Mathews, R.G.H. v Human Rights & Equal Opportunity Commission

[1993] FCA 840

JUDGMENT No. .II.I..II.I..,...I 890,93

IN THE FEDERAL COURT OF AUSTRALIA )

1     NO. QG 69-70 of 1993

BRISBANE DISTRICT REGISTRY	j
GENERAL DIVISION

ON APPEAL FROM A SINGLE JUDGE

OF TRE

FEDERAL COURT OF AUSTRALIA

BETWEEN:	RUSSELL GORDON HAIG MATAEWS
Appellant

19 NOV 1993 AND : HUMAN RIGHTS AND EQUAL

AUSTRALIA	OPPORTUNITY COMMISSION
PRINCIPAL REGISTRY
Respondent

CORAM:	WILCOX, DRUMMOND, COOPER JJ
PLACE :	BRISBANE
DATE :	16 NOVEMBER 1993

EXTEMPORE REASONS FOR JUDGMENT

WILCOX J: There are two matters listed for hearing today, both of them being appeals by Russell Gordon Haig Mathews against decisions of Spender J given in this Court on 21 April

Opportunity Commission, the respondent today.

1993. The two matters are related. They both arise out of a

complaint made against Mr Mathews, and a company with which he apparently had some association, of sexual harassment within the meaning of the Sex Discrimination Act 1984. The complaint was heard by a Commissioner of the Human Rights and Equal

The complaint was found proved. Mr Mathews

challenged the Commission's decision, both under the

Administrative Decisions Judicial Review Act 1977 and,

directly, by seeking an application for review under the Sex

Discrimination Act. Both matters were heard by Spender J and	.
resulted in decisions adverse to Mr Mathews.	Mr Mathews filed

notices of appeal. In the ordinary course of events, we would have heard both appeals today. Unfortunately, this is not possible because appeal papers have not been filed. The question that has been discussed today is what course ought to be taken.

I should say at the outset that the Court is conscious of the fact that the rule requirements for the filing of appeal papers can impose a burden on appellants, perhaps particularly appellants who appear in person; and even more particularly if those appellants lack means. The Court is always anxious to ensure that cases are not denied a hearing in the Court, whether at first instance or on appeal,

within the resources available to the Court. I would	because of the indigence of litigants. In appropriate cases, steps are taken to assist appellants, as may be necessary and
therefore be reluctant to take any step involving the disposal of these cases without a full hearing, if I was persuaded that the only reason why the matters cannot proceed to hearing was the lack of means of the appellant.

The real question is whether that is the situation. In this regard, a document has been prepared, at the request of the Court, by the District Registrar, setting out the history of the matter since the notices of appeal were filed on 6 May 1993.

This document is dated 15 November 1993. It was provided to Mr Mathews this morning. He was given ample time to read the document and there was then some discussion during which we asked M r Mathews whether he agreed that the document accurately set out the history of the matter, whether there were any corrections that he wished to make or whether there were any other matters that he wished to add by way of amplif ication or explanation. He drew attention to one matter, which I will come to in a moment. But apart from that, as I understand his responses, M r Mathews accepts that the report of the Registrar is both accurate and comprehensive.

The report reveals that, after the notices of appeal were filed, an appointment to settle the appeal indices was made for 3 June 1993. Mr Mathews appeared on that occasion as did MS Bronwyn Scheelbeck, a solicitor acting on behalf of the Human Rights and Equal Opportunity Commission. No draft index of appeal papers had been filed. M r Mathews explained that he had not looked at the rules. Deputy Registrar McQuaid drew his attention to order 52 of the Court rules, and specifically rule 28 which deals with preparation of appeal papers. [It is

pertinent to mention at this stage that Mr Mathews was described by Spender J who had the benefit of hearing him give evidence over a lengthy period, as an intelligent person. He has informed us by way of an affidavit filed this morning that he is presently studying law part-time at the University of Queensland. So it seems to me that the reference given to him by the Deputy Registrar would have been meaningful to him.] There was apparently some discussion on this occasion about the generality of the grounds of appeal, it being suggested by both MS Scheelbeck and the Deputy Registrar that Mr Mathews ought to further particularise his grounds of appeal. He ultimately did this, so I need not refer to that matter any more. There was discussion about the preparation of a draft index and about the preparation of the appeal books themselves. Apparently, Mr Mathews indicated on this occasion that he might need assistance in preparing appeal books and might make an application on that behalf. There was discussion about a date for settling the appeal index. 5 July 1993 was suggested, but Mr Mathews asked for a later date because of

his university commitments and this was agreed.

On 9 June a notice was sent to Mr Mathews advising that a call-over of appeal matters would be conducted on Monday 28 June. This call-over was conducted by Drummond J who made various orders in each matter, one of which dealt with an amended notice of appeal. A further order was that the appellant file and serve five copies of the appeal record, containing the material upon which the appeal is to be

conducted, by 1 October 1993. This order was made in each of
the two matters.

An appointment to settle the appeal indices was made for 5 July 1993, but Mr Mathews did not turn up on that occasion.

Apparently, about this time, Mr Mathews made representations for legal aid in connection with the appeals. There was a question about provision of copies of the transcripts of the hearing before Spender J. I need not go into the detail of this matter. In the event, arrangements were made for Auscript to provide copies of the transcript to

Mr Mathews free of charge. This apparently occurred during

the month of August.

On 30 August 1993 Deputy Registrar McQuaid wrote to
Mr Mathews fixing 16 September 1993 at 2.15 pm as the time and

date for finalising the indices to the appeal papers. M r

Mathews came to the Court on that occasion, but in fact the	appeal papers indices were not settled. Apparently, there was
some incident involving Miss Scahill of the Human Rights and Equal Opportunity Commission. According to MS McQuaid, she asked M r Mathews during this time whether he was here to settle his appeal index and he replied in the negative. Mr Mathews has told us this morning that this statement is incorrect; this is the one correction that he offered to the Registrar's report. He says that he in fact replied that he was here to arrest: Miss Scahill, which was apparently a reference to the incident that occurred. In any event, the indices were not settled on that occasion.
On Wednesday, 6 October 1993, the matter came before Spender J who made various directions; one of them involved amendments to the notice of appeal, and that was ultimately complied with. His Honour also directed that a draft index be prepared and settled by the Registrar on or before 22 October 1993 and that preparation of appeal books be completed by 9 November 1993. His Honour gave leave to either party to apply if there is any difficulty in relation to these directions. I emphasise that leave, because Mr Mathews has never taken advantage of it, notwithstanding the fact that he claims that there is, indeed, a difficulty.
No action was taken by M r Mathews to prepare a draft index as required by Spender J, and nothing was done before the nominated deadline, 22 October. During the following week
appointed, Friday, 29 October, at 11 am as the date and time the District Registrar, Mr Ramsey, took the initiative. He
for settling the index. On that occasion Mr Mathews appeared, together with Miss Endicott, a solicitor acting on behalf of the Human Rights and Equal Opportunity Commission. Mr Mathews produced a document headed, "Appeal Index Dated 29 October 1993" which read:

"I require the appeal booklet to consist of all exhibits and materials subpoenaed or before the Court in any other way whatsoever before Spender J in the Federal Court. I also require the full transcript of the hearing to be included in the

booklet. "

It seems inconceivable that a person having before him the terms of rule 28 of order 52 could regard the provision of that document as a satisfaction of the requirements of the rule. The rule goes to some trouble to point out the documents that are required, and to make clear to readers that a degree of discrimination is necessary in determining what documents shall be included in appeal papers.

In the result, Mr Ramsey was left in the situation that, either he himself undertook the task not merely of settling a draft index but of producing a draft index, or there would be no index whatever. Mr Ramsey generously took the burden of preparing a draft index. He says in his report that he settled the appeal indices at that time by considering each and every document and exhibit and that he sought the views of Miss Endicott and Mr Mathews in relation to each item. His report goes on:

"I suggested to Mr Mathews that he take notes of the documents included in the indices as each was discussed. He informed me that he could not write and said he would produce a medical certificate. I proceeded to settle the index. I informed Mr Mathews that officers of the registry would be available to provide guidance on matters of practice and procedure in relation to preparation of the appeal books. Mr Mathews informed me that he would not be preparing the appeal books as he did not have the means or ability to do so."

I comment that the statement attributed to Mr Mathews in the last sentence of this quotation has not been denied. It is a statement made by a person who has had the list of relevant documents prepared for him by the Registrar and who is a person apparently able to cope with a tertiary educational course.

Mr Mathews did not take any action to prepare the appeal papers. Neither did he make any application to the Court for an alternative course to be taken. On 3 November 1993 Mr Ramsey wrote to Mr Mathews confirming the contents of the appeal indices and providing other information to assist him in compiling the appeal books. No action was taken. On 11 November 1993, with the hearing today becoming imminent, Mr Ramsey referred the matter to me as the prospective presiding judge. Pursuant to a direction that I gave that day, Mr Ramsey sent a further letter to Mr Mathews. Interestingly, he was able to send it by facsimile transmission, Mr Mathews

apparently having access to a facsimile machine used by him in	the business which he previously conducted, a tax advising
business. In the course of that letter, Mr Ramsey reminded Mr Mathews of the directions that had been given on 6 October by Spender J, and the facts that, firstly, the direction as to a draft index had not been complied with but nonetheless the draft had now been settled, and, more importantly, that appeal books had not been prepared. Mr Ramsey concluded his letter in this way:

"I am directed to inform you that the appeal books must be prepared by you in sufficient time prior to the date fixed for hearing of the appeals, Tuesday,

16 November, to enable the appeals to be heard. In

the event that the books are not so prepared then, in the absence of satisfactory explanation for that particular omission on your part, the Court will give consideration to striking out the appeals. If you do intend to offer such an explanation, you must file an affidavit containing the matters you wish to put before the Court."

M r Mathews did not, in fact, file any affidavit.

But when the matters were called today he handed to the Court an affidavit sworn today in which he says certain things. One statement that is made in the affidavit is that he is presently bankrupt. He also, at a later stage of the affidavit, refers to himself as suffering the special disability of poverty. The affidavit does not give any further details about Mr Mathews' financial position. He has told us from the bar table that he is currently receiving unemployment benefits and has some part-time employment which brings in $60 to $90 per fortnight. He has the benefit of a health care card, apparently because he is eligible for

unemployment benefits. He has no dependents. In response to

a question from the Bench, Mr Mathews gave the answer about

the facsimile machine to which I have already referred. He denies having access to a photocopier, except by paying at a rate per page, apparently 8 cents per page in the library at the university, perhaps more to a commercial operation. The affidavit really does not assist the Court as to the financial position of M r Mathews. It does not give any background as to what happened about the business which he was previously

conducting, and out of which the complaint made to the Human
Rights and Equal Opportunity Commission arose.

However, as it seems to me, the more important thing is to determine whether or not Mr Mathews genuinely intends to prosecute these appeals. He has asserted such an intention on several occasions; but, for my part, I cannot accept those assertions. I have set out the history of the matter at some length, because it seems to me that it is eloquent in indicating Mr Mathews' refusal to co-operate in the steps which he must understand are essential if an appeal is to be heard and disposed of in a satisfactory way. It is sufficient simply to go through the problems of settling the appeal index, and then Mx Mathews' total refusal to do anything about the appeal papers. If, as I say, he had a genuine problem about financing the cost, but had been otherwise co-operative, then I think that the Court would be anxious to assist him in some way, but I am left with a strong feeling that M r Mathews' purpose is to frustrate and obstruct the processes of the

their merits of the appeals which he has filed.	Court rather than to assist the Court in the determination on
As M r RamSey indicated in the letter he sent to Mr Mathews last week, the Court is able to dismiss an appeal for want of prosecution where it appears that that is the appropriate course. I refer particularly to rule 38 of order
52. That rule provides that:

"Where an appellant has not done any act required to be done by or under the rules, or otherwise has not prosecuted his appeal with due diligence, the court may order that the appeal be dismissed for want of prosecution."

In this case both of the specified preconditions are satisfied.

The submission has been put to us on behalf of the Commission that "enough is enough", and that the Court ought to take the step of summarily dismissing the appeals.

I think that is a step which ought to be taken only in the clearest of cases. But, in my view, this is a very clear case and an appropriate one in which to exercise that power. In my view, therefore, we should refuse the application that Mr Mathews made to us which, in effect, puts on the Court the burden of preparing appeal papers; we should take the step indicated in rule 38 of ordering that the appeal be dismissed for want of prosecution.

DRDMMOND J: I agree with the reasons expressed by the learned

presiding judge. I, too, have formed the same impression as to the quality of Mr Mathews' conduct, particularly in relation to the history of the preparation of the appeal index, that he has formed. I agree with the order he proposes.

COOPER J: I agree with the orders proposed by the learned presiding judge for the reasons he has given.

WILCOX J:  M r Clyde, I should ask you is there any matter of

costs that you wish to raise?

[Discussion ensued.]

WILCOX J: The order that will be made in each of the two

matters is that the appeal be dismissed for want of

prosecution.

I certify that this and the preceding eleven (11) pages
are a true copy of the Reasons for Judgment herein

of their Honours Justices Wilcox, Drummond and Cooper.

Associate:  ~ . ~ ~ - = ~ ~ ~

Dated:  16 November 1993

APPEARANCES

Appellant in person:	R G Mathews
Solicitor for the Respondent:	I Clyde, Human Rights and Equal Opportunity Commission
Date of hearing:	16 November 1993