Mathews, R.G.H. v Sheedy, J.

[1991] FCA 516

I

C A T C H W O R D S

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ADlhNISTRATIVE LAW - 0 11 r 16 Federal Court Rules - whether

any reasonable cause of action disclosed - whether conduct of

respondents amenable to review - whether pleadings	i
embarrassing or vexatious.
Federal Court Rules 0 11 r 16
RUSSELL GORDON HAIG MATHEWS v. J	-
QLD. NO. G43 of 1991
SPENDER J. BRISBANE
8 July 1991

IN THE FEDERAL COURT OF AUSTRALIA	NO. QG 43 of 1991
QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION

BETWEEN: RUSSELL GORDON HAIG MATHEWS

Applicant

AND: JOAN SHEEDY

First Respondent

AND: HUMAN RIGHTS AND EOUAL OPPORTUNITY COMMISSION

Second Respondent

AND: OUENTIN BRYCE

Third Respondent

AND: CHRIS SIDOTI

Fourth Respondent

MINUTES OF ORDER

JUDGE MAKING ORDER:	Spender J.
DATE OF ORDER:	8 July 1991
WHERE MADE:	Brisbane
THE COURT ORDERS THAT:

(1) Paragraphs 4, 5, 7, 8, 10 and 12 of the amended

application be struck out;

(2) Paragraphs 4, 7, 9 and 10-20 inclusive of the
amended statement of claim be struck out;

(3) The respondent to the motion pay the applicants'

(second, third and fourth respondents in the

principal proceedings) costs of and incidental to

the motion, to be taxed if not agreed.

m:  Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA	1	No. QG 43 of 1991	I
DUEENSLAND DISTRICT REGISTRY	1
GENERAL DIVISION	1

BETWEEN: RUSSELL GORDON HAIG MATHEWS

Applicant

AND: JOAN SHEEDY

First Respondent

AND:  HUMAN RIGHTS AND EOUAZ, OPPORTUNITY COMMISSION

Second Respondent

AND: QUENTIN BRYCE

Third Respondent

AND: CHRIS SIDOTI

Fourth Respondent

SPENDER J.

BRISBANE

B JULY 1991

EX TEMPORE REASONS FOR JUDGMENT

his is a notice of motion by which the second,

third and fourth respondents seek to strike out various

paragraphs of the amended application and the amended
statement of claim.	The notice of motion is based on 0. 11 r.

16 of the Federal Court Rules which provides:

"Where a pleading -

discloses no reasonable cause of action or

(a) defence or other case appropriate to the

nature of the pleading;

(b) has a tendency to cause prejudice,
embarrassment or delay in the proceedings;
or

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is otherwise an abuse of the process of

(c) 1 the Court,

the Court may at any stage of the proceeding
order that the whole or any part of the

pleading be struck out".

The purpose of that rule is to secure compliance

with the rules of pleading, but such a power ought be
exercised sparingly.

By way of background to these proceedings, and also

to the associated proceedings, Q79 of 1991, the Human Rights
and Equal Opportunity Commission made a determination on 7
March 1991 against Mr. Mathews. Mr K. O'Connor, a member of
the Human Rights and Equal Opportunity Commission, determined
that the complaint of a previous employee of the company Ah
Rem Pty Ltd was substantiated and further that:

"Pursuant to sectlon 81 (l) (b) (lv) of the Act 2

declare that the respondents, M i - Mathews and

AAH-REMM Pty. Ltd. should pay to the

complainant damages by way of compensation in
the sum of $6,000 in relation to the stress,

humiliation, embarrassment and financial loss

caused to the complainant."

He also made an order pursuant to S. 67 of the Sex

Discrimination Act 1984 prohibiting the publication of
information which might enable the complainant to be

identified.

By an application filed in this court on 25 March

1991 and by an amended application filed on 3 June 1991, which

was supported by an amended statement of claim and a further
affidavit of Mr Mathews filed on the same date, Mr Mathews

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seeks to review a number of matters, some of which are said to
be decisions and some of which are said to be reviewable
conduct.

He seeks, in paragraph 1 of the amended application, to review the decision made by Mr. O'Connor that the complaint of sexual harassment was substantiated. No application is

made in respect of that amended application although I did
raise with counsel for the Human Rights and Equal Opportunity
Commission the question of whether a determination made by the
Ifman Rights and Equal Opportunity Commission pursuant to S.

81 of the s e x Discrimination Act is a decision which is

amenable to review. It is not necessary to consider that

aspect further, but the inquiry was prompted by the
observations of the High Court in Australian Broadcasting
Tribunal v. Bond 170 C.L.R. 321 and by S. 81(2) of the Act,

which provides:

"A determination of the Commission under

subsectlon (1) is not binding or conclusive

between any of the parties to the

determination."

There is no doubt that the decision is final in the

sense that it is not a decision reached along the way, nor is

it in any sense at all a matter of procedure. I proceed on

the basis that a determination of the Commission is a decision
of an administrative kind made under an enactment, and
affecting the parties to it by, inter alia, putting in train
the consequences for which the Act makes provision.

,

Paragraphs 4, 5, and 7 of the amended application

seek orders for review of conduct. The conduct which is
sought to be reviewed is the making of statements by officers
of the Commission which are said to be false. In my opinion,
none of the conduct which is sought to be challenged in
paragraphs 4, 5, and 7, or 10 and 12 is conduct which is
amenable to review under the Administrative Decisions
(Judicial Review) Act 1977.

In some respects, Mr Mathews seeks to review aspects

of the conduct of the complainant in those proceedings which
is not within the purview of the Act, but insofar as his
Material seeks to challenge conduct constituted by the making
of various false statements and various statements of a
procedural kind, the challenge is directed at conduct which
the High Court considered in Bond (supra) and which conduct
the Court indicated would not be able to be reviewed under the
Act.

In the joint judgment of Toohey and Gaudron JJ. in

Bond at 378 their Honours said:

"However, it may be observed that, once a
decision has been made, no useful purpose i s
served by dissecting the steps which have led
to that decision and subjecting them to review
as conduct unless that review i s directed to

the identification o f some reviewable error

attending the decision i t s e l f . I f the decision

i s t o stand because i t i s not attended by a
reviewable error, review o f the conclusions and
findings leading t o that decision to see i f
they were attended by some error which, ex
hypothesi, was not carried into the decision so

a s t o render i t reviewable i s a	f u t i l e
exercise.	That such i s not permitted by the
A . D . ( J . R . )	Act i s clear from the grounds upon

which conduct may be reviewed, those grounds being limited t o a defect i n procedure or i n the conduct engaged i n for the purpose o f

making a decision ( S 6 ( l ) ( a ) , (b) , ( f ) and ( g ) )

and t o error in fec t ing or l i k e l y t o i n f e c t " the

proposed decision" ( S 6 ( l ) ( c ) , ( d ) , ( e ) , ( f ) ,

( h ) and (j)). Clearly i t i s not the intention o f the A.D. (J.R.) Act that conduct i s subsumed

provision for a review o f each. " i n decision. The legislat ion makes independent

And i n the judgment o f Mason CJ at 3 4 1 , his Honour said:

"The dist inct ion between reviewable decisions
and conduct engaged i n for the purpose o f
making such a decision i s somewhat elusive.
However, once i t i s accepted that 'decision'
connotes a determination for which provision i s

made by or under a s tatute, one that generally

i s substantive, final and operative, the place

o f 'conduct' i n the statutory scheme o f things

becomes reasonably clear. In i t s se t t ing i n S .

6 the word 'conduct' points t o action taken,

rather than a decision made, for the purpose o f

making a rev1 ewable decision. In other words,

the concept o f conduct looks t o the way i n
which the proceedings have been conducted, the
conduct o f the proceedings, rather than
decisions made along the way with a view t o the

making o f a final determination. Thus, conduct

i s essent ia l ly procedural and not substantive

i n character. Accordingly, S . 3(5) re fers t o

two examples o f conduct which are clearly o f

that class, namely,	' t he taking o f evidence or
the holding o f an inquiry or investigation'.

I t would be strange indeed i f 'conductr were t o
extend generally t o unreviewable decisions
which are i n themselves no more than steps i n

the deliberative or reasoning process".

In my opinion, what i s sought t o be impugned as

conduct here f a l l s within that category o f non-reviewable

conduct. Insofar as paragraph 5 and 8 o f the amended

application direct cri t icism a t conduct o f the respondents i n relation t o the parents o f the applicant who are directors o f

the company Ah Rem Pty ~ t d , it is difficult to'see how M r

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Mdthews is a person aggrieved, but, in any event the conduct sought to be impugned in those paragraphs is of the same kind aa I have earlier said is unreviewable.

While what is said that paragraph 2 of the amended

statement of claim is unparticularised, particulars of that

paragraph appear in the affidavit of Mr Mathews filed on 3

June. In the circumstances, I do not propose to strike out

that paragraph.

Paragraph 4 of the amended statement of claim should be struck out, as being embarrassing in that it is directed to the conduct of the complainant in the proceedings before the

Commission. Paragraph 7 of the amended statement of claim falls with the paragraphs of the application which is struck

out. I decline to strike out paragraph 8, because it is in

the same category as paragraph 2 and the particulars relied on
sufficiently appear from the affidavit of Mr Mathews filed 3

June 1991.

I strike out paragraphs 10 to 20 inclusive of the

amended statement of claim on the basis that they are
embarrassing for want of particularity and, in the context of
the material before me, vexatious. In those circumstances, I
order that paragraphs 4, 5, 7, 8, 10 and 12 of the amended
application be struck out, and I have already ordered in

relation to a different notice of motion that paragraphs 3 and

1i be struck out.

As to the amended statement of clah, I order that

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paragraphs 4, 7, and 9, and 10 to 20 inclusive be struck out.

Essentially, it comes down to this: that the

decision by Mr O'Connor in respect of the complaint and the
decision to make a confidentiality order in respect of the
identity of the complainant are on foot, and there are
allegations as to the conduct by the Commissioner,
particularised in the affidavit of 3 June, which are called
into question as well as the question of whether there has
been an improper exercise of the power or a fraud on the power
cbncerning, inter alia, the treatment of the original letter

of complaint.

All that amounts to, it must be said, are merely

assertions by Mr Mathews which have survived a process of

threshold attack. It is not to be implied from what is left

or what is not challenged that those matters of criticism have
any substance nor, on the other hand, that they are without

substance.

At this stage, it is simply a question of what

matters might proceed for inquiry, and as I have indicated,
they are in quite a small compass and go ultimately to the
decision of the Commissioner that the complaint of sexual
harassment was made out and that in the circumstances it was
appropriate to make a confidentiality order as to the identity
of the complainant.

I order M r Mathews t o pay the costs of the motion

f i l e d 6 June on behalf of the second, third, and fourth

respondents, t o be taxed i f not agreed.

I certify that t h i s and the

seven (7) preceding pages are a

t r u e copy o f the reasons for

judgment herein o f h i s

M r . Justice Spender.

Counsel for the applicants (second,

third and fourth respondents in

the principal proceedings):	Ms. P. Wolfe
Solicitors for the applicants (second,
third and fourth respondents in the
principal proceedings) :	Human Rights and Equal Opportunity Commission
For the respondent (applicant in the
principal proceedings) :	The respondent in person
Date of Hearing:	8 July 1991