Lawrance v Watson & Ors
[2008] FMCA 984
•21 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LAWRANCE v WATSON & ORS | [2008] FMCA 984 |
| HUMAN RIGHTS – Disability discrimination – sex discrimination – sexual harassment – victimisation. PRACTICE & PROCEDURE – No reasonable prospects of success – summary dismissal application – appropriate test – applicant had brought several other proceedings making similar allegations and seeking similar relief against most respondents to these proceedings – these proceedings vexatious and an abuse of process. PRACTICE & PROCEDURE – Vexatious litigant allegation – although these proceedings vexatious because other similar proceedings pending, the underlying claim may not be vexatious – criteria under the Rules for finding the applicant to be a vexatious litigant not satisfied. PRACTICE & PROCEDURE – Application for order that publication of applicant’s name be prohibited – criteria for such an order considered – application refused. |
| Constitution Federal Magistrates Act 1999, ss.17A, 61, 87 Migration Litigation Reform Act 2005 |
| Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 Jefferson Ford Pty Limited v Ford Motor Company of Australia Limited [2008] FCAFC 60 Spiteri v Nine Network Australia Pty Limited [2008] FCA 905 The Atlantic Star [1974] AC 436 |
| Applicant: | AROHA LAWRANCE |
| First Respondent: | DALE WATSON |
| Second Respondent: | AUSTRALIAN GOVERNMENT SOLICITOR |
| Third Respondent: | CRS AUSTRALIA |
| Fourth Respondent: | DEPARTMENT OF FAMILY & COMMUNITY SERVICES & INDIGENOUS AFFAIRS |
| Fifth Respondent: | STATE OF NEW SOUTH WALES |
| Sixth Respondent: | NEW SOUTH WALES GUARDIANSHIP TRIBUNAL |
| Seventh Respondent: | ANNETTE O'NEILL |
| Eighth Respondent: | JULIAN MILLAR |
| Ninth Respondent: | COMMONWEALTH OF AUSTRALIA |
| File Number: | SYG 654 of 2007 |
| Judgment of: | Cameron FM |
| Hearing dates: | 31 May 2007, 1 June 2007, 10 July 2008 |
| Date of Last Submission: | 10 July 2008 |
| Delivered at: | Sydney |
| Delivered on: | 21 July 2008 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the First – Fourth, Seventh – Ninth Respondents: | Australian Government Solicitor |
| Counsel for the Fifth & Sixth Respondents: | Mr P. Moorhouse |
| Solicitors for Fifth & Sixth Respondents: | I.V. Knight, Crown Solicitor |
ORDERS
Pursuant to r.13.10 of the Federal Magistrates Court Rules 2001 (“Rules”), the application be dismissed.
The respondents’ application for an order pursuant to r.13.11 of the Rules will be refused.
The applicant’s application for an order that the publication of her name be forbidden be refused.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 654 of 2007
| AROHA LAWRANCE |
Applicant
And
| DALE WATSON |
First Respondent
| AUSTRALIAN GOVERNMENT SOLICITOR |
Second Respondent
| CRS AUSTRALIA |
Third Respondent
| DEPARTMENT OF FAMILY & COMMUNITY SERVICES & INDIGENOUS AFFAIRS |
Fourth Respondent
| STATE OF NEW SOUTH WALES |
Fifth Respondent
| NEW SOUTH WALES GUARDIANSHIP TRIBUNAL |
Sixth Respondent
| ANNETTE O'NEILL |
Seventh Respondent
| JULIAN MILLAR |
Eighth Respondent
| COMMONWEALTH OF AUSTRALIA |
Ninth Respondent
REASONS FOR JUDGMENT
In these proceedings the applicant seeks orders that:
a)she be given an apology by, and awarded damages including aggravated and exemplary damages against, all the respondents;
b)all programs and services provided to and in relation to her under the Disability Services Act1986 (“DSA”) by the third, fourth, fifth and ninth respondents cease and be terminated; and
c)all orders and powers granted to the sixth respondent under the Guardianship Act 1987 (NSW) in relation to her be revoked or terminated.
The applicant has also sought interlocutory relief seeking suppression of her name under s.61 of the Federal Magistrates Act 1999 and an order that:
The use of a pen in the manner described is to cease and the programme involving the use of a pen in the manner described is to cease.
She also sought discovery from the respondents.
The first, second, third, fourth, seventh, eighth and ninth respondents (“Commonwealth respondents”) and the fifth and sixth respondents (“NSW respondents”) have applied for the proceedings to be dismissed pursuant to r.13.10 of the Rules of Court on the basis that:
a)the applicant has no reasonable prospects of success;
b)the proceedings are frivolous or vexatious; and
c)the proceedings are an abuse of process.
Should the Court be satisfied that these proceedings are vexatious and that the applicant has consistently and without reasonable grounds instituted other vexatious proceedings, the respondents also invite the Court to make orders pursuant to r.13.11 that:
a)any proceedings instituted by the applicant may not be continued without the leave of the Court; and
b)the applicant may not institute a fresh proceeding without the leave of the Court.
The applicant’s claim is brought in this Court pursuant to s.46PO(1) of the Human Rights and Equal Opportunity Commission Act 1986 (“HREOC Act”) on the basis that the complaint she made to the Human Rights and Equal Opportunity Commission (“Commission”) against the nine respondents to these proceedings was terminated by the Commission. In that complaint, the applicant alleged:
a)imputed disability discrimination under the Disability Discrimination Act 1992;
b)sex and marital status discrimination and sexual harassment under the Sex Discrimination Act 1984; and
c)victimisation under the Disability Discrimination Act 1992 and the Sex Discrimination Act 1984.
Attachment A to the Commission’s Notice of Termination (Exhibit A) summarised the claims in the following terms:
You have informed the Commission that you have been imputed with a disability which you state is an unlawful act in the absence of a diagnosis.
You state that on 17 November 2006 you attended a hearing, it would appear in the Federal Magistrates’ Court, in which Ms Watson was acting for a respondent. You claim that during the course of that hearing Ms Watson placed a pen in her mouth as she sat at the bar table. You state that she left her pen clenched in her mouth as she searched for something in her bag. You claim that this constitutes sexual harassment and discrimination on the grounds of sex and marital status under the Sex Discrimination Act 1984, imputed disability discrimination under the Disability Discrimination Act 1992, and victimisation under the Sex Discrimination Act 1984 and the Disability Discrimination Act 1992.
You claim that the other named respondents, who are the Commonwealth of Australia – CRS Australia and the Department of Family and Community Services and Indigenous Affairs and the State of NSW – the Department of Health and the Guardianship Tribunal, are responsible for the actions of Ms Watson. You also claim that Ms O’Neill and Mr Millar were present at that hearing and are responsible for the act because of your 1995 complaint against [a former Social Security Appeals Tribunal (“SSAT”) colleague]. You also claim that Ms O’Neill’s and Mr Miller’s actions constitute victimisation.
The applicant alleges in her application that one or all of the respondents engaged in unlawful discrimination, harassment or victimisation towards or of her:
a)contrary to some or all of the following provisions of the Disability Discrimination Act 1992:
i)s.4(k) – definitions;
ii)s.5(1) – meaning of disability discrimination;
iii)s.29 – discrimination in the administration of Commonwealth laws and programs;
iv)s.42(2)(a), (b), (c), (e), (f), (g) – victimisation;
v)s.43 – incitement of unlawful acts;
vi)s.122 – involvement in unlawful acts; and
b)contrary to some or all of the following provisions of the Sex Discrimination Act 1984:
i)s.6(1) – discrimination on the ground of marital status;
ii)s.26 – discrimination in the administration of Commonwealth laws and programs;
iii)s.28A(b) – meaning of sexual harassment;
iv)s.28L(a), (b) – sexual harassment in the administration of Commonwealth laws and programs;
v)s.94(2)(a), (b), (c), (e), (f), (g) – victimisation;
vi)s.105 – involvement in unlawful acts;
vii)s.106 – vicarious liability; and
viii)s.108 – Commonwealth deemed employer.
The complaints to the Commission as revealed by the attachments forming part of Exhibit “A” disclose that the “pen-in-mouth” conduct is alleged by the applicant to be part of an unlawfully discriminatory program under the DSA which has been implemented in conjunction with an unlawfully discriminatory grant of powers or orders in relation to the applicant under the NSW Guardianship Act. In her complaints to the Commission the applicant asserted that the “pen-in-mouth” conduct amounted to sexual harassment, sex discrimination, unlawful marital status discrimination as well as victimisation.
The complaints to the Commission disclose that, as far as the applicant is concerned, the “pen-in-mouth” conduct is only one manifestation of the program which she alleges has been established for her. That is to say that although the “pen-in-mouth” conduct is the specific motivator for these proceedings, the applicant has also complained about other manifestations of a program she alleges has been established for her.
Summary of Claims
As part of this course of conduct on the part of officers of the Commonwealth and the State, the applicant asserts that the respondents engaged in conduct which involves:
… placing a pen to the mouth or in the mouth, in a manner that is prolonged, or repeated and unnatural, and in a manner that is prominent and noticeable, and noticeably odd. It includes leaving a pen clenched between the teeth or protruding from the mouth. (Paragraph 10, affidavit affirmed 26 February 2007)
The applicant also alleged that her home has been unlawfully entered. The applicant asserts that this conduct is part of the systematic course of conduct imputing to her psychiatric disability. This is confirmed by para.37 of the applicant’s affidavit affirmed 29 May 2007 when she says:
The State of NSW and the Guardianship Tribunal misunderstand my application in claiming that the “pen-in-mouth” policy is the primary focus of my application. Such conduct and Dale Watson’s other conduct, is only occurring because of the unlawfully discriminatory removal of my rights, and the unlawfully discriminatory implementation of Part III DSA services to me.
At para.220 of her affidavit affirmed 29 May 2007 the applicant particularises the less favourable treatment which she alleges she has suffered as:
a)being placed in a DSA program during employment and subsequently;
b)administration of highly invasive treatment from 4 April 2003;
c)destruction of and damage to personal belongings;
d)enforced unemployment from 2001 and enforced sale of home;
e)damage to reputation;
f)prevention from exercising legal rights;
g)inability to marry;
h)inability to have children;
i)inability to have a normal private life;
j)inability to work without being unlawfully discriminated against;
k)refusal of the right to litigate on her own behalf because of the existence of unlawfully discriminatory guardianship orders and DSA services;
l)being treated as though she has no aspirations or expectations of marrying and having children;
m)the provision of services pursuant to part.3 DSA program designed to lessen the regard in which the applicant is regarded by others both professionally and personally; and
n)the administration of medicinal treatment that adversely affects her cognitive functioning at work and while studying law part-time.
Relevant legislation
Disability discrimination is defined in s.5(1) of the Disability Discrimination Act in the following terms:
For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if, because of the aggrieved person’s disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability.
and, by virtue of s.4(1), includes a disability which is imputed to a person.
Sex discrimination is defined in s.5(1) and (2) of the Sex Discrimination Act in the following terms:
(1)For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of the sex of the aggrieved person if, by reason of:
(a) the sex of the aggrieved person;
(b) a characteristic that appertains generally to persons of the sex of the aggrieved person; or
(c)a characteristic that is generally imputed to persons of the sex of the aggrieved person;
the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of the opposite sex.
…
(2) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the sex of the aggrieved person if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons of the same sex as the aggrieved person.
The meaning of “sexual harassment” is defined in s.28A of the Sex Discrimination Act in the following terms:
(1) For the purposes of this Division, a person sexually harasses another person (the person harassed) if:
(a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or
(b) engages in other unwelcome conduct of a sexual nature in relation to the person harassed;
in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated.
(2) In this section:
“conduct of a sexual nature” includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing.
The meaning of “victimisation” for the purposes of the Disability Discrimination Act is set out in s.42(2) of that Act relevantly in the following terms:
(2)For the purposes of subsection (1), a person is taken to commit an act of victimisation against another person if the first-mentioned person subjects, or threatens to subject, the other person to any detriment on the ground that the other person:
(a) has made, or proposes to make, a complaint under this Act or the Human Rights and Equal Opportunity Commission Act 1986; or
(b) has brought, or proposes to bring, proceedings under this Act or the Human Rights and Equal Opportunity Commission Act 1986 against any person; or
(c) has given, or proposes to give, any information, or has produced, or proposes to produce, any documents to a person exercising or performing any power or function under this Act or the Human Rights and Equal Opportunity Commission Act 1986; or
(d) …
(e) …
(f) has reasonably asserted, or proposes to assert, any rights of the person or the rights of any other person under this Act or the Human Rights and Equal Opportunity Commission Act 1986; or
(g) has made an allegation that a person has done an act that is unlawful by reason of a provision of this Part;
or on the ground that the first-mentioned person believes that the other person has done, or proposes to do, an act or thing referred to in any of paragraphs (a) to (g) (inclusive).
The meaning of “victimisation” for the purposes of the Sex Discrimination Act is set out in s.94(2) of that Act and is relevantly in terms identical to those of s.42(2) of the Disability Discrimination Act.
Allegations generally
The contents of the applicant’s affidavits filed in these proceedings are not structured in a logical fashion. This presents difficulties in identifying what evidence relates to which particular allegation. Indeed, some of the evidence relates to more than one allegation of discrimination.
Sex discrimination
As already noted above at [9] the applicant says that the conduct of the first respondent about which she complains involves:
... placing a pen to the mouth or in the mouth, in a manner that is prolonged, or repeated and unnatural, and in a manner that is prominent and noticeable, and noticeably odd. It includes leaving a pen clenched between the teeth or protruding from the mouth.
The applicant’s claims of sex discrimination are based on allegations that:
a)on 17 November 2006 the first respondent, while at the bar table in other proceedings, placed her pen in her mouth and clenched it between her teeth and did so for up to ten seconds (para.11 affidavit affirmed 26 February 2007);
b)the second respondent and the first respondent, who is an employee of the second respondent, were applying the Judiciary Act1903 in a manner that was unlawfully discriminatory of her (para.13 affidavit affirmed 26 February 2007); and
c)the first respondent’s conduct was incited by the seventh and eighth respondents as a consequence of a complaint made by the applicant to the seventh respondent in 1995 concerning another person. She further alleges that the seventh and eighth respondents encouraged the third and fourth respondents to implement a policy in relation to her which involved the “pen-in-mouth” conduct (para.14 affidavit 26 February 2007).
Sexual harassment
It is to be assumed that the “pen-in-mouth” conduct is alleged to be a form of sexual harassment. At para.9 of her affidavit affirmed 26 February 2007, the applicant says that the “pen-in-mouth” conduct is “unwelcome”, echoing part of the test of sexual harassment quoted above at [13].
Disability discrimination in the administration of Commonwealth laws and programs
The applicant alleges that she has been discriminated against by the existence of the “pen-in-mouth” conduct, the establishment of the DSA program and the provision to her of involuntary treatment. She alleges that this conduct amounts to treatment which is less favourable than the treatment afforded others and amounts to disability discrimination. The applicant says:
The grounds of my complaint are that I am the subject of a programme under the Disability Services Act 1986 (Cth) (the DSA) which is unlawfully discriminatory, because it imputes to me a psychiatric disability when in fact I have no psychiatric disability whatsoever”. (para.1 affidavit affirmed 26 February 2007)
The applicant alleges in para.5 of her affidavit affirmed 29 May 2007 that the first, seventh and eighth respondents’ conduct imputes a psychiatric disability to her. She says:
Dale Watson’s conduct has been manifestly abnormal, and no explanation has been provided for her conduct, to date. The same can be said of Annette O’Neill and Julian Millar in relation to their 1995 and 1996 (respectively) conduct. (para.6 affidavit affirmed 29 May 2007)
She also says that the seventh respondent engaged in “tongue-in-cheek conduct” in 1995 and the eighth respondent engaged in “pen conduct” in 1996 deliberately in the course of their imputing to her of paranoid personality disorder (paras.41 and 42 affidavit affirmed 29 May 2007).
The applicant’s affidavits contain statements to the effect that:
a)the first and second respondents subjected her to “unwelcome conduct” imputing to her a psychiatric disability (para.9 affidavit affirmed 26 February 2007);
b)the first, seventh and eighth respondents have performed functions for the purposes of the DSA and are responsible for the conduct of a program under that Act implemented in relation to her (para.1 affidavit affirmed 4 May 2007);
c)the first, seventh and eighth respondents exercise powers conferred by the sixth respondent pursuant to the NSW Guardianship Act (para.2 affidavit affirmed 4 May 2007);
d)the conduct to which she is subjected and which occurs in her presence is designed to have her comply with a program implemented on the mistaken assumption that she has a psychiatric disability (para.4 affidavit affirmed 4 May 2007);
e)the imputation to her of psychiatric disabilities was used to prevent her from working for several months in 2001 and she suggests that it led to the provision of DSA diagnostic and assessment services and to further unemployment (paras.18, 19 and 20 affidavit affirmed 4 May 2007);
f)“… in 1994 and from that time onwards, two CRS employees … were imputing to me a paranoid personality disorder and delusional conduct” (para.58 affidavit affirmed 29 May 2007). The applicant goes on to infer that the third respondent was officially imputing to her a paranoid personality disorder “by the provision to me of Part III DSA services and programmes” (para.59 affidavit affirmed 29 May 2007);
g)the DSA program led to her receiving no birthday cards in November 2000 (para.168 affidavit affirmed 29 May 2007). This represented the deliberate removal of emotional support because she was not complying with the program by not behaving as though she was insane, paranoid and schizophrenic. The applicant says that the purposes of the DSA program involve her never marrying, never having children, and being categorised “virtually as a single career-woman whose sole aim in life was to have a career” (para.161 affidavit affirmed 29 May 2007). The applicant says these were the consequences of being incorrectly imputed with a psychiatric impairment;
h)the first, second, seventh and eighth respondents:
… have tried and continue to, act on my behalf in litigation because of the existence of DSA services and guardianship orders which I allege to be unlawfully discriminatory. (paras.199 and 200 affidavit affirmed 29 May 2007)
i)the first respondent exercised powers under the Judiciary Act as a solicitor employed by the second respondent to act on the applicant’s behalf, but behind her back, and thereby performed functions for the purposes of a DSA law or program (para.201 affidavit affirmed 29 May 2007).
The applicant alleges similarly to her DSA program allegations that, by reason of the imputation to her of mental illness, she has been given treatment without her consent and without her knowledge:
I have been administered involuntary medical treatment since 4 April 2003 which is unlawfully discriminatory …
Consent for involuntary treatment has been obtained under the Guardianship Act 1987. However I have never been informed of this, consulted, nor have I authorised, consented to or signed for the appointment of an enduring guardian, any other form of guardian, or a responsible person to consent to treatment, nor to in any other way act on my behalf. I do not know the identity of the person who has consented to this. (paras.3 and 4 affidavit affirmed 26 February 2007)
The applicant says that the use of a responsible person to consent to treatment of her is unlawfully discriminatory.
Victimisation – Sex Discrimination Act, Disability Discrimination Act
The victimisation that the applicant alleges relates to the complaints she made against an SSAT co-worker in 1995 and her 2001 complaint against the Refugee Review Tribunal (“RRT”) and its then principal member (para.40 affidavit affirmed 29 May 2007). She also refers in para.16 of her affidavit of 26 February 2007 to that 2001 complaint to the Commission against the RRT and its principal member and to her 2003 complaints to the Commission against those parties as well as against the SSAT, the third, fourth, fifth and sixth respondents and others.
The applicant alleges that the SSAT committed acts of victimisation against her and particularly so by what she says was the commencement of treatment which she says occurred on 4 April 2003. In substantiation of this allegation the applicant points to her letter of 14 March 2003 to the Health Care Complaints Commission and says that she showed a copy of this to a doctor on 17 March 2003. She alleges:
The respondents believed I was proposing to or about to exercise my rights under anti-discrimination law, and were already reacting to my 2001 complaint with the provision of diagnostic and assessment services. The 4 April 2003 treatment was designed to stymie further complaints. (para.39 affidavit affirmed 29 May 2007)
In para.3 of her affidavit affirmed 4 May 2007 the applicant says that the seventh and eighth respondents perform similar functions and exercise similar powers and were responsible for the conduct of a DSA program at some point during the applicant’s employment with the SSAT between 1992 and 1997.
Application for summary dismissal
The NSW respondents’ applications for summary dismissal are brought pursuant to s.17A of the Federal Magistrates Act 1999 and r.13.10 of the Federal Magistrates Court Rules 2001 (“Rules”). The Commonwealth respondents’ application is brought pursuant to the rule alone. Relevantly, s.17A provides:
(2) The Federal Magistrates Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is defending the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
Rule 13.10 provides:
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a)the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
(b)the proceeding or claim for relief is frivolous or vexatious; or
(c)the proceeding or claim for relief is an abuse of the process of the Court.
No reasonable prospects of success
Section 17A was inserted into the Court’s statute by the Migration Litigation Reform Act 2005 and commenced on 1 December 2005. It was designed to have general application and to strengthen the power of the Court to deal with unmeritorious proceedings by broadening the grounds on which the Court can summarily dispose of them: Explanatory Memorandum to Migration Litigation Reform Bill 2005. The fact that the purpose of the section is to make obtaining summary dismissal easier than previously has been recognised: Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 at [27]; Duncan v Lipscombe Child Care Services Inc [2006] FCA 458; White Industries Aust Ltd v Commissioner of Taxation [2007] FCA 511 at [54]; Balding v Ten Talents Pty Ltd [2007] FMCA 145; Vivid Entertainment LLC v Digital Sinema Australia Pty Ltd [2007] FMCA 157.
In Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd Rares J considered s.31A of the Federal Court of Australia Act 1976 which is equivalent to s.17A of the Federal Magistrates Act 1999. After considering the authorities his Honour concluded that where there is a real issue of fact to be decided, it was appropriate that the matter went to trial. His Honour described the situation of there being a real issue of fact as being where the evidence is not all one way so that only one conclusion can be said to be reasonable, as considered in Hocking v Bell (1947) 75 CLR 125 at 130 – 131. His Honour also suggested that the matter ought to go to trial where there is a real issue of law of a similar kind. In his Honour’s view:
… in assessing what reasonable prospects of success are for the purposes of s.31A, the Court must be very cautious not to do a party an injustice by summarily dismissing the proceedings where, in accordance with the principles in Hocking v Bell (1947) 75 CLR 125, contested evidence might reasonably be believed one way or the other so as to enable one side or the other to succeed. As soon as the evidence may have such an ambivalent character prior to a final determination, I am of opinion that then, as a matter of law, at that point there are reasonable prospects of success within the meaning of s.31A. Unless only one conclusion can be said to be reasonable, the moving party will not have discharged its onus to enliven the discretion to authorize a summary termination of the proceedings which s.31A envisages. [at 45]
Those principles were summarised by Jacobson J in Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd [2006] FCA 1416 at [30] in the following terms:
• In assessing whether there are reasonable prospects of success, the Court must be cautious not to do an injustice by summary dismissal.
• There will be reasonable prospects of success if there is evidence which may be reasonably believed so as to enable the party against whom summary judgment is sought to succeed at the final hearing.
• 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.31A cannot be enlivened.
His Honour also noted that it would be wrong to determine an application to dismiss proceedings on a narrow approach to the pleadings where the evidence was incomplete and perhaps ambivalent and which might, at a final hearing, and with amended pleadings, produce a verdict for the applicant. See also Rogers v Asset Loan Co Pty Ltd & Ors [2007] FCA 195.
In the context of this Court, what Jacobson J said in Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd should be considered in the light of Lander J’s comments in Rana v University of South Australia [2004] FCA 559, notwithstanding that Lander J was speaking prior to the introduction of s.17A:
In my view, because the FMC Rules do not require pleadings; the parties are not obliged to tender all their evidence when the application and response is filed; there are few, if any, interlocutory processes available; and the Federal Magistrates Court is a low cost court, the Federal Magistrates Court should be very cautious about summarily dismissing an applicant’s proceeding. That course should only be adopted when it is clear, beyond any doubt, that the applicant has not, and cannot, articulate in writing a reasonable cause of action. As I have already said, the philosophy of the Federal Magistrates Court is to provide inexpensive justice and a streamlined dispute resolution process. Litigants will often be self-represented and the documents they rely on as founding their claim will no doubt often be imprecisely articulated. In those circumstances, there is even more reason for the Federal Magistrates Court to be cautious before summarily dismissing an applicant’s claim. (at [75])
The question here, as was discussed by French J in Fortron Automotive Treatments Pty Ltd v Jones (No. 2) [2006] FCA 1401, is whether the applicant has any “reasonable prospect” of successfully prosecuting “the proceeding” or the “part of the proceeding” in issue. Section 17A is concerned with the bringing and defending of proceedings, not just with pleadings; with substance not just with form: White Industries Aust Ltd v Commissioner of Taxation at [50] per Lindgren J.
In this Court in Vivid Entertainment LLC v Digital Sinema Australia Pty Ltd, Driver FM considered the proper scope of s.17A and the circumstances which might enliven its operation. Having considered the authorities, his Honour agreed with and applied the summary of principles set out by Jacobson J in Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd. His Honour also commented that in considering when an apparently hopeless case can be saved by amendment or further evidence, the conduct of the party requiring such indulgence and the circumstances of the proceedings could be considered when determining whether that indulgence would be given. Consequently, Driver FM added another point to Jacobson J’s summary:
• The Court should have regard to the possibility of amendment and additional evidence in considering whether only one conclusion can be said to be reasonable. In that consideration, the conduct of the parties and the other circumstances of the case may be relevant. (at [30])
Recently, the Full Court of the Federal Court has considered s.31A of the Federal Court of Australia Act 1976, in Jefferson Ford Pty Limited v Ford Motor Company of Australia Limited [2008] FCAFC 60. Their Honours’ decision was discussed by Edmonds J in Spiteri v Nine Network Australia Pty Limited [2008] FCA 905. As his Honour observed, in the Jefferson Ford case Finkelstein and Gordon JJ expressed views which differed from each other and from the views expressed by Rares J in Boston Commercial Services Pty Limited v GE Capital Finance Australasia Pty Limited [2006] FCA 1352, while Rares J noted that the parties to the appeal had accepted that the test to be applied was the test which he had stated in Boston Commercial Services Pty Limited and, as they had not argued the point, concluded that it was neither necessary nor appropriate to examine the issue in that appeal.
In the Spiteri case Edmonds J did not reach an express conclusion regarding which of their Honours’ judgments was to be preferred and I am of the view that in the absence of a clear expression by the Full Court of the Federal Court to the contrary, I should apply the test which was expressed by Rares J in Boston Commercial Services Pty Limited, as approved in subsequent decisions in the Federal Court and as elaborated on by Driver FM in Vivid Entertainment LLC v Digital Sinema Australia Pty Limited [2007] FMCA 157 at [30].
Respondents’ submission
The Commonwealth respondents assert that there is no underlying factual basis for the applicant’s allegations in the sense that there is no basis to allege that orders have been made whereby a guardian or responsible person has authorised the involuntary treatment of the applicant as a result of the imputation to her of a psychiatric disability.
The Commonwealth respondents submitted that no evidence of the conduct alleged by the applicant had, in fact, been adduced by her. It was submitted that the applicant’s affidavits filed in these proceedings affirmed on 26 February 2007, 4 May 2007 and 29 May 2007 do not contain evidence such as would support the claims being made and that those affidavits contain deductions rather than evidence. Said to be demonstrative of this issue is the first paragraph of the applicant’s affidavit affirmed 29 May 2007 which commences with the words:
I allege that I have been…
Annexed to the affidavit of Elizabeth Mee sworn 20 April 2007 is a letter from the NSW Crown Solicitor’s Office dated 20 April 2007 requesting further and better particulars of the applicant’s allegations made in her application and in her affidavit affirmed 26 February 2007. The NSW respondents relevantly sought the following particulars:
1.I refer to paragraph 5 of your application, and paragraph 6 of your affidavit where you assert that the State of NSW is providing you with programmes and services under the Disability Services Act 1986 (Cth), and eligible psychiatric services. Please provide full particulars of the programmes and services allegedly provided to you and which you rely upon as constituting unlawful disability and/or sex discrimination by the State of NSW or persons for whom the State of NSW is liable. In relation to any such services, please provide:
(a) The form or nature of the services provided;
(b)The dates on which the services have been provided, and/or the regularity of the services;
(c) The places at which the services have been provided;
(d)The names and addresses of the persons providing the services; and
(e)The capacity or role in which the persons provided the services, and the basis on which it is said that the State of NSW is responsible for the acts of such persons.
2.I refer to paragraph 4 of your affidavit and paragraph 6 of your application where you say that orders and powers have been granted under the Guardianship Act 1987 (NSW), and that consent for certain treatment has been obtained under that Act. In relation to that consent or orders, please provide:
(a)The date such orders were made, along with details of the orders made and/or a copy of the orders made;
(b)The date any such consents were given, along with details of the consent given and/or a copy of the consent given;
(c)The names and addresses of the persons who are alleged to have sought the orders and/or given their consent; and
(d)The capacity or role in which the persons who sought the orders or gave the consent, and the basis on which it is said that the Guardianship Tribunal is responsible for the acts of such persons.
3.In paragraph 5 of your application and paragraph 3 of your affidavit you refer to medical treatment which you appear to allege is being administered to you. Please provide full particulars of any medical treatment allegedly given to you which you rely upon as constituting unlawful discrimination by the State of NSW or persons for whom the State of NSW is liable. In relation to any such treatment, please provide:
(a) The form or nature of the treatment provided;
(b)The dates on which the treatments have been provided, and/or the regularity of the treatments;
(c)The places at which the treatments have been provided;
(d)The names and addresses of the persons providing the treatments; and
(e)The capacity or role in which the persons provided the treatments, and the basis on which it is said that the State of NSW is responsible for the acts of such persons.
The applicant responded by letter dated 4 May 2007 (Exhibit 2). With that letter she enclosed another letter dated 23 April 2007 providing particulars in respect of these proceedings and four others. In that letter of 23 April 2007 the applicant states that pursuant to the bilateral agreement signed between the Commonwealth and the State of NSW on 17 February 2004 the applicant was being provided with accommodation support services, community support services, employment services when she is employed, advocacy services and information services and that the State respondents are involved in the provision of those services.
In that handwritten letter of nineteen pages, the closest the applicant comes to responding to the requests made by the NSW respondents is where she says that:
a)certain services were provided to her during the course of her employment at the SSAT between 20 May 1992 and 31 October 1997 (pp.3 and 6);
b)pt.3 of the Guardianship Act was being applied in relation to her and she was being provided with major medical treatment (pp.3 and 5);
c)on Saturday 8 February 2003 she was administered treatment that “would result” in severe abdominal pain and nausea (p.7);
d)“All of these treatments are administered to me in my places of dwelling, and in some cases, wherever I am as I go about my daily activities” and “it involves the area health services, and those in my local residential area at any given time, in conjunction with a psychiatrist to prescribe” (p.7);
e)“It involves persons who are qualified to administer treatment doing so when I am not conscious, or using means that do not always require physical touching of my person by another person” (p.7);
f)she is under constant observation “to the greatest extent possible, wherever I go or am” as part of diagnostic and assessment services being provided (p.7);
g)since 4 April 2003 she has “been given drugs to result in that absence of a startle response, along with lithium or something like lithium, anti-depressants, and I believe too some form of psychotropic drug additional to these” (p.8);
h)she included in “community support services and/or psychiatric disability services” telephone calls made by Catherine Lawrance in 2001, Colin Thompson in 2001 and Stephen Hodges on 13 September 2002 together with “the artificial transmission of noise, smells and fragrances into places of dwelling, the artificial manipulation of temperature in places of dwelling, oxygen depletion, sleep deprivation and other deprivations and encouraging people to assault me” (pp.10 –11); and
i)she was involuntarily administered Risperdal at some stage (p.18).
Even so, at p.4 of that letter the applicant says:
I do not know what arrangement exists whereby I am administered involuntary medical treatment.
At p.5 she says:
I have not appointed a guardian, nor authorised another to sign on my behalf. As the provisions of s.6C of the Act have not been complied with, I allege that the Guardianship Tribunal has made guardianship orders in relation to me under Part 3 of the Act.
The applicant’s letter makes clear that she does not know who has been appointed her guardian nor when or how this happened.
At pp.11-12 she says:
I allege that my employer, the SSAT, placed me on DSA services in or around 1994, and that such services (Part III) required a guardian, and so for this reason orders were made. This involved the SSAT contacting DFaCSIA or whatever Department then administered the DSA (DFaCSIA did not exist in 1994) and CRS Australia. The delegate of the Secretary (eg s.20 DSA) would have arranged for diagnostic and assessment services and other eligible services, via contact with the State of NSW – the Department of Health, and also the Department which holds the Community Services portfolio, and/or Disabilities portfolio. These state agencies would have facilitated the obtaining of guardianship orders. Such orders were obtained for the sole purpose of enabling the State of NSW and the Commonwealth to provide me with Part III DSA services.
The applicant also speculates as to who may have provided the treatment she alleges she has received.
In her letter providing further and better particulars the applicant characterises part of her claim in the following terms:
In relation to victimisation, asking for the consent to the 4 April 2003 treatment is a detriment, as is the giving of consent, and, as is the guardianship order or instrument pursuant to which a guardian acted in consenting. Similarly, the diagnostic and assessment services commencing in 2001 with Dr Moore are detriments. This is over and above that which is unlawfully discriminatory under ss.4(k), 5(1) and 29DDA.
The conduct of Lucinda Howe and Andrea Howard in 2000 and 2001 also amounts to victimisation as well as unlawful discrimination under ss.4(k), 5(1) and 29DDA. They would have been acting on misinformation from the State of NSW and the Commonwealth. (p.19)
Otherwise, the letter providing further and better particulars is unresponsive, unspecific, unilluminating and peppered with expressions such as “I allege that”, “I do not know” and “I am aware”.
The NSW respondents submitted that the further and better particulars provided by the applicant really make no reference to who committed the acts alleged by the applicant, when the acts were committed or where they were committed.
The applicant
At para.27 of her affidavit of 29 May 2007 the applicant deposes to having made enquiries of the Guardianship Tribunal as well as having made freedom of information applications to it, the NSW Department of Health and a number of Commonwealth agencies. She deposes to also having made enquiries under the Privacy Act 1988 and the Health Records and Information Privacy Act 2002 (NSW) of five doctors and other individuals. She deposes to having been provided with “no information whatsoever, that informs me of my rights, and similar”. The reason for this she says is:
… because, whilst the information is there, my rights have been removed and I have been routinely told falsehoods and lies and been refused access to any and all information as a consequence. (para.28 affidavit affirmed 29 May 2007)
Having failed to obtain information through those means, the applicant now seeks discovery against the respondents. She asserts that the Guardianship Tribunal is accustomed to lying to her and that it has continued to do so in this Court (para.31 affidavit affirmed 29 May 2007). As far as the Commonwealth is concerned the applicant says that it is refusing to tell the truth and admit to the existence of documents or grant her access to them and that it is doing so “precisely because I am being imputed with psychiatric disabilities by way of the provision of DSA diagnostic and assessment services, and my rights have been removed” (para.64 affidavit affirmed 29 May 2007).
At para.64 of her affidavit affirmed 29 May 2007 the applicant deposes to her attempts to obtain evidence to support her claims:
Not one single medical document was admitted to as existing when I made 2004 Freedom of Information enquiries of Commonwealth agencies, including documents I know I gave e.g. Dr Walska’s October 2000 certificate, with the exception of Dr McMurdo’s 6 December 1995 certificate. None of the documents Dale Watson admitted to existing on 18 May 2005 were disclosed as existing, let alone made the subject of access being given to me, in the SSAT, RRT, Centrelink and CRS FOI proceedings I was involved in.
Perhaps the nub of the applicant’s claims is contained in para.63 of her affidavit of 29 May 2007 when she says:
I allege I have been provided with diagnostic and assessment services under s.20 of the DSA, and that I am currently receiving such services, and I can prove this beyond any doubt by general discovery of CRS Australia and DFaCSIA, the SSAT, Centrelink and the RRT, the Guardianship Tribunal and the State of NSW.
The applicant deposes to having deduced that she is the subject of orders under pt.3 of the Guardianship Act and is being administered treatment in accordance with pt.5 of that Act (para.32 affidavit affirmed 29 May 2007).
To give objective substance to her allegations of being subjected to interference by disability service providers unlawfully entering her places of dwelling, commencing at para.205 of her affidavit affirmed 29 May 2007 the applicant refers to street directory pages which are Annexure A to her affidavit affirmed 4 May 2007. She deposes to having moved to Marrickville in March 2007 and researching the location of local libraries. The applicant says that although map 73 of her street directory indicates a library on Harnett Street, Marrickville, when she went there there was no library, only some established houses. Further, map 63 of her street directory indicates a library on New Canterbury Road at Petersham but, again, attendance revealed no library was located where the map suggested it ought to be. Instead, there were rows of “decades-old shops”. The applicant found the Marrickville library at quite a different location, but one which is also referred to at map 73 of her street directory. The applicant further deposes to having obtained a Marrickville council map of the local area, prepared by the same company which published her street directory, and points out that the two non-existent libraries are not recorded on that map. She therefore submits that her street directory has been tampered with. The applicant says at para.216 of her affidavit of 29 May 2007:
I file this as objective evidence that I am being treated as though I am insane, and psychiatrically impaired, and that my places of dwelling have been and are being entered by persons other than I and not authorised by me, and my belongings are being interfered with, as part of DSA services and programmes.
Reasonable prospects of success
I cannot conclude that the applicant has reasonable prospects of success in these proceedings. It must be observed that nothing the applicant has included in her affidavits gives her allegations any real or credible factual foundation apart from her eye-witness accounts of the first respondent putting a pen in her mouth (paras.10 and 11 affidavit affirmed 26 February 2007), the seventh respondent poking her tongue in her cheek and, presumably, the eighth respondent putting a pen in his mouth (paras.41 and 43 affidavit affirmed 29 May 2007). The existence of the DSA program is no more than speculation. Its postulated existence appears to be the result of deductions by the applicant from events which have occurred in her life or which she perceives as having occurred. Based on the evidence contained in the applicant’s affidavits I do not draw the conclusion that it is even arguable that the claimed DSA program existed or exists.
Significantly, no evidence has been put before the Court by the applicant to suggest that any of the respondents were aware of the alleged DSA program. Most particularly, there is no arguable basis to allege, on the evidence relied on by the applicant, that the first respondent, whose conduct at a court hearing led to the initiation of these proceedings, knew of the claimed program and had been recruited to be one of its operatives.
Specifically as to the sixth respondent, the affidavit of Linda Sengstock, the business services unit manager of the Guardianship Tribunal, sworn 29 May 2007, demonstrates that no records held by the respondent Tribunal make any reference to the applicant other than those records generated by the applicant’s own inquiries of the Tribunal and that had she been the subject of Tribunal orders, there would have been a record. Indeed, Miss Sengstock says at para.8 of her affidavit that the Tribunal’s records keep note of applications made to it regardless of whether the application proceeds to determination at a Tribunal hearing. Based on Miss Sengstock’s evidence, which I accept, including her evidence that she conducted nineteen searches of the Tribunal’s records to find any trace of the applicant, I accept that, other than files which were generated because the applicant caused them to be created, the Tribunal has had no dealings with or in respect of the applicant. This has the consequence that the applicant has no reasonable prospects of success in her allegations that the sixth respondent was involved in the alleged discriminatory conduct.
The applicant explains her inability to present adequate evidence to the Court as the result of the determination by the respondents to refuse to provide her with documents to which she is entitled to have access. It is for that reason that she seeks discovery from them. The applicant’s conclusion that she is deliberately being denied access to these documents is a far-fetched one and one for which there is no rational justification based on the contents of the applicant’s affidavits and in light of Miss Sengstock’s evidence.
In my view, only one conclusion is reasonably open on the material before the Court, that being that the applicant’s application must fail.
The applicant is an experienced litigant in person and was put on notice of the orders sought by the respondents. She has filed three affidavits in these proceedings, the last being particularly detailed. I conclude that had the applicant had any additional evidence of relevance to these proceedings she would have put it before the Court. Although I am mindful of Lander J’s comments in Rana’s case and Driver FM’s observations in Vivid Entertainment LLC v Digital Sinema Australia Pty Ltd, I find no reason to conclude that any additional relevant evidence is likely to be adduced in these proceedings or that any amendment will strengthen the applicant’s case.
However, these are not the only matters which need to be considered in the context of the respondents’ applications for summary dismissal. The second aspect which must be considered is the nature of the only claim for which there is any direct evidence, namely the “pen-in-mouth” conduct, and whether that conduct amounted to sex discrimination and sexual harassment or either of them.
Dealing first with the allegations arising out of the claimed breaches of the Sex Discrimination Act, I find that the conduct in question, even if proved, would not amount to sex discrimination or sexual harassment. As to the former, the conduct in question does not contravene s.5 of the Sex Discrimination Act because it cannot be perceived as amounting to treatment which is less favourable than, in circumstances that are the same or are not materially different, the relevant respondents treated or would treat a male. Moreover, the evidence advanced by the applicant does not support a conclusion that the “pen-in-mouth” conduct or the “tongue-in-cheek” conduct she relies on was actually directed at her and that the conduct in fact amounted to being “treated” by the relevant respondents in any way whatsoever, let alone less favourably.
As to sexual harassment, I do not find that the “pen-in-mouth” and “tongue-in-cheek” conduct can properly be characterized as sexual in nature. Moreover, I do not think it arguable that a reasonable person, having regard to all the circumstances, would have anticipated that the applicant would have been offended, humiliated or intimidated by that conduct. Indeed, the applicant herself was not offended, humiliated or intimidated by the seventh and eighth respondents’ conduct at the time it occurred (paras.41 and 45 affidavit affirmed 29 May 2007) and, as far as the first respondent is concerned, the applicant does not relevantly go further than saying the conduct was unwelcome (para.9, affidavit affirmed 26 February 2007).
As to the allegation that the “pen-in-mouth” conduct amounts to disability discrimination, it is not maintainable because it cannot be perceived as amounting to treatment which is less favourable than, in circumstances that are the same or are not materially different, the relevant respondents treated or would treat another person without the alleged disability or imputed disability. In other respects, the reasons for concluding that the conduct did not amount to sex discrimination apply to the allegation that it amounted to disability discrimination.
Vexatious proceedings/abuse of process of the Court
Quite apart from the issue of whether the applicant has reasonable prospects of success in these proceedings is the issue of whether the proceedings are vexatious or an abuse of the process of the Court.
Other proceedings
The Commonwealth and NSW respondents, between them, tendered copies of several documents filed by the applicant in proceedings in this Court numbered SYG2015/2006, SYG2109/2006, SYG655/2007 and a proceeding where publication of the applicant’s name is prohibited. The judgment of Smith FM in proceedings SYG2015/2006 was also tendered. In relation to these various proceedings:
SYG2015/2006
The second, third, fourth, fifth and ninth respondents in these proceedings are also respondents in proceedings SYG2015/2006. A copy of the amended application and a copy of the points of claim in those proceedings is part of Exhibit 1. In those proceedings the applicant claims a written apology from, and damages awards, including aggravated and exemplary damages, against those respondents and alleges that each of them has committed unlawful discrimination. The statutory breaches alleged against those respondents in these proceedings are almost identical to the statutory breaches alleged against them in proceedings SYG2015/2006.
In the points of claim in those proceedings the conduct the subject of the complaint is described as “placing a pen to the mouth or in the mouth” and it is alleged that this amounts to unlawful discrimination by the imputation to the applicant of a psychiatric disability as well as being lewd conduct of a sexual nature. In the points of claim the applicant alleges:
The pen-in-mouth policy has been implemented as part of an unlawfully discriminatory treatment programme under s.20(3) or s.20(5) of the DSA. It has been implemented in conjunction with the granting of orders or powers to a guardian or responsible person under the Guardianship Act 1987. (para.15)
On 30 November 2007 Smith FM dismissed the applicant’s application.
SYG2109/2006
The third, fourth and ninth respondents in these proceedings are also respondents in proceedings SYG2109/2006. Although the fifth respondent is not a respondent to those proceedings, the applicant did join the NSW Minister for Aging, Disability and Home Care and the Director-General of the NSW Department of Health. These alternative respondents would appear to represent, as far as the State of NSW is concerned, a distinction without a difference. Again, the statutory breaches alleged in these proceedings are almost duplicated in those other proceedings. The essential allegations in proceedings SYG2109/2006 are the same as those in these proceedings although some personalities are different.
Proceedings where publication of the applicant’s name is prohibited
The third, fourth, fifth, seventh, eighth and ninth respondents in the instant proceedings are also respondents in these other proceedings. Again, apologies and damages including aggravated and exemplary damages are sought from most parties and the statutory breaches alleged in the instant proceedings are, in almost all respects, also alleged in these other proceedings.
The facts alleged in these other proceedings echo some of the allegations made in the instant proceedings.
SYG655/2007
The second, third, fourth, fifth, sixth, seventh and ninth respondents in these proceedings are also respondents in proceedings SYG655/2007 and the statutory breaches alleged in proceedings SYG655/2007 are almost identical to the statutory breaches alleged in these proceedings. Again, the applicant asserts that she is the subject of a program under the Disability Services Act which is unlawfully discriminatory because it imputes to her a psychiatric disability, that she has been administered involuntary medical treatment, consent for which has been obtained under the Guardianship Act and that, again, people have raised their pens to their mouths. In the points of claim in those proceedings the applicant alleges:
39.The pen-in-mouth conduct is also conduct that manifestly imputes to me a psychiatric disability. I am being treated as though I am insane. Normal conventions of civilised and acceptable behaviour have been discarded. My feelings are totally ignored, offended, disregarded. In fact I felt great offence and distress.
40.The pen-in-mouth policy also amounts to less favourable treatment on the basis of marital status. A married woman would not be subjected to such treatment. Sections 6(1), 22, 26, 28A(b), 28G, 28L SDA.
41.The pen-in-mouth policy is also contradictory of my goals and aspirations to marry and have children, and is a part of the less favourable treatment I have been subjected to under ss.4(k), 5(1), 24, 29 and 43 of the DDA.
Submissions on the other proceedings
The Commonwealth respondents submitted that in those other proceedings in the Court, the applicant alleges disability and sex discrimination on the part of numerous parties. The Commonwealth respondents submitted that several parties had been joined in all the applicant’s proceedings in this Court and that all the proceedings shared common, underlying factual allegations, namely that:
a)the applicant is being imputed with a psychiatric disability;
b)for which she is receiving involuntary treatment;
c)following orders made granting the NSW Guardianship Tribunal powers to consent to such treatment;
d)pursuant to which orders a guardian or responsible person consented to such treatment being administered to the applicant without her knowledge; and
e)the respondents to the proceedings are engaged in a “program” by which this conduct is directed to the applicant.
The Commonwealth parties submitted that the applicant’s documents filed in the other four proceedings referred to demonstrated that all the applicant’s claims boiled down to orders allegedly made in connection with the Guardianship Tribunal, alleged subsequent medical treatment and the imputation of psychiatric disabilities by a large number of respondents. The Commonwealth parties submitted that the applicant’s litigation history was characterised by numerous proceedings arising out of the same claims without evidentiary basis. The Commonwealth parties also submitted that the applicant’s conduct was persistent, vexatious, onerous and an abuse of process and had to be stopped, asking rhetorically how the use of a pen amounted to the imputation of a disability and why would it lead to a claim.
The State respondents made similar submissions saying that they were being vexed more than once in relation to the same matters and had been joined in five proceedings in an eight-month period.
The State parties also drew attention to the contents of the applicant’s letter providing particulars of her claim noting that, in relation to the provision of psychiatric services no reference is made to what the named practitioners did which is alleged to have been discriminatory and, where the applicant alleges interference with her property and belongings, she fails to identify who did this and when. As to the letter generally, the State parties submit that the applicant’s failure to provide details of who did the things alleged, and when and where the things allegedly occurred, shows that the claim is vexatious.
The State parties submitted that the applicant’s claim is one based on beliefs, characterised by a lack of specificity and it was not open on the evidence before the Court to make a finding of discrimination because the Court would need to identify conduct of a person for whom the State of NSW or the Guardianship Tribunal were responsible.
Finally, the Commonwealth respondents have drawn the Court’s attention to the fact that even the proceedings in this Court are not the first time that the applicant has made such allegations. On 2 August 2004, Windeyer J in the protective list of the equity division of the NSW Supreme Court gave judgment in proceedings brought by this applicant against the NSW Guardianship Tribunal and others in which his Honour made the following comments:
The plaintiff claims that treatment is being administered to her without her consent. By “treatment”, I mean medical treatment in the widest aspect. She does not know who is administering the treatment to her and, on the evidence, she does not know that it is being administered, but she claims that she knows that it is.
She is seeking certain relief. Whether or not she is entitled to any relief cannot be decided yet. What can be decided is that she has no claim against the Guardianship Tribunal. No proceedings have been taken in that Tribunal seeking a guardianship order, or any other order. She is not on the record of that Tribunal. She has no basis to consider that the Guardianship Tribunal has, in any way, interfered with her legal rights. The claim against the Guardianship Tribunal is a clear abuse of process. There is no claim. Her claim must be dismissed.
Consideration
When purporting to seek justice an applicant may not do something which is oppressive and vexatious. Applicants should not merely harass other parties; in such circumstances, the court will interfere: The Atlantic Star [1974] AC 436 at 466. It is noted in Pridmore v Magenta Nominees Pty Ltd (1999) 161 ALR 458 at 463 [24] that “vexatious” has been held to be apt to describe an action which is a sham or which cannot possible succeed (see also Burton v President of the Shire of Bairnsdale (1908) 7 CLR 76 at 92). Additionally, Brennan J held in Walton v Gardiner (1993) 112 ALR 289 at 312:
… the institution of proceedings which will inevitably and manifestly fail or which unnecessarily duplicate proceedings already pending or determined are incapable of serving a legitimate purpose. They are simply vexatious or oppressive in the sense that they impose on the respondent party an unnecessary injustice, that is 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.
In this case, every respondent, other than the first respondent, has been joined in other proceedings by the applicant which essentially raise issues the same as the issues raised in these proceedings. With the exception of the proceeding SYG655/2007, which I infer were filed immediately after these proceedings were filed, given that they have consecutive file numbers and were filed on the same day, all the other proceedings referred to by the respondents pre-dated these proceedings. The duplication in allegations and factual assertions and the requirement placed by the applicant on the various respondents to meet all these proceedings is vexatious. Consequently, even if they had reasonable prospects of success, the proceedings would be dismissed as against all the respondents other than the first respondent on the basis that they are vexatious.
The multiplicity of proceedings against the same parties raising the same issues is also an abuse of the process of the Court. This finding provides an additional basis for the conclusion that the proceedings should be dismissed at this stage.
Vexatious litigant
The respondents also seek orders pursuant to r.13.11 of the Rules. Rule 13.11 provides:
(1) If the Court is satisfied that a person has instituted a vexatious proceeding and the Court is satisfied that the person has habitually, persistently and without reasonable grounds instituted other vexatious proceedings in the Court or any other Australian court (whether against the same person or against different persons), the Court may order:
(a) that any proceeding instituted by the person may not be continued without leave of the Court; and
(b) that the person may not institute a proceeding without leave of the Court.
(2) An order under subrule (1) may be made:
(a) on the Court’s own motion; or
(b) on the application of the Attorney-General or Solicitor-General of the Commonwealth or of a State or Territory; or
(c) on the application of the Registrar.
(3) If a person (a vexatious litigant) habitually and persistently and without reasonable grounds institutes vexatious proceedings in the Court against another person (the person aggrieved), the Court may, on application of the person aggrieved, order:
(a) that any proceeding instituted by the vexatious litigant against the person aggrieved may not be continued without the leave of the Court; and
(b) that the vexatious litigant may not institute any proceeding against the person aggrieved without leave of the Court.
(4) A person seeking an order under this rule must file an application.
(5) The Court may rescind or vary any order made under this rule.
(6) The Court must not give a person against whom an order is made under this rule leave to institute or continue any proceeding unless the Court is satisfied that the proceeding is not an abuse of process and that there is prima facie ground for the proceeding.
Section 87(1) of the Federal Magistrates Act provides that the Rules of Court may make provision for or in relation to:
(c) the prevention or termination of vexatious proceedings.
Both r.13.11 and s.87(1)(c) are in turn similar to equivalent provisions in the Federal Court Rules and the Federal Court of Australia Act 1976.
The rule requires that it must be shown that the applicant has instituted a vexatious proceeding and:
·habitually and persistently;
·and without reasonable grounds;
·instituted other vexatious proceedings;
·in this or in another Australian court (whether against the same person or against different persons).
These elements of the test were discussed by Sackville J in Ramsey v Skyring (1999) 164 ALR 378 from which the following principles may be distilled:
a)“habitually” suggests that the institution of such proceedings occurs as a matter of course or almost automatically when the appropriate conditions (whatever they may be) exist;
b)“persistently” suggests determination and continuing in the face of difficulty or opposition, with a degree of stubbornness; and
c)“without any reasonable ground institutes a vexatious proceeding” is an objective test and refers to whether the proceedings are in fact vexatious rather than whether they have been instituted vexatiously, it being immaterial that the respondent believes in the justice of his or her argument.
In Ramsey v Skyring the respondent had argued in many proceedings, including first instance and appeal proceedings in the Federal Court and the High Court, that the Constitution prohibited the creation of legal tender in forms other than coins containing gold or silver with the consequence that provisions of the Reserve Bank Act 1959 and the Currency Act 1965 establishing or recognising paper money or modern coins as legal tender were invalid. He made that argument in many cases involving the payment of money, the receipt of money, the payment of debts, taxation assessments, bankruptcy, security for costs, nomination deposits for candidates for election to the House of Representatives and entitlement to unemployment benefits.
In that case, Sackville J observed that in every one of the proceedings the applicant asserted, in one form or another, that the paper currency and coinage that are used in Australia were invalid as was their authorising legislation and that, without exception, he had been unsuccessful in making out those allegations. His Honour said that the first such proceeding, which was prior to a determination of the issue by the Full Court of the Federal Court or by the High Court, could not be said to have been vexatious or instituted without any reasonable ground, however, thereafter:
… any reasonable observer would have concluded that the respondent's contentions as to the invalidity of the currency could have no reasonable basis. Certainly, once Deane J had ruled against the respondent's contentions in 1985, and his decision had been affirmed on appeal, the respondent's contentions were doomed to failure in this court and, for that matter, in any other Australian court. They were, to use the words of Roden J in Attorney-General v Wentworth, utterly hopeless. They remained so thereafter. (at 391 [62])
His Honour characterised that litigant’s attitude to litigation in the following terms:
The simple fact is that the respondent has refused, or been unable, to accept the fact that the currency issues have been authoritatively decided against him. He has obstinately attempted to raise the same arguments in this court on many occasions, over a long period. In any sense of the expression, he has “habitually and persistently” and without any reasonable ground instituted vexatious proceedings in this court. (at 391 [63])
In Jones Lang Lasalle (Qld) Pty Ltd v Dart [2005] FCA 1614, the Darts brought meritless proceedings against the applicants on several previous occasions summarized by Kiefel J in the following terms:
It can be concluded that the Darts persisted in their claims against the applicants from the institution of the first proceeding in this Court in July 2000. When those proceedings were struck out as an abuse of process they brought an appeal which was without substance. When proceedings could no longer be pursued, because special leave had been refused, the applicants simply brought proceedings again on the same claims, adding only some further groundless claims. They did so in the face of a finding by the Full Court that the previous proceedings were vexatious and an abuse of the Court. There could hardly be a clearer example of persistence. The strength of their determination was highlighted by their applying for leave to appeal twice. To this may be added their belated attempt to stay the winding up of the Company and obtain orders which would provide them with another avenue by which to pursue their claims against the applicants. (at [40])
In the circumstances her Honour found the Darts to have brought proceedings against the applicants “as a matter of course” and, having considered those and other aspects of the case, her Honour made an order preventing the Darts from instituting further proceedings against the applicants in the Federal Court without the court’s leave.
The Skyring and Dart proceedings and these proceedings are dissimilar. It is apparent that the applicant has commenced at least six proceedings in this Court, including these proceedings, and copies of affidavits and points of claim in four proceedings filed prior to or contemporaneously with these proceedings are exhibits in these proceedings. However, unlike the situation seen in the Skyring and Dart cases, two of those proceedings remain pending before the Court and a final decision on the merits of the applicant’s claim has only recently been made in but one of the others: SYG 2015/2006.
The fact that these proceedings will be dismissed pursuant to r.13.10 is based on a conclusion that, on the evidence adduced by the applicant in these proceedings only, she has no reasonable prospects of success and, to the extent that she ventilates in these proceedings the same assertions as she ventilates against the second to ninth respondents in other proceedings, these proceedings are vexatious and an abuse of the process of the Court. However, a conclusion that a party ought not be required to confront the same claim by the same person in a multiplicity of proceedings is not the same as a finding that the underlying allegations themselves are vexatious. At this point the applicant’s claims against the various respondents to these proceedings remain essentially untested.
Consequently, the application for an order under r.13.11 will be refused.
Suppression of name
The second prayer for interim relief contained in the applicant’s application seeks an order that the publication of her name be suppressed under s.61 of the Federal Magistrates Act 1999. That section empowers the Court to make such an order if it appears to be necessary in order to prevent prejudice to, amongst other things, the administration of justice. The applicant has led no evidence to support this application or to show why it would be appropriate in the circumstances to make such an order although she has made submissions on the point.
In X & Ors v Australian Prudential Regulation Authority [2007] HCA 4, Kirby J said at [86]:
The suppression of names ought to be confined to cases in which disclosure “would prejudice the court’s proper exercise of the function it was appointed to discharge, to do justice between the parties”, or where disclosure “would destroy the subject‑matter of the proceedings and render them nugatory”. A case in which the use of names would seriously impede or discourage access to the courts might be another instance in which anonymity would be justified according to the statutory formula.
These proceedings satisfy none of the criteria identified by his Honour.
The applicant’s submissions, relying principally on the stigma she says she suffers or will suffer, provided no adequate basis to depart from the usual practice of publishing the names of all the parties, including the applicant. As Merkel J said in Herald & Weekly Times Ltd v Williams (2003) 130 FCR 435 at 444 [35], Finn and Stone JJ agreeing:
The policy reasons for adhering to an open system of justice were explained in Scott v Scott where Lord Shaw observed (at 484-485):
“... may not the fear of giving evidence in public, on questions of status like the present, deter witnesses of delicate feeling from giving testimony, and rather induce the abandonment of their just right by sensitive suitors? And may not that be a sound reason for administering justice in such cases with closed doors? For otherwise justice, it is argued, would thus be in some cases defeated. My Lords, this ground is very dangerous ground. One’s experience shews that the reluctance to intrude one’s private affairs upon public notice induces many citizens to forgo their just claims. It is no doubt true that many of such cases might have been brought before tribunals if only the tribunals were secret. But the concession to these feelings would, in my opinion, tend to bring about those very dangers to liberty in general, and to society at large, against which publicity tends to keep us secure.”
Lord Atkinson observed (at 463):
“The hearing of a case in public may be, and often is, no doubt, painful, humiliating, or deterrent both to parties and witnesses ... but all this is tolerated and endured, because it is felt that in public trial is to be found, on the whole, the best security for the pure, impartial, and efficient administration of justice, the best means for winning for it public confidence and respect.”
Notwithstanding the applicant’s wish for confidentiality, it is apparent that the possible absence of it has not inhibited her from commencing many proceedings in this Court. In all the circumstances, it does not appear to me to be that the order sought by the applicant is necessary to be made to prevent prejudice to the administration of justice.
Conclusion
The applicant has no reasonable prospects of success in these proceedings which are, in any event, vexatious vis à vis the second to ninth respondents as well as an abuse of the process of the Court in respect of the allegations against those respondents.
Pursuant to r.13.10 of the Rules the application will be dismissed.
The Court not being satisfied that the criteria for an order under r.13.11 are met, the respondents’ application for an order under that rule will be refused.
The applicant’s application for an order that the publication of her name be forbidden will be refused.
I certify that the preceding one hundred (100) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 21 July 2008
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