Mathews v State of Queensland
[2014] FCCA 1657
•16 June 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MATHEWS v STATE OF QUEENSLAND & ANOR | [2014] FCCA 1657 |
| Catchwords: PRACTICE AND PROCEDURE – Application to appear by telephone – application adjourned. |
| Legislation: Australian Human Rights Commission Act1986 (Cth), s.46PO |
| Applicant: | RUSSELL GORDON HAIG MATHEWS |
| First Respondent: | STATE OF QUEENSLAND |
| Second Respondent: | CLARK’S LOGAN CITY BUS SERVICE (QLD) PTY LTD |
| File Number: | BRG 363 of 2014 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 16 June 2014 |
| Date of Last Submission: | 16 June 2014 |
| Delivered at: | Brisbane |
| Delivered on: | 16 June 2014 |
REPRESENTATION
| No appearance by the Applicant |
| Counsel for the First Respondent: | Mr Hamlyn-Harris |
| Solicitors for the First Respondent: | Crown Law |
| Counsel for the Second Respondent: | Ms Garner |
| Solicitors for the Second Respondent: | Cooper Grace Ward Lawyers |
ORDERS
The application be adjourned to 23 June 2014 at 9.30 a.m. for the hearing of all outstanding interlocutory applications in the Federal Circuit Court of Australia sitting at Brisbane.
On the adjourned hearing of these applications, 9:30am 23 June 2014, the applicant is to appear personally.
All parties costs in the cause.
| FEDERAL CIRCUIT COURT AT BRISBANE |
BRG 363 of 2014
| RUSSELL GORDON HAIG MATHEWS |
Applicant
And
| STATE OF QUEENSLAND |
First Respondent
| CLARK’S LOGAN CITY BUS SERVICE (QLD) PTY LTD |
Second Respondent
REASONS FOR JUDGMENT
Ex tempore
These proceedings were commenced by the applicant on 19 November, last year in the Federal Court of Australia. Between 19 November and 8 April, and save for three or four documents that appear on the court file, the applicant has managed to file some 28 documents, 12 at least of which are interlocutory applications asking for orders about various matters.
The primary application came before a judge in the Federal Court and orders were made on most, if not all, of the interlocutory applications dismissing them. The last order made was to transfer the proceedings to this Court.
This is the first court date for the application in this court. There are presently before me a number of applications. The first in time seems to be an application in a case by the applicant filed on 7 May wherein he asks for an order that Clark’s Logan City Bus Service (Qld) Pty Ltd be joined as a respondent in this proceeding. There is another application filed on 16 May, 2014 by the applicant wherein he asks for an order that he have leave to appear at mentions and hearings in this proceeding by way of telephone and without the need to provide a telephone number, “in a similar manner to that which worked well where the precedent was set in Federal Court proceedings QUD839 of 2013”. Those proceedings were the proceedings that were transferred here.
The other application before me this morning is an application by Clark’s Logan City Bus Service (Qld) Pty Ltd for orders that paragraphs 2 and 3 of the order made by Rangiah J on 24 April, 2014 be vacated, and that the applicant pay its costs of and incidental to the application to join Clark’s to the proceedings, including any costs incurred in the Federal Court.
There have been some submissions filed in support of Clark’s application by its legal representatives. Those submissions, as I apprehend them, go to the question of whether the third party ought to be joined as a party to these proceedings, rather than to the discharge of the orders made by Rangiah J.
Since the proceedings have been transferred to this court, the correspondence kept by the Court on the court file, which I immediately say is not in evidence before me – the correspondence reveals a long trail of communication between the applicant and my associate and my associate and the other parties who are here today. The applicant sought leave to appear by telephone at today’s hearing in an informal way and he was informed by my associate that to secure leave to appear by telephone, some matters needed attention, not the least of which was the consent of the other parties to the proceedings to his appearance by telephone.
The correspondence on the court file makes clear that that consent has not been forthcoming and despite all of the material that has been sent by the applicant to my associate, and there is a good deal of it, he has been consistently informed that he does not have leave to appear in these proceedings by telephone. Hence the filing of an application, it seems, on 16 May for those orders.
There is something ironic about wishing to appear by telephone on the hearing of an application to appear by telephone. My associate informed Mr Mathews that he would need to appear personally to argue the application.
His application to appear by telephone seems to be based upon an assertion that he suffers from an acquired brain injury and is unable to represent himself in the confines of a courtroom, but is able to do so adequately if he is either permitted to appear on the telephone or permitted to argue his applications by way of written submission.
So much appears from the most recent correspondence from him to my associate dated 13 June, 2014 and a letter directed to me of the same date. In the letter to my associate Mr Mathews makes clear that whilst he can adequately prepare documents in writing, it takes him some time to do so. He prepares them over a number of sessions. Were he required to stand up in court and present his own submissions orally he would like look a “dithering idiot”.
Whether Mr Mathews suffers from the relevant conditions and disabilities that he asserts is a question of evidence, and until the application that he has brought to appear by telephone and to conduct further proceedings in writing has been determined and I have seen the evidence in support of that application, I can not be satisfied that an order for leave to appear electronically is appropriate. Usually, electronic appearance is reserved for cases where the parties are so geographically distant from the court registry that it would be impractical, inconvenient or prohibitively expensive for an applicant or a respondent to appear at court. This does not seem to be one of those cases. There are also cases where the court gives a party leave to appear remotely in proceedings where those proceedings contain allegations of violence, for example, and people are afraid for their own personal safety. This again does not appear to be one of those cases.
It may be the case that if Mr Mathews can make out his assertion that the afflictions from which he suffers mean that he cannot effectively stand up in court and represent himself, then an order for electronic or other communication with the court is appropriate, but until Mr Mathews turns up, I can not make that determination. And it may be that if the court determines that he is unable to adequately represent himself, the rules relating to the appointment of a litigation guardian are engaged.
For all those reasons, it seems to me that I ought not proceed with any applications this morning, but I should adjourn the hearing of all outstanding applications to next Thursday at half past 9.
I accept the submissions made by Ms Garner for Clark’s that to adjourn the proceedings will engage her client in further costs which it is unlikely to retrieve from Mr Mathews. I have read the submissions in relation to the joinder of Clark’s to these proceedings and on their face, the submissions are perfectly sensible and, if accepted, would lead to a dismissal of Mr Mathews’ application against Clark’s. It is, after all, trite that unless there is a certification of termination issued under s.46PO of the Australian Human Rights Commission Act1986 (Cth) there can be no jurisdiction in this court in respect of a claim made under one of the relevant pieces of discrimination legislation.
That is not to say that Mr Mathews, if he appears on the next occasion, will not persuade me that he should succeed on the joinder but it is difficult to see how he could at the moment. The written submissions do not address the discharge of the orders numbered 2 and 3 of Rangiah J and it may be that some oral or written submissions need to be addressed towards that issue.
But with the benefit of the remarks that I have made, it will be up to the third party to elect whether to appear on the next occasion or not. I do not intend to insist upon the third party appearing on the next occasion but if the third party chooses to do so, I will hear anything further from the third party. If the third party chooses not to do so, I will not determine the application for joinder on the basis that the third party has not appeared and I will take the written submissions into account, as I have indicated I shall.
Although it is not particularly satisfactory, in the circumstances of this case, that course will probably mean an appropriate balance can be struck. Otherwise, I direct that on the adjourned hearing of these applications, that is at 9.30 am on Thursday, 26 June, 2014, the applicant appear personally.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Jarrett
Associate:
Date: 28 July 2014
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