Peacock v HREOC
[2007] FMCA 1360
•10 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PEACOCK v HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION & ANOR | [2007] FMCA 1360 |
| ADMINISTRATIVE LAW – Summary dismissal – no reasonable prospect of success – abuse of process. |
| Human Rights and Equal Opportunity Commission Act 1986 (Cth), ss.11, 20 Federal Magistrate Court Rules 2001, rr.4.04, 13.10 |
| Swain v Hillman [2001] 1 All ER 91 Vivid Entertainment LLC v Digital Sinema Australia Pty Ltd [2007] FMCA 157 Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1 |
| Applicant: | MORTIMER JOHN PEACOCK |
| First Respondent: | HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION |
| Second Respondent: | THE COMMONWEALTH ATTORNEY-GENERAL |
| File number: | SYG 1432 of 2007 |
| Judgment of: | Turner FM |
| Hearing date: | 2 August 2007 |
| Date of last submission: | 2 August 2007 |
| Delivered at: | Sydney |
| Delivered on: | 10 August 2007 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Second Respondent: | Ms K. Eastman |
| Solicitor for the Second Respondent: | Ms D. Watson of Australian Government Solicitor |
ORDERS
The application is dismissed pursuant to Rule 13.10(a) and Rule 13.10(c).
The orders of the Court made on 29 May 2007, numbers 2-14, are vacated.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1432 of 2007
| MORTIMER JOHN PEACOCK |
Applicant
And
| HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION |
First Respondent
| COMMONWEALTH ATTORNEY-GENERAL |
Second Respondent
REASONS FOR JUDGMENT
By notice of motion filed on 27 June 2007, the Commonwealth Attorney-General seeks summary dismissal pursuant to Rule 13.10 of the Federal Magistrates Court Rules 2001 of the applicant’s claims in matter SYG 1432/2007, and an order for costs. Rule 13.10 provides:
Disposal by summary dismissal
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a)the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
(b)the proceeding or claim for relief is frivolous or vexatious; or
(c)the proceeding or claim for relief is an abuse of the process of the Court.
The Commonwealth Attorney-General was joined as the second respondent in matter SYG 1432/2007 by order of the Court on 29 May 2007.
The application in SYG 1432/2007 seeks an order that the Human Rights and Equal Opportunity Commission (“HREOC”) “arrange for independent and impartial inquiry into the complaint pursuant to its own powers and/or those of the Attorney-General (ss.13 and 17 Act refer)”, which results from a claim that HREOC review its decision “not to inquire or effect inquiry into its own acts and practices that were or may have been inconsistent with or contrary to any human right of the applicant and/or not to conciliate with the applicant on an effective remedy for the violation by the respondent of his rights.”
The applicant’s overall complaint is that he was compulsorily retired at age 65 pursuant to s.76V(1) of the Public Service Act 1922 (Cth). That event led to the protracted litigation set out on pages 001-004 of the affidavit of Dale Jennifer Watson dated 26 June 2007 (“Watson”), and filed on 27 June 2007.
During the hearing of the notice of motion on 2 August 2007, the applicant agreed with the Court that the full extent of his claim before the Court is that “HREOC refusing to conduct an inquiry into its own act of failing to report to Parliament”, denied him his human rights (Transcript 33, line 36; 35, line 37; 36, line 3).
This claim depends on the applicant having a human right to have HREOC conduct such an enquiry and report to Parliament. Whether such a right exists depends on whether HREOC had a duty to conduct such an enquiry and report to Parliament. If there was no duty, there was no right. HREOC had no such duty.
Section 11 of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (“the Act”) sets out the functions of HREOC. The provisions relevant to these proceedings are as follows (highlighting added):
(1) The functions of the Commission are:
… … …
(f) to inquire into any act or practice that may be inconsistent with or contrary to any human right, and:
(i)where the Commission considers it appropriate to do so – to endeavour, by conciliation, to effect a settlement of the matters that gave rise to the inquiry; and
(ii)where the Commission is of the opinion that the act or practice is inconsistent with or contrary to any human right, and the Commission has not considered it appropriate to endeavour to effect a settlement of the matters that gave rise to the inquiry or has endeavoured without success to effect such a settlement–to report to the Minister in relation to the inquiry;
… ……
(k) on its own initiative or when requested by the Minister, to report to the Minister as to the action (if any) that, in the opinion of the Commission, needs to be taken by Australia in order to comply with the provisions of the Covenant, of the Declarations or of any relevant international instrument;
The Commission therefore has a function to enquire into any act or practice that may be inconsistent with or contrary to any human right, and if it conducts an enquiry, to report to the Minister in relation to the enquiry. Where the Commission decides not to endeavour to effect a settlement, or the endeavour to settle was not successful, the Commission must report to the Minister in relation to the inquiry.
Section 20 of the Act provides the Commission with a discretion not to inquire in defined circumstances, including (iii) and (v) as follows:
(iii)where some other remedy has been sought in relation to the subject matter of the complaint – the Commission is of the opinion that the subject matter of the complaint has been adequately dealt with;
………
(v)where the subject matter of the complaint has already been dealt with by the Commission or by another statutory authority – the Commission is of the opinion that the subject matter of the complaint has been adequately dealt with; or
………
Where the Commission decides not to inquire, placitums 11(1)(f)(i) or (ii) do not apply, and a duty to report to the Minister under s.11(1)(f) does not arise.
The letter from the President of HREOC to the applicant on 16 April 2007 (Affidavit of Watson (ante), attachment Q) included the following decision (highlighting added):
I have personally considered all the information you have provided in this matter and the detailed background to your current complaint. I have decided to decline to continue to inquire into your current complaint on the basis that:
· Where some other remedy has been sought in relation to the subject matter of the complaint – the Commission is of the opinion that the subject matter of the complaint has been adequately dealt with
· Where the subject matter of the complaint has already been dealt with by the Commission or by another statutory authority – the Commission by is of the opinion that the subject matter of the complaint has been adequately dealt with.
I make this decision pursuant to sections 20(2)(c)(iii) and 20(2)(c)(v) of the HREOCA.
That decision was properly open to the President. The obligation under s.11(1)(f) to report to the Minister arises only where placitum (i) or (ii) of s.11(1)(f) applies, that is:
(i)where the Commission conducts an inquiry and endeavours by conciliation to settle the matter, or
(ii)where the Commission conducts an inquiry and is of the opinion that the act or practice is inconsistent with or contrary to any human right, and has not endeavoured to settle it, or endeavoured to settle it without effect.
Here, placitum (i) did not arise, as the Commission did not endeavour by conciliation to settle the matter that gave rise to the inquiry; placitum (ii) did not arise as the Commission did not form the opinion that the act or practice was inconsistent with or contrary to any human right. There was therefore no obligation to report to the Minister under s.11(1)(f). The applicant had no right to have a report made to the Minister; not making a report therefore did not deny the applicant a human right. The Court is satisfied that the applicant has no real (as opposed to “merely arguable”: Swain v Hillman (post)) prospect of successfully prosecuting the proceeding or claim.
The Court is satisfied that the applicant’s case cannot succeed and “to allow the proceeding to stand would involve useless expense”: General Steel Industries Inc v Commissioner for Railways (NSW) (post).
Other grounds that the applicant may have raised
As the applicant agreed with the Court on the full extent of the applicant’s claim before the Court as set out in paragraph 5 above and that claim has been dealt, the Court is not required to cover other grounds that the second respondent thinks may be distilled from the applicant’s application.
The Court, however, refers to and accepts the following submissions for the second respondent:
Abuse of Process
The Application should be dismissed pursuant to Rule 13.10(3)(c) [sic] as the proceedings constitute an abuse of process of the Court.
As discussed above, in the current proceedings, the Applicant seeks to re-litigate grounds that were argued by the Applicant in the previous proceedings in the Federal Magistrates Court, the Federal Court, the Full Court of the Federal Court and the High Court. It is clearly an abuse of process for the Applicant to attempt to re-litigate the same matter by reference to the same cause of action as in the previous proceedings.
The fact that the Application relates to a different ‘decision’ to those dealt with in the previous proceedings does not mean that the Application involves a different cause of action. As Brennan J stated in Port of Melbourne Authority v Anshun (1981) 147 CLR 589 at [15], the determination of whether the same cause of action arises is generally a question of ‘substance’ as opposed to ‘form’. The same cause of action arises in the current proceedings as that which arose in the previous proceedings as the substratum of facts giving rise to the right to review is substantially the same, the substance of the proceedings in the same and the right to relief is informed by the same substantive law principles.
Therefore, it would be an abuse of process to permit the Applicant to continue the Application.
The Court decides that the application to it is an abuse of the process of the Court and dismisses it pursuant to Rule 13.10(c).
As stated by Federal Magistrate Driver in Penhall-Jones v State of New South Wales [2006] FMCA 235 at [9]:
The Court’s jurisdiction to summarily dismiss an application should be exercised with great caution3. The power to dismiss, pursuant to rule 13.10(a) may be exercised if the applicant’s case is unarguable, in the sense that no arguable case is advanced and there is no reasonable prospect that an arguable case could be advanced.
3 Rana v University of South Australia [2004] FCA 559 at [72]-[73].
Section 17A of the Federal Magistrates Act 1999 (Cth) provides:
Summary judgment
(1)The Federal Magistrates Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a)the first party is prosecuting the proceeding or that part of the proceeding; and
(b)the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.
(2)The Federal Magistrates Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a)the first party is defending the proceeding or that part of the proceeding; and
(b)the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3)For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a)hopeless; or
(b)bound to fail;
for it to have no reasonable prospect of success.
(4)This section does not limit any powers that the Federal Magistrates Court has apart from this section.
Rule 13.10 of the of the Federal Magistrates Court Rules 2001 has been set out above. The phrase “no reasonable prospect of success” in s.17A of the Federal Magistrates Act 1999 (Cth) was examined by Justice Lindgren in White Industries Australian Ltd v Commissioner of Taxation [2007] FCA 511. His Honour stated at [58-60]
[58] Third, while s.31A of the FCA Act (mutatis mutandis, s.17A of the FM Act) achieves nothing of significance in relation to migration cases, it is of general application and therefore affects all proceedings brought in the Court. The question of the precise meaning of s.31A of the FCA Act and s.17A of the FM Act and of any change they have made has already been the subject of numerous decisions in this Court and the Federal Magistrates Court. The most recent review of them of which I am aware is that of Driver FM on 19 March 2007 in Vivid Entertainment LLC v Digital Sinema Australia Pty Ltd [2007] FMCA 157 at [18]-[28]. The authorities to which his Honour referred are: Howard v Australian Fisheries Management Authority [2006] FMCA 975; MG Distribution Pty Ltd v Khan [2006] FMCA 666; Cate v International Flavours and Fragrances (Aust) Pty Ltd [2007] FMCA 36; Vans Inc v Offprice.Com.Au Pty Ltd [2006] FCA 137; Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 70 IPR 146; Jewiss v Deputy Commissioner of Taxation [2006] FCA 1688; Alphapharm Pty Ltd v Merck & Co Inc [2006] FCA 1227; Duncan v Lipscombe Child Care Services Inc (2006) 150 IR 471; Australian and International Pilots Association v Qantas Airways Ltd [2006] FCA 1441; Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd (in liq) (formerly Stanley Thompson Valuers Pty Ltd) [2006] FCA 1416; Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401; Hicks v Ruddock [2007] FCA 299. Not one of these cases was a migration case. In other words, the task of exploring the meaning of s.31A has arisen in a wide range of the cases in the Federal Magistrates Court and this Court, with the striking exception of migration cases, no doubt for the reason that I mentioned earlier: the provision is of no practical importance in them.
[59] I do not propose to add greatly to the discussion of the meaning and effect of s.31A. In the United Kingdom it has been held in the context of the similar rule 24.2 of the CPRs noted at [53] above, that the expressions “no real prospect of succeeding” and “no real prospect of successfully defending” require attention to be given to real, as opposed to “fanciful” or “merely arguable” prospects: Swain v Hillman [2001] 1 All ER 91 at 92; Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1 at [90], [95], [133]–[134], [158]–[162]; ED & F Man Products Ltd v Patel [2003] EWCA Civ 472 at [8]. The Queensland Court of Appeal has similarly held, following Swain v Hillman and Three Rivers District Council v Governor and Company of the Bank of England, that the “no reasonable prospects of success” test requires the court to determine whether there are “real” as opposed to “fanciful” prospects of success: Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232 at 235. The New South Wales Court of Appeal had to consider the expression “reasonable prospects of success” as it occurred in s.198J of the Legal Profession Act 1987 (NSW) in Lemoto v Able Technical Pty Ltd (2005) 63 NSWLR 300. That section prohibited a solicitor or barrister from providing legal services on a claim or defence of a claim for damages unless the solicitor or barrister reasonably believed on the basis of provable facts and a reasonably arguable view of the law that the claim or the defence had reasonable prospects of success. Later subsections elaborated on the meaning of the prohibition. This fact, coupled with the fact that the prohibition was directed to the reasonable belief of the solicitor or barrister, renders the discussion not directly relevant to the summary dismissal context in which the court is required to determine if there are reasonable prospects of success following an inter partes hearing.
In Rana (supra), Justice Lander stated at [68-75]
The application before the Federal Magistrate
[68] The respondent’s application was for summary dismissal pursuant to rr 4.04(1)(c) and 13.10(a). Rule 4.04(1)(c) permits a respondent's response to ask the Court to dismiss the application.
[69] Rule 13.10 provides:
Frivolous Proceedings
The Court may order that a proceeding be stayed or dismissed generally or in relation to any claim for relief in the proceeding, if it appears to the Court that in relation to the proceeding or claim for relief:
(a) no reasonable cause of action is disclosed; or
(b) the proceeding is frivolous or vexatious; or
(c) the proceeding is an abuse of the process of the Court.
[70] The rule is in similar terms to O 20, r 2(1) of the Federal Court Rules which provides:
Where in any proceeding it appears to the Court that in relation to the proceeding generally or in relation to any claim for relief in the proceeding -
(a) no reasonable cause of action is disclosed;
(b) the proceeding is frivolous or vexatious; or
(c) the proceeding is an abuse of the process of the Court;
the Court may order that the proceeding be stayed or dismissed generally or in relation to any claim for relief in the proceeding.
[71] The authorities under O 20, r 2(1) of the Federal Court Rules are relevant on a consideration of an application under r 13.10 of the FMC Rules, although regard must be had to the very important differences to which I have already referred.
[72] It is clear that an application under the Federal Court Rules for the summary dismissal of a proceeding will only succeed in the clearest of cases: Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91 per Dixon J. A court must proceed exceptionally cautiously. In General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129, Barwick CJ said:
It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; ‘so obviously untenable that it cannot possibly succeed’; ‘manifestly groundless’; ‘so manifestly faulty that it does not admit of argument’; ‘discloses a case which the Court is satisfied cannot succeed’; ‘under no possibility can there be a good cause of action’; ‘be manifest that to allow them’ (the pleadings) ‘to stand would involve useless expense’.
At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or ‘so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument’; ‘so to speak apparent at a glance’.
[73] The need for caution must be even more obvious in the Federal Magistrates Court when considering an application to summarily dismiss a claim for failing to disclose a reasonable cause of action. That is for the reasons already mentioned. There are no pleadings. There is, therefore, no concise document from which one can easily discern the existence or otherwise of a cause of action. The applicant is not obliged to file all affidavit evidence with the application, but only an affidavit which need not be the applicant's. It could not have been intended that an application under r 13.10 would give rise to an obligation upon the applicant to produce all of the applicant's evidence in order to determine whether the applicant could disclose a reasonable cause of action. If that were the obligation, the hearing of the application would almost become the trial.
[74] The Court, on hearing an application under FMC Rules 4.04(1)(c) and 13.10, could not be expected to weigh the evidence of the parties to determine whether the applicant had disclosed a reasonable cause of action. Again, that would amount to a trial of the action. What the applicant must disclose is a reasonable cause of action – not that on the evidence presently available the applicant will succeed on that cause of action.
[75] In my view, because the FMC Rules do not require pleadings; the parties are not obliged to tender all their evidence when the application and response is filed; there are few, if any, interlocutory processes available; and the Federal Magistrates Court is a low cost court, the Federal Magistrates Court should be very cautious about summarily dismissing an applicant's proceeding. That course should only be adopted when it is clear, beyond any doubt, that the applicant has not, and cannot, articulate in writing a reasonable cause of action. As I have already said, the philosophy of the Federal Magistrates Court is to provide inexpensive justice and a streamlined dispute resolution process. Litigants will often be self-represented and the documents they rely on as founding their claim will no doubt often be imprecisely articulated. In those circumstances, there is even more reason for the Federal Magistrates Court to be cautious before summarily dismissing an applicant’s claim.
The Court refers to the need for caution expressed in [73] above. In the present case, extensive affidavits and written submissions were filed by both the second respondent and the applicant. Also, the Court was careful in distilling with the applicant the full extend of his claim, as set out in paragraph 5 above.
The Court is satisfied that the applicant has no reasonable prospect of successfully prosecuting the claim, and that the applicant’s claim fails to disclose a reasonable cause of action: Rana (supra) at [79]. It is an abuse of the process of the Court.
The application is dismissed pursuant to Rule 13.10(a) and (c).
The orders of the Court made on 29 May 2007, numbers 2-14, are vacated.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Turner FM
Acting Associate: Mary Giang
Date: 10 August 2007
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