I did not register (their behaviour) as having anything to do with me.”

3. Ms Lawrance gave different evidence as to her contemporaneous thoughts in an affidavit sworn on 3 August 2007. In this she stated: “I observed Kim Lackenby as we interacted.  On each occasion I formed the view that she had raised her pen to her mouth deliberately, and when there was a disagreement over the application of the Rules.”   She said: “having observed Andras Markus closely, he was deliberately floating his pen around his face”.

4. In cross-examination, she said that Ms Lackenby’s conduct “was really unpleasant and rude”, but conceded that at the time “I didn’t understand or appreciate that she was doing it deliberately and that it was directed to me”.

5. She only obliquely referred to Ms Lackenby in her letter to Mr Wall in September 2005. In her letter to the Chief Justice of 14 September 2005, she said: “It has only been in relatively recent times that I became aware that I was being imputed with a disability.” Referring to Ms Lackenby’s conduct on this occasion, she said: “I did not realise at the time that her conduct was aimed at me, but in the circumstances, it is now obvious that it was”.

6. Ms Lackenby told the court that she had a “vague recollection” of the index appointment on 1 April 2005. She said it was a “particularly unpleasant appointment” because Ms Lawrance was “very argumentative throughout the proceedings”, and “there was some tension as a result of that”. She had no specific memory of placing a pen in her mouth, but said that it was “certainly” possible that she did. She said: “any number of times, if I’m using my hands and I have a pen I might do that and I would do that particularly when I’m at work because I often have pens in my hand.” She denied that her conduct was “deliberate”, and that she had been participating in the provision to Ms Lawrance of diagnostic and assessment services under the Commonwealth Disability Services Act.

7. Mr Markus did not recall raising his pen to his mouth during the appointment with Ms Lackenby, but said that this was “quite possible”. He said: “I remember people putting pens in their mouths all the time.  I mean, that’s not exactly a rare situation.” He denied that his conduct had imputed a mental disability to Ms Lawrance. He said that he first came to understand that she took offence to people putting pens in or near their mouths during an index appointment on 9 September 2005, which I shall describe below. He denied awareness of any policy or program at the Federal Court registry “which targets Ms Lawrance”, and that any such program existed at the Australian Government Solicitor.

8. I find that the conduct of Ms Lackenby and Mr Markus on this occasion was entirely innocent of any of any discrimination, sexual harassment or victimisation of Ms Lawrance. It is significant that she had no such apprehensions at the time. I am unable to find positively that either of them did place their pens in or near their mouths, as is claimed by Ms Lawrance, since it is quite possible that she has imagined this in retrospect after she had become sensitive to noticing such behaviour. It is also possible that it did occur, but, if so, I find that it was the result of unconscious mannerism, unrelated to Ms Lawrance’s identity or presence on the occasion.

9. I consider that it was likely that there was tension at the appointment, due to Ms Lawrance being dogmatic in her expression of opinions as to the effect of the Federal Court Rules. However, I am not persuaded that Ms Lackenby or Mr Markus responded in any manner which was not professionally responsible and appropriate. Nothing in the evidence as to this incident provides any support for Ms Lawrance’s hypothesis that there was a program or policy directed at her by the staff and officers of the registry and the AGS.

An appointment with Ms Lackenby on 7 June 2005.3)   

1. In May 2005, Ms Lawrance filed an appeal by leave from interlocutory orders made in this Court in April 2004. She was given an appointment on 7 June 2005 before Registrar Lackenby to settle the index for an appeal book. She was concerned that she had not been given a directions listing before a judge, and complained to Ms Lackenby that this was contrary to her understanding of the Rules.

2. In her affidavit of 14 June 2006, she said: “as I was in the middle of talking, (Ms Lackenby) got up from her chair wordlessly and walked out of the room.  The AGS lawyer was Judy Pownall.  She may have briefly raised her pen to her mouth but I do not recall this occurring whilst Kim Lackenby was in the room, and I am not entirely certain that she did this.  However, Kim Lackenby most certainly did do this on 7 June 2005 … when I disagreed with her over the content of the Federal Court Rules. … she did this a couple of times, and I felt offended.”  She complains that this behaviour was “shockingly rude”, and contrary to “the rules of normal social interaction”. She later concluded that Ms Lackenby “is imputing to me a paranoid personality disorder”.

3. In cross-examination, it was pointed out to her that in her letter to the Chief Justice of 14 September 2005, she had complained about Ms Lackenby “misunderstanding the content of the relevant Federal Court Rules and so on, walking out of the room when I was still talking”, but that she had stated: “she did not again place her pen in her mouth”. However, Ms Lawrance maintained that “she put her pen to her mouth, it wasn’t in her mouth, and she did so when … there was a disagreement” about the rules.

4. Ms Lackenby had no recollections of this appointment, and gave the general evidence about her pen habits, to which I have referred above. She did not deny Ms Lawrance’s assertion that “at one point I was speaking and you just wordlessly stood up and walked out of the room”. She said: “if it was because I couldn’t get a word in edgeways, and I needed to do something, then I might have”; and: “I quite regularly walk out of the room during index appointments, sometimes to get something from the file room, often to make photocopies”.

5. Ms Pownall was not called as a witness by any party.

6. In view of the applicant’s more contemporaneous statement in her letter to the Chief Justice, I find it more probable than not that Ms Lackenby was not observed by Ms Lawrance on 7 June 2005 engaging in any ‘pens-in-mouth conduct’ nor ‘pens-near-mouth’ conduct. Moreover, if it occurred, I would make the same findings as to Ms Lackenby’s likely reasons for such behaviour and its significance, as I made in relation to the appointment on 1 April 2005. I find nothing in the evidence about this occasion to support any of Ms Lawrance’s complaints of discrimination, harassment, or victimisation.

7. There are a number of possible explanations for Ms Lackenby leaving her room during the appointment, and I am not persuaded to attribute any of the reasons now hypothesised by Ms Lawrance, in particular, that it imputed a psychiatric disability to her, or was part of a secret disability plan or policy being implemented in the Federal Court registry against her.

An incident with Mr English in July or August 20054)   

1. Ms Lawrance made a number of visits to the Federal Court to inspect and photocopy files during July and August 2005. On one of these visits she was in conversation with a Deputy Registrar, Mr Segal, when Mr English, a registrars’ support employee, came into the inspection room. Ms Lawrance said in her affidavit that he “stood facing me and placed his pen in his mouth and held it there for several seconds as he looked at me.  … I said words to the effect of, “Don’t put your pen in your mouth.  Remove the pen.  Your conduct is offensive.”

2. In her letter to the Chief Justice of 14 September 2005, one of her complaints was that “Gerry in deliveries placed his pen in his mouth in an unmistakeable and prolonged manner in front of me, around one month ago.   … The conduct is offensive in the extreme, it is unlawfully discriminatory under SDA and DDA, and its occurrence amounts to victimisation”.

1. Mr English’s recollection of the incident was that he was “summoned around to provide a date or negotiate a date” for an appointment to settle an index. He recalled waiting to speak to Ms Lawrance, holding a pen and a diary or spreadsheet to write down the date. When it was put to him that he had held a pen to his mouth, he said: “It’s possible, because as I say, I intended to write down the date.  Whilst I was waiting and not wishing to interrupt the conversation I would more than likely have an unconscious gesture of perhaps having it there ready, as this gesturing I’m doing at the moment, it’s a sort of unconscious thing that you now become aware of, but at the time it would have been a gesture simply of waiting.” He denied any intention to deliberately offend Ms Lawrance, and said that he had apologised to her when he became aware that she was offended. He denied ever being told in the Registry that she had a psychiatric impairment, and said: “I certainly had no inkling of any lewdness with pens or pencils in mouths.  In fact, in my former career as a school teacher it would hardly be a day go by that a student wouldn’t be sitting there chewing on a pencil while answering a reading question or doing some maths or something of that nature.”

2. I find it probable that Ms Lawrance did see Mr English holding a pen near or in his mouth, but accept his evidence as to the circumstances in which this happened. I find that it was an innocent and unconscious gesture on his part, unrelated to any characteristics of the persons who were present. I can find no evidence in this incident supporting Ms Lawrance’s complaint of discrimination, harassment or victimisation. It gives no support for a policy or programme being implemented in the registry directed at Ms Lawrance.

A meeting with Mr Wall in late August or early September 20055)   

1. About one week after the above incident, Ms Lawrance asked to meet the District Registrar, Mr Wall, to complain about offensive conduct which she had noticed.

2. In her letter to the Chief Justice of 14 September 2005, she said: “I said in an opening comment, ‘I wish to complain to you about conduct that I am being exposed to by certain Federal Court employees’.  Michael Wall then immediately placed his pen in his mouth as he sat there looking at me.  I then said, ‘And yes, that is the conduct I am complaining of in relation to Federal Court staff’.  I am concerned that Michael Wall thought that he could so behave.”

3. She gave a similar account of the incident in her affidavit of 14 June 2006, adding that he “left it there for at least 10 seconds”.

4. In cross-examination, she agreed that she had no previous dealings with Mr Wall, and at the time did not expect him to know what she was complaining about. She said: “I believe that I was administered medical treatment whilst I was in his office, as part of the provision of diagnostic and assessment services.”

5. Mr Wall told the court: “I was told by my PA at the time that there was somebody at the reception desk wishing to see me to raise some concerns about some event in the Registry; no more, no less.”   After she came into his office, “I sat down; I can remember swinging around to get a paper or a pad or something and turning around, and you saying to me something along the lines of, “that’s exactly what I’m talking about” because I had a pen in my mouth”. He could not recall how long it was there, but he took it out “no later, at the time you expressed a concern about me having a pen in my mouth”. He thought that “there was nothing intended by the pen being placed in the mouth, and therefore, in my view, I didn’t understand the concern.” This was “the first time anything of that nature had been brought to my attention or complained about.” He said: “I have no awareness or consciousness of putting my pen in my mouth, before or since.” 

6. He denied having any information that Ms Lawrance was “receiving disability services” or was the subject of a guardianship order. He denied any arrangement or programme between the Federal Court Registry with CRS Australia, or the Department of Family and Community Services, or any agency of the State of NSW, in relation to the provision of services to her and her presence on Federal Court registry premises. I accept this evidence, which is corroborated by evidence from Ms Margaret Carmody, the General Manager of CRS Australia.

7. I find that it is probable that Mr Wall placed his pen in his mouth at some time at the start of his meeting with Ms Lawrance. I find that this was an unconscious action, which would normally have passed unnoticed both by him and anyone else in such a meeting. His action was not directed at Ms Lawrance, did not treat her differently from any other complainant in the circumstances, and did not amount to sexual harassment under s.28A of the Sex Discrimination Act, whether as “conduct of a sexual nature” or otherwise. He was unaware of any complaints of discrimination made by her in the past about any person, and she was not victimised by his actions by reason of any past or possible future complaints. The evidence relating to this incident provides no support for Ms Lawrance’s hypothesis of a disability policy or program being implemented at the Federal Court registry which imputed her with mental illness.

A hearing before Hely J on 6 September 20056)   

1. Ms Lawrance’s written complaints to Mr Wall of 9 September 2005 and to the Chief Justice on 14 September 2005, included the actions of three Federal Court judges. She said that Hely J “spent a lot of the time with his pen in his mouth” at a hearing of one of her matters on 6 September 2005. Jacobson J “adopted some rather strange and excessive gestures rubbing his face during hearings” in other matters, and Bennett J “conducted an extraordinary hearing” in a matter in May 2005. These complaints were forwarded to the Human Rights and Equal Opportunities Commission with her complaint of 26 September 2005, which initiated the present matter. The President’s delegate noted that the three justices’ actions were covered by principles of judicial immunity, and terminated those complaints on that ground. Ms Lawrance appears to have accepted this ruling, since she did not seek to join them as respondents to her present application.

2. She does, however, maintain complaints about Hely J’s Associate, Ms Curtin, and about Mr Markus, who were also present at the hearing on 6 September 2005. It was an appeal from an AAT decision in a freedom of information matter concerning Centrelink. In her affidavit of 14 June 2006, she complained that “at the conclusion of this hearing, the associate Juliet Curtin had sat, facing the bar table, smiling at Andras Markus and placing her pen in her mouth and ‘floating’ it around her face, for several minutes.” 

3. In her evidence to the court, Ms Curtin had no recollection of her alleged actions. However, she denied that she was participating in “the provision of diagnostic assessment services that day”, and said that she was unaware that Ms Lawrance was someone who was being provided with those services. She said that she only later became aware that Ms Lawrance took offence to people putting a pen in or near their mouth.

4. Mr Markus had no recollection of “waving your pen around your face as you faced Juliet Curtin”, nor of her “smiling at you at the end of that hearing and putting her pen to her mouth repeatedly.” He said that he was unaware at that time of Ms Lawrance’s concerns about such conduct.

5. Ms Lawrance included a complaint that Ms Curtin “placed her pen in her mouth” in her letter to Mr Wall of 9 September 2005, and in her letter to the Chief Justice of 14 September 2005, and in a letter of complaint about Mr Markus written to the Director of the AGS on 14 September 2005. At this time, it is clear that she had become sensitive to such conduct occurring in her presence. She had also started to recall similar conduct by other people, and was developing suspicions as to its causes. However, she was not entrenched in her belief that it constituted unlawful discrimination as part of an involuntary disability programme. As she said in her letter to Mr Wall: “Odd though this may appear to you, I do not in fact know whether or not this is what is occurring.” A footnote to her letter to the Chief Justice said: “I wish to make it clear, too, that I do not know why I am being subjected to this type of conduct.”

6. Taking into account these nearly contemporaneous letters, I find it probable that Ms Lawrance did observe Ms Curtin placing a pen in her mouth during a hearing on 6 September 2005, and possibly also smiling at Mr Markus. However, I find that she misinterpreted these gestures. I find that they were probably no more than unconscious actions, innocent of any personal direction at Ms Lawrance, and devoid of any of the characteristics of discrimination, sexual harassment or victimisation which are now alleged by Ms Lawrance. I find in them no evidence of the policy or programme which Ms Lawrance started to imagine at the time.

An appointment with Mr Morgan on 9 September 20057)   

1. Events at an appointment with Deputy Registrar Morgan on 9 September 2005 prompted Ms Lawrance to make her written complaints. Mr Markus was again representing a Commonwealth respondent at the settling of an appeal index. Ms Lawrance noticed him placing his pen in his mouth.

2. In her affidavit of 3 August 2007, she said: “I experienced feelings of great surprise, offence, revulsion and distress when I watched him place his pen in his mouth after I raised with him his conduct in the hearing before Hely J.  Together with the words Andras Markus spoke when I told him I would complain to his employer, which were “Go ahead” or words to this effect, and his interrupting me and speaking over me as I spoke, I formed the opinion, observing him closely, that Andras Markus placed his pen in his mouth deliberately, and he intended to cause offence.”

3. Her affidavit of 14 June 2006 claimed that, after she had complained to Mr Markus about his placing his pen in his mouth, his “immediate reaction to this was to raise his pen to his mouth and place it in his mouth and hold it there, half of it in his mouth, for an extended period of time – around 5-10 seconds”. She maintained this under cross-examination. However, there is no suggestion of such conduct in her complaints to the Chief Justice and AGS of 14 September 2005. In the latter letter, she complained only that: “When I corrected Andras Markus on 9 September 2005 he was rude, unpleasant and argumentative”.

4. In his evidence to the Court, Mr Markus said that he had no memory of putting his pen in his mouth on that occasion. He did remember that at one point Ms Lawrance told him to cease putting his pen in his mouth, and: “you said words to the effect that this was conduct that you observed repeatedly happening recently and that the Federal Court staff were involved.” He denied that he had responded by putting his pen in his mouth and leaving it there for several seconds. He said that he tried to return to the settling of the index, and accepted “that my tone of voice may have displayed some frustration and that you may have interpreted that as rudeness”. He denied doing anything deliberately offensive towards Ms Lawrance. He denied that anything in his conduct imputed a mental disability to Ms Lawrance, and said: “that was the first time I heard anything about Ms Lawrance and pens”.  As I have indicated above, he denied any awareness of a policy or programme that targeted her.

5. Mr Morgan was called as a witness by Ms Lawrance. He recalled that “there was an incident that occurred that you raised some concerns about”, but did not recall Mr Markus putting his pen to his mouth at any stage.

6. I find it probable that Ms Lawrance did observe Mr Markus putting his pen in his mouth on one occasion during the appointment with Mr Morgan, and that she then voiced her concerns, including her concern that she had recently started noticing other people taking similar actions. However, I would not find that he responded by repeating his action, whether in an exaggerated or any manner. In view of the absence of any suggestion of this in her written complaints, I find that this probably did not occur. I consider that it is probable that Mr Markus replied brusquely, but not inappropriately in the circumstances.

7. As with Mr Markus’ conduct at the appointment with Ms Lackenby, I find that nothing in this incident provides support for Ms Lawrance’s allegations of unlawful discrimination, sexual harassment or victimisation. I find no evidence suggesting that Mr Markus was participating in a secret policy or programme which imputed disability to Ms Lawrance.

8. It is useful at this point to note other evidence presented by Ms Lawrance involving Mr Morgan, since it illustrates her general tendency over time to embroider, and draw unsupported conclusions from her observations of innocent behaviour. Ms Lawrance’s original complaints made no suggestion that Mr Morgan was implicated in what she told HREOC was “the sudden rash of people who have done this [pen-in-the-mouth conduct] whilst speaking to me and to my face, in a manner that strikes one as odd and as deliberate.” Nor was his behaviour adverted to in her affidavit sworn on 14 June 2006. In an affidavit sworn on 29 May 2007, she said: “Tom Morgan has never behaved towards me in the manner the subject of complaint in relation to” the other members of the registry staff, although she then included several paragraphs reflecting on having met him at the lift near the registry in May 2007 (see paragraphs 27-30). However, by the time of making her affidavit of 3 August 2007, she had come to believe that his behaviour at the lift was sinister, and she stated: “it is my belief that Tom Morgan was participating in the provision to me of diagnostic and assessment services under the Disability Services Act (Cth)” (see paragraph 13).At the hearing, she then challenged the veracity of his sworn evidence (transcript p.132).

9. Similar shifts in Ms Lawrance’s perceptions and memories of events were apparent throughout her evidence. I have pointed to similar shifts when discussing other incidents above. They have caused me to be cautious in accepting even her most simple recollections, where they are not supported by contemporaneous records or the ‘inherent logic’ of events. They have caused me not to give weight to her opinions as to the motives or underlying reasons for events which she has observed, even where that evidence might have been admissible under s.78 of the Evidence Act. They have caused me generally to prefer the evidence of other witnesses, where there is a conflict of testimony.

An incident with Mr Packer on 16 February 20068)   

1. In her affidavit of 14 June 2006, Ms Lawrance said that on 16 February 2006 she joined the “express lane” at the registry counter, when it was being serviced by Mr Packer, a client service officer. She said: “he had his pen in his mouth, sticking out of his mouth, whilst his hands were free and idle on the desk top.” She immediately complained about this in a letter to the Chief Justice dated 16 February 2006, in which she said: “it was removed on my arrival.   I would not ordinarily think that such conduct was in any way directed at me had I not experienced the disgusting, piggish, unwelcome conduct by Federal Court employees, last year”.

2. In her evidence to the Court, she made the further allegation that Mr Packer put the pen into his mouth deliberately when he saw her approaching the counter, and that this occurred as part of an arrangement between the Federal Court and a Commonwealth agency to provide diagnostic and assessment services in relation to her imputed disability. She agreed that she said nothing to him about this at the time.

3. Mr Packer gave evidence that “I had my pen in my mouth whilst I was typing at my keyboard, and as Ms Lawrance approached my counter I did remove the pen from my mouth in order to be able to speak with her.” In relation to his behaviour, he said: “I don’t see anything wrong with it, Ms Lawrance.  If you wish I can bring you a whole range of pens from my desk that are similarly chewed.  It is a habit.  I’m a smoker and I put my pen in my mouth constantly.  I put screwdrivers in my mouth on the weekend when I’m working on cars.  He denied that it was intended to be offensive, or could constitute lewd conduct. He denied that he had been informed that she was receiving disability services and had some form of psychiatric impairment.

4. I accept Mr Packer’s evidence. I find that his conduct was innocent of any of the elements of discrimination, sexual harassment or victimisation which are alleged by Ms Lawrance. It was not part of any programme or policy which she has hypothesised.

The conduct of Mr Packer and Mr Petkovshek on 2 March 20069)   

1. Following her complaint about Mr Packer, she encountered him again in the ‘express lane’ on 2 March 2006, when she “had an affidavit which I wished to be witnessed when I signed it”. She complained on the same day in a letter to Mr Kellow, the Deputy Registrar of the Federal Court, that Mr Packer “immediately told me he could not serve me because I had complained about him.”

2. In her oral evidence, Ms Lawrance claimed that his refusal was “in an exceptionally insolent tone of voice … designed to cause offence”. She did not deny that he also explained to her that there were no JPs available at the Registry, nor that he directed her to locations where she could find a JP, nor that he explained that the express lane did not usually handle requests for the witnessing of documents. She was, in fact, assisted to execute her affidavit before Mr Petkovshek.

3. In his evidence, Mr Packer agreed that he had said that he would not serve Ms Lawrance because she had complained about him, as well as pointing out that the express lane counter could not provide a witness for affidavits. He denied that he wanted to be offensive, and explained: “a complaint had been made against me previously from a different client.  I was actually instructed by the Registrar at that time to not deal with that person until the complaint had been resolved.” He said: “I feel personally if I had done something to offend you or intimidate you, antagonise you or what not in any way then I feel that it would be best until that situation had been resolved that we kept a distance.”

4. I accept Mr Packer’s account of his conduct, and his explanation for his reluctance to serve Ms Lawrance. I am not persuaded that his manner of speaking to her had the character now ascribed by her. I do not consider that his conduct on this occasion was by reason of any imputed disability of Ms Lawrance, nor for any other discriminatory reason. To the extent that he declined personally to serve her, I do not consider that this resulted in any threatened or actual “detriment” on the ground that Ms Lawrance had made or would make an allegation of discrimination, so as to amount to victimisation under s.24 of the Disability Discrimination Act, or s.94 of the Sex Discrimination Act. This is because, in fact, Ms Lawrance was referred to Mr Petkovshek, who appropriately witnessed her affidavit.

5. In her letter to Mr Kellow, Ms Lawrance complained that Mr Petkovshek wrongly identified himself on the witnessed document as ‘an officer acting with the authority of the District Registrar’ rather than as a JP. She complained that the staff was engaging in “ridiculous antics” and “clearly some sort of programme has been implemented which is not being imposed lawfully”.

6. Mr Kellow responded promptly, pointing out that Mr Petkovshek was not a JP but was authorised to administer oaths and affirmations. He said that it was reasonable for Mr Packer to have declined to provide assistance of a kind not usually provided by the express lane, and that counter officers were being briefed on when they should decline to serve a person who had made a prior complaint.

1. I find that the 2006 incidents provide no support for Ms Lawrance’s case, but reveal the proper operations of a registry staff. In my opinion, Mr Kellow made appropriate responses to the complaints made to him. Nothing in this incident reveals evidence suggesting the existence of a secret disability policy or programme which imputed Ms Lawrance with disability, or otherwise discriminated against, harassed or victimised her.

Summary of conclusions upon Ms Lawrance’s claims

1. Ms Lawrance has not established any unlawful discrimination under s.14(2) of the Sex Discrimination Act, including by reference to s.7A, since none of her complaints in the present matter concern an action of her employer or possible employer.

2. She has not established unlawful discrimination under s.22 of the Sex Discrimination Act, since there were no acts by any person which discriminated against her in relation to the provision of services in the Federal Court or by the Australian Government Solicitor. As defined in s.5(1), at no time did a person treat her, or propose to treat her, less favourably than a person of the opposite sex would have been treated in circumstances that are the same or are not materially different. As defined in s.6(1), at no time did a person treat her, or propose to treat her, less favourably than a person of a different marital status would have been treated in circumstances that are the same or are not materially different.

3. For the same reasons, she has not established any discrimination under s.26 of the Sex Discrimination Act in the performance of any function or exercise of any power or responsibility under Commonwealth law, or for the purposes of a Commonwealth program.

4. Ms Lawrance has not established sexual harassment by any person under s.28G of the Sex Discrimination Act in the course of receiving goods, services or facilities at the Federal Court or from the Australian Government Solicitor. Nor under s.28L by any person acting in the performance of any function or exercise of any power or responsibility under Commonwealth law, or for the purposes of a Commonwealth program. This is because none of the actions of which she complains constituted an “unwelcome sexual advance”, nor an “unwelcome request for sexual favours”, nor “unwelcome conduct of a sexual nature” in relation to Ms Lawrance, within s.28A.

5. Ms Lawance has not established an act of victimisation within s.94 of the Sex Discrimination Act. She was never subjected to, nor threatened with, any detriment within s.94(2), and no action was ever taken nor threatened against her on the ground that she had made a complaint or allegation under the Sex Discrimination Act or the Human Rights and Equal Opportunity Commission Act.

6. Ms Lawrance has not established under s.105 of the Sex Discrimination Act that any person, agency or body, caused, instructed, induced, aided or permitted another person to do an act that is unlawful under that Act.

7. Since there was no unlawful action under the Sex Discrimination Act by an employee or agent, the employers of the personal respondents have no liability under s.106 of that Act by reason of their actions.

8. Ms Lawrance has not established any unlawful discrimination under s.15 of the Disability Discrimination Act, since none of her complaints in this matter concerns an action of her employer or possible employer. Nor under s.21, since the matter does not concern an action of an employment agency.

9. Ms Lawrance has not established that any person unlawfully discriminated against her under s.24 of the Disability Discrimination Act on the ground of a disability, or an imputed disability, in the provision of goods, services or facilities at the Federal Court. This is because at no time did any person treat her or propose to treat her less favourably than a person without a disability, or imputed disability, would have been treated in circumstances that were the same or not materially different, within s.5.

10. For the same reason, she has not established any unlawful discrimination under s.29 of the Disability Discrimination Act in the performance of any function or exercise of any power or responsibility under Commonwealth law, or for the purposes of a Commonwealth programme.

11. Ms Lawrance has not established an act of victimisation within s.42 of the Disability Discrimination Act. She was never subjected to, nor threatened with, any detriment within s.42(2), and no action was ever taken nor threatened against her on the ground that she had made a complaint or allegation under the Disability Discrimination Act or the Human Rights and Equal Opportunity Commission Act.

12. She has not established that any person incited, assisted or promoted the doing of any act that is unlawful or an offence under the Disability Discrimination Act. In particular, the matters of which she has complained in this application provide no evidence whatsoever of any policy or programme of any agency or body of the Commonwealth or State of NSW which did this.

13. She has not established under s.122 of the Disability Discrimination Act that any person caused, instructed, induced, aided or permitted any other person to do an act which is unlawful under that Act.

14. Since there was no unlawful action under the Disability Discrimination Act by an employee or agent, the employers of the personal respondents have no liability under s.123 of that Act.

15. Ms Lawrance has not established any basis for the grant of relief under the Human Rights and Equal Opportunities Commission Act.

16. Her application should therefore be dismissed in relation to all respondents.

I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Michael Abood

Date:  30 November 2007