Margan v Australian Human Rights Commission

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FEDERAL COURT OF AUSTRALIA

Margan v Australian Human Rights Commission [2013] FCA 612

Citation: Margan v Australian Human Rights Commission [2013] FCA 612
Parties:

SIMON MARGAN v COMMONWEALTH OF AUSTRALIA, STATE OF QUEENSLAND and STATE OF NSW

SIMON MARGAN v AUSTRALIAN HUMAN RIGHTS COMMISSION and COMMONWEALTH OF AUSTRALIA
File numbers: NSD 399 of 2013; NSD 400 of 2013
Judge: GRIFFITHS J
Date of judgment: 18 June 2013
Catchwords:

PRACTICE AND PROCEDURE – application for leave to appeal – principles concerning leave to appeal from dismissal pursuant to r 30.02(b) of the Federal Court Rules 2011 – principles concerning leave to appeal from summary dismissal – whether any arguable error in exercise of discretion – whether primary judgment attended with sufficient doubt to warrant reconsideration by the Full Court

HUMAN RIGHTS – discrimination based on sex or marital status

COSTS – whether award of costs appropriate  
Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 10, 16
Australian Human Rights Commission Act 1986 (Cth) ss 3, 46PH, 46PO
Federal Court of Australia Act 1976 (Cth) ss 30, 31A
Federal Court Rules 2011 rr 16, 26, 30
Judiciary Act 1903 (Cth) s 78B
Marriage Act 1961 (Cth) ss 3, 5
Sex Discrimination Act 1994 (Cth) ss 4, 5, 6
Cases cited: Atieh v Civil Aviation Safety Authority (2013) FCA 20
Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
Department of Defence v Human Rights and Equal Opportunity Commission (1997) 78 FCR 208
Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564 at [43]
Oshlack v Richmond River Council (1998) 193 CLR 72
Spencer v Commonwealth of Australia (2010) 241 CLR 118
Date of hearing: 18 June 2013
Place: Sydney
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 52
Counsel for the Applicant The applicant appeared in person
Counsel for the First Respondent The first respondent did not appear
Counsel for the Second Respondent Mr A Markus
Solicitor for the Second Respondent Australian Government Solicitor
Counsel for the First Respondent Mr A Markus
Solicitor for the First Respondent Australian Government Solicitor
Counsel for the Second Respondent Mr M Spry
Solicitor for the Second Respondent Crown Solicitor, Crown Law, State of Queensland
Counsel for the Third Respondent Ms M Gaven
Solicitor for the Third Respondent NSW Crown Solicitor, Crown Solicitor’s Office

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 399 of 2013

BETWEEN:

SIMON MARGAN
Applicant
AND:

COMMONWEALTH OF AUSTRALIA
First Respondent

STATE OF QUEENSLAND
Second Respondent

STATE OF NSW
Third Respondent

JUDGE:

GRIFFITHS J

DATE OF ORDER:

18 JUNE 2013

WHERE MADE:

SYDNEY

THE COURT ORDERS:

1.The amended interlocutory application is dismissed

2. The applicant pay the respondents’ costs. 

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 400 of 2013
BETWEEN:

SIMON MARGAN
Applicant
AND:

AUSTRALIAN HUMAN RIGHTS COMMISSION
First Respondent

COMMONWEALTH OF AUSTRALIA
Second Respondent

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Details
Case
[2013] FCA 612
Decision Date

CaseChat Overview and Summary

The case of Margan v Australian Human Rights Commission involves the applicant, who filed an originating application against the Australian Human Rights Commission, the Commonwealth, and various state Attorneys-General. The applicant alleged unlawful discrimination by a marriage registration scheme that only allows the registration of marriages between applicants of different sexes, which he claimed contravened sex discrimination legislation. The applicant sought review of a decision by a delegate of the President of the AHRC to terminate his complaint, as well as alleging unlawful discrimination under the Sex Discrimination Act 1984 on the grounds of sex and marital status. The matter was initially heard by Katzmann J, who directed the applicant to re-file his application under the Administrative Decisions (Judicial Review) Act 1977. Following this direction, the applicant filed two separate proceedings: one for judicial review of the AHRC’s decision and another alleging unlawful discrimination.

The primary legal issues before the court were whether the applicant had established an arguable error of law in the primary judge's exercise of discretion in ordering costs and whether the applicant had any reasonable basis for arguing that he commenced the judicial review proceeding due to a direction from the Court. The court examined whether the applicant's claims, including that his case was a test case brought in the public interest, were sufficient to establish any arguable error of law. The court found that the applicant had failed to demonstrate any such error, and his claims lacked a reasonable basis. The court also noted that the applicant did not raise the public interest aspect before the primary judge, even though he had the opportunity to do so.

The court ruled against the applicant, finding that there was no arguable error of law in the primary judge's costs order. The applicant’s argument that he commenced the judicial review proceeding due to a direction from the Court was also dismissed as there was no basis for this in the hearing transcript. The court further held that the applicant did not raise the public interest nature of the case before the primary judge, and thus, this could not be a basis for appealing the costs order. Consequently, the application for leave to appeal the costs order was dismissed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Finally, it might also be noted that the third respondent in NSD 399 of 2013 filed an outline of supplementary written submissions dated 7 June 2013. The other respondents were content to rely on their original written outlines. Procedural background By originating application filed on 21 August 2012 (the original application) the applicant brought proceedings pursuant to s 46PO(1) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act). The applicant alleged unlawful discrimination by reason of a Commonwealth/State marriage registration scheme which only allows the marriage registration of applicants of different sex, which the applicant alleged was in contravention of sex discrimination legislation. In particular, the applicant claimed unlawful discrimination under the Sex Discrimination Act 1984 (Cth) (SD Act) on the grounds of both “sex” and “marital status” (ss 5 and 6 respectively) in the areas of “provision of … services…” and “administration of Commonwealth laws and programs” (ss 22 and 26 of the SD Act). The originating application filed on 21 August 2012 followed on from a complaint which the applicant had lodged with the Australian Human Rights Commission (AHRC) on 17 November 2010 (the Complaint). On 2 July 2012, a delegate of the President of the AHRC terminated the complaint pursuant to s 46PH(1)(c) of the AHRC Act on the basis that the complaint was misconceived and/or lacking in substance. On 1 August 2012, the applicant commenced proceedings in the Court against the AHRC, the Attorney-General of New South Wales, the Attorney-General of Queensland and the Commonwealth. That application was in the form of a proceeding commenced under s 46PO(1) of the AHRC Act. The application came before Katzmann J on 20 August 2012. It emerged during the course of that hearing that the applicant’s intention was to seek a review of the AHRC’s decision dated 2 July 2012. The applicant said that he believed that he should be appealing the AHRC’s decision to reject the complaint. Her Honour responded by saying that, if that was the case, the application needed to be made under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) and an extension of time would have to be sought. Her Honour pointed out that the applicant’s existing application would not enable him to obtain a review of the AHRC’s decision. In response, the applicant indicated that he would re-file the matter. After some discussion with the respondents as to whether they would consent to the applicant amending his existing application, her Honour determined to strike out the existing application, leaving it to the applicant to file a fresh application if he so wished. On the following day (i.e. 21 August 2012) the applicant commenced two separate proceedings in the Court. The first (NSD 1203/2012) involved an application for review of the AHRC’s decision. Although there was no reference to the ADJR Act, the application seemed to be one for judicial review (the judicial review proceeding). The President of the AHRC and the Commonwealth were named as respondents. On the same day, the applicant commenced separate proceedings (NSD 1205/2012) pursuant to s 46PO(1) of the AHRC Act in which he alleged unlawful discrimination on the grounds set out in his original complaint to the AHRC (the human rights proceeding). The respondents in the human rights proceeding were the Commonwealth Attorney-General, the Queensland Attorney-General and the New South Wales Attorney-General.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

A further relevant principle is that, where the practical effect of an interlocutory order is final, leave will usually be granted if there is any doubt about the decision at first instance (see Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564 at [43]). It is also appropriate to note that in a case where an applicant for leave is a self-represented litigant, the Court must be alert to ensure that there may be an arguable error of law which, with appropriate amendment or permissible assistance, could be put into proper form (see Atieh v Civil Aviation Safety Authority [2013] FCA 20 at [18]) per McKerracher J.) Consideration (a) Judicial review proceeding (NSD 400/2013) As noted above, the applicant seeks leave to appeal against the primary judge’s costs order. He argues that he should not have been ordered to pay the Commonwealth’s costs because he claims that he commenced the judicial review proceeding at the Court’s direction and the jurisdiction was uncertain. He also says that such an order was inappropriate because his was a test case brought in the public interest. The Court’s power to order costs, including in a judicial review proceeding, is ultimately sourced in s 43 of the FCA Act (see also Part 40 of the 2011 FCRs). The exercise of that power involves judicial discretion. For the applicant to have any prospects of successfully appealing her Honour’s exercise of that discretion against him, he must point to an error which is broadly embraced by the House v The King principles. In my view, the applicant has failed to establish that there is any such arguable error. Moreover, I have great difficulty in seeing how the applicant has any reasonable basis for arguing that he commenced the judicial review proceeding because of a direction from the Court. The transcript of the hearing before Katzmann J on 20 August 2012 provides no basis for that submission. Her Honour struck out the original application and made it quite clear that it was a matter for the applicant himself to determine what course he would then take. Her Honour stated that she was not able to give him advice from the bench and she urged the applicant “to seek some legal advice before filing the next document”. As noted above, the applicant elected the next day to file both the judicial review proceeding and the human rights proceeding. Seemingly, the applicant took those steps of his own accord and against a background of it being made clear to him during the course of the hearing on 20 August 2012 that there was a fundamental inconsistency between reviewing the AHRC’s decision and bringing proceedings under s 46PO(1) of the AHRC Act. As to the applicant’s claim that his is a test case which is brought in the public interest, no material has been placed before me to suggest that the applicant raised this issue before the primary judge notwithstanding that he was on notice that the Commonwealth sought costs against him. It is clear that, even if the case was regarded as public interest litigation, that would not be determinative in its own right. The usual order as to costs is that they follow the event. The Court is entitled, however, to have regard to whether the conduct of the litigation discloses any special circumstance which might justify a departure from the ordinary rule as to costs, including where it involves a substantial degree of public interest (see Oshlack v Richmond River Council (1998) 193 CLR 72). As noted above, however, the applicant did not raise any such matter for consideration before the costs order was made, even though he had an opportunity to do so. Her Honour dealt with the matter as it was argued, as she was obliged to do.