Mathews v State of Queensland (No 2)
[2014] FCCA 1658
•23 June 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MATHEWS v STATE OF QUEENSLAND & ANOR (No.2) | [2014] FCCA 1658 |
| Catchwords: PRACTICE AND PROCEDURE – Where applicant failed to appear at directions and interlocutory hearings – where applicant claims his is disabled – where applicant has not filed any affidavits or other evidence of his disability – applicant unwilling to prosecute proceedings by appearance in usual way – no appearance by applicant to prosecute any applications by him – applications dismissed. |
| Legislation: Australian Human Rights Commission Act 1986 (Cth) |
| Mathews v MacDonnell and Others (2011) FCA 825 Mathews & State of Queensland (2014) FCA 574 |
| 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: | 23 June 2014 |
| Date of Last Submission: | 23 June 2014 |
| Delivered at: | Brisbane |
| Delivered on: | 23 June 2014 |
REPRESENTATION
| There being 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
Pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 all outstanding applications be dismissed.
The applicant pay the respondent’s cost of and incidental to the proceedings to be assessed and paid according to the Federal Court Rules2011 such assessment to include any costs incurred in the proceedings prior to the transfer of the proceedings to this Court.
The applicant pay Clark’s Logan City Bus Service (Qld) Pty Ltd’s costs of and incidental to the proceedings to be assessed and paid according to the Federal Court Rules2011 such assessment to include any costs incurred in the proceedings prior to the transfer of the proceed to this Court.
| 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 an originating application that was filed in the Federal Court of Australia on 19 December, 2013. The application purports to be filed pursuant to the Australian Human Rights Commission Act1986 (Cth). In the application, the applicant claims against the State of Queensland (Department of Transport and Main Roads – TransLink Transit Authority), (Queensland Police Service), certain relief. He claims $100,000 in damages for pain and suffering, $100,000 for permanent loss of facility, $100,000 for humiliation, $100,000 for “emotional shock of being violently assaulted by TransLink employees”, and finally, punitive damages of $10 million.
In the application, both on the second page and later on the fifth page, Mr Mathews claims that he has “multiple disabilities”. On the second page, paragraph 3 of his application, he lists 14 of those disabilities. On page 5 under the heading “Disabilities”, he sets out another list of his disabilities which is in remarkably similar terms to the list referred to by Logan J in a decision called Mathews v MacDonnell and Others (2011) FCA 825.
The present application filed by Mr Mathews was, on 24 April, 2014, transferred to this court. By that time, Mr Mathews had filed no less than five affidavits and 13 interlocutory applications. Part of the order of Rangiah J made on 24 April, 2014 was that Clark’s Logan City Bus Service (Qld) Pty Ltd make discovery of documents in its control that are directly relevant to the proceedings. There was a consequential order for costs against the applicant in respect of Clark’s costs and expenses of making discovery and giving inspection. Clark’s appears now in these proceedings before me.
Since the matter has been before me, the applicant has caused to be filed a further four interlocutory applications. In some of those interlocutory applications, he asks for leave to appear by telephone in the proceedings. When his application for leave to appear by telephone was first made, he was informed of the procedure that was required to be followed to secure an order for leave to appear by telephone. That included securing the consent of the other parties to the proceedings and the provision to my associate of a landline telephone number at which the applicant might be reached for the purposes of the hearing.
Neither the consent of the respondents nor the provision of a telephone number, landline or otherwise, was made and so the applicant was advised that there was no leave for him to appear by telephone. Permission to appear by telephone is the exception rather than the rule as, Logan J points out in Mathews v MacDonnell (above).
In addition to the application for leave to appear by telephone, there has now also been an application for all of these proceedings to be dealt with on the papers.
The matter came before me most recently on 16 June. There was no appearance on that occasion by the applicant. There was an appearance by each of the other parties including Clark’s. I adjourned the application to today. I ordered that the applicant appear personally today and I ordered that the costs of all parties be in the cause.
There is no sworn medical evidence before me which would suggest that it is appropriate for leave to appear by telephone be granted to the applicant or that for some other reason the applicant be excused from personal attendance.
It was said in support of his application for leave to appear by telephone, in submissions and correspondence, to which I referred on the last occasion, that the applicant does not acquit himself well in court. His disabilities, he says, means that he looks like a “dithering idiot” when he presents his case orally and, for that reason, telephone appearance was preferable. But I do not understand that. Whether one appears personally or by telephone, one has to make submissions and the applicant’s disabilities will either prevent him from making submissions or they will not. Perhaps that is the reason for the application now to have the matters dealt with on the papers but I really do not know.
In any event, the applicant has effectively deprived the court of the opportunity of assessing for itself whether he truly is incapable of orally presenting his own case as he suggests or whether it is simply a refusal to come to court.
These matters taxed Logan J in the decision to which I have already referred and his Honour made some comments about the right of a litigant to appear other than personally in proceedings. In that decision, his Honour said:
Mr Mathews failed to appear at the first directions hearing in this matter. He had asserted a right to appear by telephone. He was not given any permission, exceptionally, to appear by telephone. In the ordinary course of events in a case such as this, appearances would be made in person. Particularly where there is a litigant in person, it is sometimes the case, and the present I apprehend to be one, that the seriousness of a judicial proceeding and the responsibilities of acting accordingly are only brought home by personal appearance. The remoteness which can attend a telephone appearance can fail to bring home adequately to a litigant in person the formality of a judicial proceeding and the need to behave accordingly.
More recently, in Mathews & State of Queensland (2014) FCA 574, Dowsett J was dealing with an application for leave to appeal. In that decision, his Honour said:
I have previously outlined the history of the matter. I need not do so again. I do not accept that the applicant is entitled to dictate the terms upon which he should be allowed to appear by telephone. The only condition put upon such appearance was that he provide a telephone number. He has apparently refused to do that. He is not here. His application for leave to appeal should be dismissed.
The circumstances before me are not unlike those before Logan J or Dowsett J. Those cases involved the same applicant now before me. Mr Mathews has been put on notice that he is required to appear personally and it may be that if he had appeared personally and prosecuted his applications to appear by telephone at subsequent hearings or perhaps to have the balance of the applications dealt with on the papers, the court may have been disposed to make those orders. So much would have depended upon the argument and Mr Mathews appearance before the Court. But Mr Mathews has chosen not to adopt that course.
Mr Mathews has sent to my associate by email and Mr Hamlyn-Harris has referred to some submissions that Mr Mathews has purported to make in these proceedings. I intend to pay no regard to those for to do so would simply be to determine the application in a way in which Mr Mathews has asked for it to be determined without first securing an order that it be so determined.
He has failed to appear this morning. In those circumstances, I intend to dismiss all of his outstanding applications pursuant to the provisions of rule 13.03C(1)(c) of the Federal Circuit Court Rules. I will hear the parties as to costs.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Jarrett
Associate:
Date: 28 July 2014
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