PEGG v The Honourable Justice John Alexander Logan of the Australian Federal Court & Ors
[2012] HCATrans 122
[2012] HCATrans 122
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No B47 of 2011
B e t w e e n -
PEGG
Plaintiff
and
THE HONOURABLE JUSTICE JOHN ALEXANDER LOGAN OF THE AUSTRALIAN FEDERAL COURT
First Defendant
THE AUSTRALIAN FEDERAL COURT
Second Defendant
THE COMMONWEALTH OF AUSTRALIA – AUSTRALIAN FEDERAL POLICE
Third Defendant
Application for an order to show cause
KIEFEL J
TRANSCRIPT OF PROCEEDINGS
AT BRISBANE ON WEDNESDAY, 16 MAY 2012, AT 10.16 AM
Copyright in the High Court of Australia
PEGG appeared in person.
MR M.D. HINSON, SC: If your Honour pleases, I appear for the third defendant. (instructed by DLA Piper Australia)
HER HONOUR: Thank you. Just one matter before we proceed to the substantive hearing, I think there may be an outstanding application for an order for anonymity in this Court. I think you filed an application?
PEGG: I did, your Honour.
HER HONOUR: I do not think it has ever been dealt with. It was not drawn to my attention as a matter to deal with. Mr Hinson, I doubt that the Commonwealth would have any objection?
MR HINSON: No.
HER HONOUR: There will be an order accordingly, just to set the record straight.
PEGG: Thank you, your Honour.
MR HINSON: That application suggested a pseudonym.
HER HONOUR: A pseudonym.
MR HINSON: Would it be appropriate for that pseudonym to be substituted in the title of the proceedings?
HER HONOUR: I am sorry?
MR HINSON: Paragraph 15, the last page of the application.
HER HONOUR: I see. The pseudonym, AISOS8, is that your preferred pseudonym rather than PEGG? Would PEGG suffice, because that is what we have been using?
PEGG: If it has already been used, your Honour, I would not worry about it.
HER HONOUR: Yes. I think the Registry just assumed that the order would be made and have entitled the proceedings accordingly. Thank you, Mr Hinson. Now, as we discussed on the last occasion, the principal matter raised against your application for an extension of time to file the order for writs of certiorari and mandamus was the question of the prospects of you succeeding in showing that Justice Logan’s judgment was in error. To found those writs you need to be able to show that there was an error of law. A denial of procedural fairness may be an error of law and, as I understand it, that is your substantial contention in relation to what occurred prior to the hearing before Justice Logan.
PEGG: Yes, your Honour.
HER HONOUR: I should say, I have read the judgments and I have read all of your submissions and affidavits and, of course, the Commonwealth’s.
PEGG: I actually have a submission in reply, your Honour, which I provided this morning.
HER HONOUR: Would you like to hand that up?
PEGG: Yes, please, your Honour.
HER HONOUR: Thank you. I should also add that there are submitting appearances for the other defendants in these proceedings. I will read it, if you would like to take a seat.
PEGG: Thank you, your Honour.
HER HONOUR: Perhaps you could assist me. I am just having a little difficulty following your point about other proceeding.
PEGG: Sorry. Your Honour, the ‑ ‑ ‑
HER HONOUR: The High Court Rules say that an application for mandamus must be made not later than six months after the date of judgment or other proceeding, but the Court, in any event, has power to extend the time and that is what we are concerned with now. So is there any other point arising out of the particular words used in the rule?
PEGG: Well, your Honour, I believe the argument from the defendants through each counsel was that the application for certiorari was made, I believe, 16 months after, but in actual fact, your Honour, it was made five months and – so in that sense the term “proceedings” I am arguing that it refers to Justice Reeves’ judgment.
HER HONOUR: I see. So that the time is not quite as large as the Commonwealth suggests it is?
PEGG: Yes, your Honour. In fact, your Honour ‑ ‑ ‑
HER HONOUR: I did not think that the Commonwealth were making a great deal about the delay or any potential prejudice to them, but I will take that up with Mr Hinson when it is his turn to speak and we can come back to that if they are making something about it.
PEGG: I understand, your Honour.
HER HONOUR: I thought the thrust of their submissions was, as I have said, the question of whether or not you are able to show, if this matter proceeded to a full‑scale hearing, whether you would be able to show that Justice Logan either denied you procedural fairness or that there was some other error of law which would justify the writs claimed.
PEGG: I understand, your Honour. I believe within my ‑ ‑ ‑
HER HONOUR: I follow what you have said there about what occurred in relation to the transcript and making it available. Of course, it is said against you that you asked for an extension of time and the court gave you that extension. You did not indicate that you were still having difficulties and you did not appear to indicate that to Justice Logan during the course of the hearing.
PEGG: Your Honour, during the mention date, Justice Logan made it fairly clear that he was not going to delay the matter.
HER HONOUR: I am sorry, I have not been clear. When the matter came on for hearing, I think it was 10 May, was it not, or the 5th? Yes, 5 May.
PEGG: Yes, 5 May, your Honour.
HER HONOUR: When the matter came on, you had already written to his Honour and the registrar got back to you and said his Honour will give you the extension of time that you ask for.
PEGG: I understand that, your Honour.
HER HONOUR: So you did ask for an extension. The court gave it to you. The point made against you in this is, well, you did not ask for another extension of time. If you were having difficulties, you could have. During the hearing on 5 May, you did not say that you were under any difficulties, so how is the court to know?
PEGG: Your Honour, Justice Logan made it clear on the very first mention date that he was not going to spend – well, I could find it for you – was going to – did not want to delay the matter, wanted to have the matter dealt with as quickly as possible. In fact, he would have been happy – I believe he even said he would have dealt with it on the day if he could.
HER HONOUR: Well, I think that is probably because of the nature of the matter, because it is an extension.
PEGG: Well, your Honour, it was not addressed as an extension.
HER HONOUR: Well, that is true, yes.
PEGG: Yes. If one looks at the transcript of the day of the hearing, Justice Logan actually dealt with it under subsection (2) rather than subsection (1)(b) as an application made out of time, your Honour. In fact, during the proceedings he ‑ ‑ ‑
HER HONOUR: I thought his Honour recognised that it was brought within the time limited because he said you did not have to show special circumstances.
PEGG: That is correct, your Honour. I believe the counsel for the respondent actually was the one that raised it, that special circumstances did not have to be ‑ ‑ ‑
HER HONOUR: I think they made an appropriate concession.
PEGG: Your Honour, during the proceeding, I requested the extension of time. In reflecting on what Justice Logan had said at the mention date that he was not going to delay the matter, I perceived that I was not going to be provided any further opportunity. So that is why I said to him – and at that stage I was under the impression it was still being heard as an application for an extension of time, your Honour, and during the proceedings at the hearing Justice Logan addressed it in one part – well, in most part, as, in fact, an application to seek leave to appeal, your Honour. In fact, it states it in one of my affidavits. It is addressed that it is not an appeal. It is an application for appeal. Exhibit B, your Honour. It states:
There is no change on the hearing date – it is leave to appeal, not an appeal proper.
HER HONOUR: Well, just looking at his Honour’s reasons, his Honour proceeded to determine it under Order 52 rule 15(1)(b) rather than under Order 52 rule 15(2), but that would have worked in your favour because you would not have had to show special reasons.
PEGG: But, your Honour, I did. That is the whole issue, that if the – during the proceedings, as I have mentioned, I believe, in my application and in my ‑ ‑ ‑
HER HONOUR: You gave an explanation for the delay. Do you mean that as your special reasons?
PEGG: Well, what I am saying, during the proceedings, your Honour, Justice Logan actually stated that I was not going to – he addressed it in one part where it was not so much an application for an extension of time, but, in fact, leave to appeal.
HER HONOUR: Well, that might have been during the course of the discussions, but that is not how his Honour has determined it in his reasons, which are the important part.
PEGG: I understand, your Honour. If I can just find ‑ ‑ ‑
HER HONOUR: Take your time, if you need to find something. I am sympathetic to the amount of paper that is around at the moment.
PEGG: Thank you, your Honour. I think I mentioned it – I am just trying to find, your Honour, Justice Logan ‑ ‑ ‑
HER HONOUR: Well, as I said though, the important aspect is the reasons for judgment in the way in which – if there is any point arising out – the way in which his Honour actually dealt with it.
PEGG: Your Honour, in the sense that I was provided four business days to access transcript and court documents exceeding 3,000 pages, I had to travel up and back from my home in Burleigh. I also had to prepare a grounds of appeal which ‑ ‑ ‑
HER HONOUR: But you did do that.
PEGG: Well, no, your Honour. What I prepared was what I could scratch together at the time. There was no consideration given whatsoever to my disability or that I was an unrepresented litigant.
HER HONOUR: Well, I am sure Justice Logan was very conscious of the fact that you were unrepresented.
PEGG: Well, your Honour, four days to access – to come backwards and forwards and to prepare a grounds of appeal and then, your Honour, on the day of the hearing, if I could have provided some of the documents that I had been permitted to – I mean, I was not even – in relation to Dr Lambeth, I was not even permitted to argue him. I was shut down straightaway, which is what occurred before Federal Magistrate Burnett. The point was, Group Captain Burnett or Dr Burnett or whatever – well, I assume it is correct saying Group Captain Burnett – Group Captain Lambeth was not a registered practitioner. It was contrary to ACT legislation, contrary to the AFP guidelines ‑ ‑ ‑
HER HONOUR: I am sorry, just to interrupt you. What you are saying is what you have realised subsequently are the points that you would have made that you say you did not have time to make?
PEGG: No, not subsequently, your Honour. I tried to raise them in court and I was shut down straightaway. I was told, “I have already ruled Dr Lambeth’s report is going to be ‑ ‑ ‑
HER HONOUR: This is before Federal Magistrate Burnett?
PEGG: It is, your Honour, and before Justice Logan it was pretty ‑ ‑ ‑
HER HONOUR: I think we need to focus upon what occurred before Justice Logan, you see, because the hurdle that you have is having to show that something went wrong there before you can get back to argue about Federal Magistrate Burnett’s decision.
PEGG: I understand, your Honour. The matter before Justice Logan was an application for an extension of time so I could access material which was relevant and pertinent to my application for an appeal. I was provided four days – this is the thing. It was an application for an extension of time. It was not an appeal. It was for me to be able to – an extension of time to access – and during that period, also, that 21-day period, your Honour, I had actually actively been speaking to the court in trying to request a copy of the transcript or how I go about seeking access to it. Your Honour, I was pretty much shut down on it and then I made the application for an extension of time and for a copy of the transcript, your Honour.
Now, your Honour, it was merely seeking a copy of the transcript which would have permitted me an opportunity to sit at home at my desk and then read through the documents carefully and then prepare a thorough grounds of appeal. Your Honour, instead I was provided four days in which case I was catching the train up and back from Burleigh – well, from Robina actually – early in the morning, get to court, read through the documents. I did not even break for lunch, your Honour. Now, your Honour, I would have thought that in some cases, if – I am a person with a disability, with a brain injury and, your Honour, as the report say, I also have ‑ ‑ ‑
HER HONOUR: Yes, I have seen that.
PEGG: Your Honour, if I am provided four days, what would a person without a disability be provided? Two days? Would that be reasonable? I mean, this is the thing. This is what I am taking about. I would doubt that ‑ ‑ ‑
HER HONOUR: Can I just ask you this though. The five grounds of appeal that you did prepare, do you still consider that they were correct grounds of appeal - the five that you did?
PEGG: No. The grounds that I prepared, your Honour, were hastily put together.
HER HONOUR: Then you provided another two grounds in your outline of argument before the court and those two grounds, were they grounds that you thought were proper grounds as well because Justice Logan looked at all seven, did he not?
PEGG: This is the thing, your Honour. I believe the respondent has stated that I provided a grounds of appeal, “a” being the word, a grounds of appeal, not the grounds of appeal. I know it is semantics, but, your Honour, what it meant was there was no way, your Honour, an unrepresented litigant with a disability who had had four days access to the documents could prepare it. Your Honour, I was swimming. I effectively believe that if I did not provide something to – and at that stage I was still under the impression it was seeking an extension of time, even though I thought – I could not work out why it had stated, well, it is not an appeal, it an application for – it is seeking appeal.
I mean, this is the strange thing about it, your Honour. I had not sought appeal, I had sought an extension of time in which – a reasonable extension of time in which to prepare grounds of appeal and for me to do that, I would have required access to the transcript for longer than four days. The transcript was like that and the court documents were about the same. So, your Honour, I did what I could and then certainly during the proceedings only to be handed what transcripts were available by the respondent, your Honour, and not being permitted any opportunity to point out certain things in those transcripts, your Honour, it put me at a loss. I was unable to argue any matter because, your Honour, I had insufficient opportunity to be able to actually prepare a case, your Honour.
HER HONOUR: How long did the hearing before his Honour take?
PEGG: Your Honour, I believe I put that in my affidavit which unfortunately I did ‑ ‑ ‑
HER HONOUR: Yes, I am sure you did. I will go back to that. But it was done mostly upon written submissions, was it not? You had prepared written submissions?
PEGG: I think I actually – yes, written submissions, yes, and I provided an oral – your Honour, I was all over the place, to tell you the truth.
HER HONOUR: You had identified the relevant pages of transcript that you had been asked to do?
PEGG: I had, your Honour.
HER HONOUR: The Commonwealth had put together a book of those for the hearing?
PEGG: No, your Honour. I was provided with those halfway through – well, almost to the end of my closing and I was not given an opportunity to actually search through and be able to show Justice Logan the ‑ ‑ ‑
HER HONOUR: Did you take copies for yourself when you searched the transcript or you were not able to do that?
PEGG: I was not permitted to, your Honour. Justice Logan made it clear that I was not permitted to take the transcripts out of the court precinct or make copies. The third defendant did provide them, I mean, late in the game but they did provide them.
HER HONOUR: What are the additional grounds that you would raise upon reflection?
PEGG: The additional grounds would be, your Honour, that, for example, the report which Federal Magistrate Burnett relied upon ‑ ‑ ‑
HER HONOUR: That is the psychiatrist whose qualifications you challenge?
PEGG: See, this is the thing, your Honour. It was actually a two‑pronged argument which I was denied any opportunity of actually approaching, that is that the assessment in 2006 was conducted illegally, contrary to AFP guidelines, contrary to the Health Professionals Act (ACT). It is a criminal offence, your Honour. Amazingly, your Honour, during the proceedings it also came up that Mr Lambeth was the only person who was not paid. He conducted it pro bono. Not only that, that I was denied the opportunity of raising that Mr Tony Cotton, the manager of Wellbeing Services, at the time was Colonel Anthony Cotton, head of the Australian Defence Force Psych Services. He was on long-service leave. He was, in effect, Group Captain Lambeth’s commanding officer.
The whole point was is the report that I had attached is unsigned and undated and it states Dr Leonard Lambeth, your Honour – the ACT Medical Board has already stated there was no Dr Leonard Lambeth in the ACT at that date. In fact, there was no Dr Leonard Lambeth in New South Wales either. I believe Federal Magistrate Burnett was putting forward that I had asked for a military practitioner, a military doctor. Your Honour, Mr Lambeth, whilst he may be a Group Captain Lambeth, at the time was not a military medical practitioner.
HER HONOUR: I understand the point.
PEGG: Because under the guidelines they have to be registered in the State they are performing duties. But I was denied any opportunity of raising any of that, your Honour. I was denied the opportunity to bring in the – to seriously affect the credibility of certain witnesses that appeared for the AFP, for example, Ms Margules, Dr Czoban and Mr Cotton. Then we have got the – if I could have provided, your Honour, the transcripts of the matter before the federal magistrate where Ms Millar and Ms Margules both state that I was returned to work on fulltime hours, but Federal Magistrate Burnett says, no, their evidence was that I was returned on fulltime hours on paper only, that in actual fact I was working reduced hours so I could receive a full wage, which has gone before, but anyway.
The point was Ms Margules and Ms Millar both state I was returned on fulltime hours. In fact, Ms Millar’s evidence also suggests that my behaviour at the time, which is what I was dismissed for, could likely have been because of my brain injury. Not only that, but Dr Czoban, which amazingly he stated that, “If I had known that you had been returned to work on fulltime hours, I certainly would have done something about it”, which is false, your Honour, because I had actually approached him on the second day of my return to work and informed him that I had been returned on fulltime hours and I could not handle it. I have also got – there was also an email sent out, but they were all ignored, your Honour, that ‑ ‑ ‑
HER HONOUR: This is the question of whether or not the Australian Federal Police should have had a graduated return to work that you were able to cope with?
PEGG: Your Honour, a graduated return to work in accordance with the AFP guidelines for rehabilitation.
HER HONOUR: This was an issue that was raised before Federal Magistrate Burnett, but your point is that there is information ‑ ‑ ‑
PEGG: Well, I was denied the – in saying that, your Honour, I was actually denied the opportunity of, like I said, cross‑examining the defence witnesses in relation to the evidence that I had obtained, because Federal Magistrate Burnett, he did. He refused me any opportunity – every time I tried to raise Mr Lambeth, it was shut down straightaway – no, that matter has already been dealt with, move on. So I was denied every opportunity to raise the credibility – I mean, this is the whole point, the report and the assessment by Mr Lambeth are two different issues. The report is not signed, is undated. There is no Dr Lambeth because it states June 2006 and it does not state, unlike the legally provided assessments which were conducted by Health Services Australia here in Brisbane and one independent, your Honour, they provide all the documents – they provided all the information that had been provided by the AFP. They answered the question which the AFP had asked them. They actually wrote down the questions and answered the questions.
The funny thing is, a month after, say, for example, Dr McIntyre’s report who – his actually is not worse, but what I would say was more – he went a little bit of a different route – similar, but he said, “No, I think it is a lot more severe than what the other practitioners have said. I would say that he should return to work on three days per week, three hours per shift”, which shows, your Honour, how significant the head injury was. Not only that, but, your Honour, he also stated that, “People should be aware of the result of his injury. He believes he is a lot more advanced than what he is”.
Your Honour, then no more than a month later, your Honour, I am assessed again, well, this time by a person wearing – group captain in an RAAF uniform in AFP headquarters and I was told, well, you had – I was directed to attend that assessment under the AFP Act. So, your Honour, if I had known at the time that he was not a registered health professional, that he was illegally performing that assessment, I would have either raised it with the AFP then and there or just turned up on the day and arrested Lambeth. This is the whole point.
Then the report – the funny thing is, your Honour, all the other reports, Dr Sowby, Mr Perros, Dr McIntyre, Dr McLachlan, they all took about one to two weeks – well, actually, roughly, most of them were about two weeks for them to prepare. The funny thing is I received this report, the unsigned report, undated report early the next morning after the assessment.
HER HONOUR: I think I understand what you have said. Some of this is in your written submissions.
PEGG: I question, your Honour – I do not believe – I mean, why would Mr Lambeth put himself in the position if he had been a doctor but was an unregistered practitioner. So technically, your Honour – and I have spoken to the ACT Health Medical Board and they stated, no, if they are not registered they are not allowed to use the term “doctor” because it indicates they are registered, because they do not have a doctorate, they can only use it when they are registered.
HER HONOUR: But his assessment, the relevance of it, was as to your return to work being fulltime or graduated.
PEGG: But this is the thing, your Honour, I do not agree that Dr Lambeth had actually prepared that report. That is the point that I was denied the opportunity of arguing. For example, a month after Dr McIntyre, who states three days, three hours per week, this report comes out that says – amazingly, your Honour, because I have certain emails saying that they wanted to move me back to Canberra from Sydney. Amazingly, this report states all that, he should be moved back to Canberra. Also states that I can return to full operational duties, a month after an assessment by a legally qualified health professional states three days, three hours per week.
HER HONOUR: I understand what you are saying.
PEGG: And states, your Honour, that I have a – that effectively brushes over my brain injury but says it is a pre‑existing personality disorder. Your Honour, none of the other practitioners – well, let us say the legally sourced practitioners who wrote a report – like, again, I maintain that report was not written by a Dr Leonard Lambeth because there was no Dr Leonard Lambeth.
HER HONOUR: I understand what you have said that.
PEGG: But, your Honour, none of the other practitioners stated that I had a personality disorder. In fact, your Honour, one would assume that the AFP would have picked up on a personality disorder before I joined the AFP.
HER HONOUR: Now, I think I understand the scope of the evidentiary point that you say you were not able to raise properly before Federal Magistrate Burnett.
PEGG: Certainly, your Honour, Federal Magistrate Burnett relied upon that heavily.
HER HONOUR: But just getting back to what happened before Justice Logan, that is the basis for your application for a writ of certiorari and basically it is that you saying you did not have enough time.
PEGG: I was denied a reasonable opportunity, your Honour, to access ‑ ‑ ‑
HER HONOUR: I understand your submissions there. Then you also seek a writ of mandamus against the Federal Court to require the Federal Court to hear your appeal from Justice Logan.
PEGG: Yes, your Honour.
HER HONOUR: Now, the problem with that is that the Federal Court of Australia Act and the Rules do not really allow the Federal Court to have an appeal, to give you an appeal. So it is a little difficult for this Court to make an order about that.
PEGG: Well, perhaps an application for at least to seek an appeal for – what was mentioned before, not an appeal proper, but at least make application to seek leave to appeal.
HER HONOUR: Well, as I understand what is put against you is that once you have regard to the Federal Court of Australia Act and the Rules, there is no appeal from the decision of Justice Logan. There is just simply no availability of such an appeal.
PEGG: That is where the certiorari ‑ ‑ ‑
HER HONOUR: No. Mandamus is what you seek against the Federal Court. Certainly in relation to Justice Logan you seek certiorari quashing the decision. That would open the way. But what I am really saying to you is, if certiorari was not available, if you could not show a denial of procedural fairness so that Justice Logan’s decision was quashed, you do not have any other freestanding basis for a mandamus. Your application for an order of mandamus to require the Federal Court to hear an appeal from Justice Logan depends upon Justice Logan’s decision being quashed by certiorari. Do you understand?
PEGG: I understand that, your Honour, yes.
HER HONOUR: You understand that that is how your application is structured.
PEGG: I believe I understand what you are saying.
HER HONOUR: Well, the critical element is the certiorari.
PEGG: Yes.
HER HONOUR: Mandamus is simply what follows if you get the certiorari.
PEGG: Yes, your Honour. I understand that.
HER HONOUR: I see. Yes, thank you. Is there anything else you want to add to your written submissions?
PEGG: Yes. I just wanted an opportunity and four days ‑ ‑ ‑
HER HONOUR: Yes. Well, I understand what you have said. Yes, thank you. I will hear from Mr Hinson.
PEGG: Thank you, your Honour.
HER HONOUR: Yes, Mr Hinson.
MR HINSON: Your Honour is correct at the outset to note that the Commonwealth takes no point about the delay per se. It does not contend that there is any prejudice. It is simply about the prospects of success question. In relation to the plaintiff’s point about other proceeding and two rules, the one dealing with certiorari and the one dealing with mandamus, can I hand up to your Honour a copy of page 664 from 228 CLR 651. This is a decision of Bodruddaza v The Minister, paragraph 32 at page 664, your Honour. After reciting the rule, the Court said:
It may be accepted for present purposes that the decision of the delegate answers the description of “other proceeding”.
Of course, mandamus and certiorari lie not only against courts, the Federal Court, but also against administrative decision‑makers and it is in that context that the words “or other proceeding” in the two rules should be understood because each of them refers to a judgment, order, conviction which is apt to describe some determination ‑ ‑ ‑
HER HONOUR: Do I understand it correctly then that the applicant seeks to have time run from Registrar Baldwin’s decision rather than ‑ ‑ ‑
MR HINSON: Rather than September – yes, Registrar Baldwin’s decision I think was about a month after Justice Logan’s decision.
HER HONOUR: But as I have said to the applicant, that would only shorten the period which goes to the exercise of discretion, but it does not affect my ability to extend the period.
MR HINSON: No, it does not. It is just that your Honour raised the question about proceeding that ‑ ‑ ‑
HER HONOUR: Yes, thank you. I understand now.
MR HINSON: It was just to draw this to your Honour’s attention because, of course, administrative proceedings may be the subject of either of the constitutional writs, not just court judgments, orders or convictions. In answer to your Honour’s question about the length of the hearing before Justice Logan, the transcript of the hearing, of course, is exhibited to Ms Duniam’s affidavit. As I read it, the proceeding commenced at 10.17 and was adjourned at 1 minute past 1. It is exhibit SXD ‑ ‑ ‑
HER HONOUR: I have it. Yes, I have the transcript. Thank you.
MR HINSON: Yes. The front page, your Honour, shows that the proceeding commenced at 10.17 and if your Honour goes to page P‑54 of the transcript, the court adjourned at 1 minute past 1 and his Honour delivered judgment at 2.27. I do not recall having seen any adjournment for a morning break on my reading of the transcript and my instructor tells me that there was no adjournment.
HER HONOUR: They are a rare occurrence in the Federal Courts.
MR HINSON: Yes. While your Honour has the transcript, can I just ask your Honour quickly to look at page P‑14 commencing at about line 40, and I do not ask your Honour to read this now necessarily, but going through to page P‑17 there was discussion of the point that the plaintiff referred to this morning about Dr Lambeth and his lack of registration and, indeed, that was one of the grounds of appeal before Justice Logan. If your Honour has the reasons for judgment of Justice Logan, he sets out, at pages 4 and 5 of the reasons, the seven proposed grounds of appeal. There was a point, firstly, about bias, which was the federal magistrate was also a group captain within the Royal Australian Air Force Reserve. Grounds 2 and 3 deal with Dr Lambeth and his registration status, as does ground 4, as does ground 5 and as does ground 6.
HER HONOUR: Yes, I see.
MR HINSON: In the plaintiff’s supplementary submissions in reply that were handed up to your Honour this morning, page 5, paragraph 23, the plaintiff poses two questions. The first is whether Justice Logan fairly considered the plaintiff’s cognitive disability and, secondly, whether Justice Logan considered in any degree the unrepresented status of the plaintiff and/or his cognitive disability. His Honour plainly was aware that the plaintiff was self‑represented. So far as the plaintiff’s cognitive
disability is concerned, there was no medical evidence placed before his Honour as to the plaintiff’s disability. There was reference to it obviously in the federal magistrate’s decision, but that decision concerned events some time ago. In other words, there was no up‑to‑date medical report.
HER HONOUR: You mean no medical report bearing upon difficulties he might have been having during the proceedings?
MR HINSON: Yes, your Honour, and this is necessarily a matter of impression and judgment, but if your Honour reads the transcript of proceedings before Justice Logan, your Honour will be left, in my submission, with an impression that the plaintiff was not suffering from, as far as one can judge from reading a transcript, was not suffering from any cognitive disability which would or should have been apparent to Justice Logan or, to put it another way, he presented intelligible and apparently focused arguments.
Yes, in some respects he may not have had a full understanding of some legal points that his Honour was trying to make, but one could well understand that because the plaintiff is not legally represented, although I understand he is perhaps undertaking some legal studies. But there is nothing, from reading the transcript, which would indicate to a reader that there is any reason to think that the plaintiff was suffering from any cognitive disability which affected his capacity within the timeframes that had been set by court directions, including extension to prepare material to be able to do so. I do not want to repeat what is in the written submissions, unless your Honour has some further questions I might assist with.
HER HONOUR: No, thank you, Mr Hinson. Is there anything that you would like to say in relation to what Mr Hinson has said?
PEGG: Your Honour, in relation to the disability, I had the impression that the Disability Discrimination Act actually altered now in relation to ‑ ‑ ‑
HER HONOUR: I do not think for the purposes of the question about procedural fairness we are actually in the territory of the Disability Discrimination Act.
PEGG: I understand that, your Honour.
HER HONOUR: Although it obviously indicates what is held to be statutory forms of discrimination. I think it is more a question of procedural fairness and ‑ ‑ ‑
PEGG: I am not alleging discrimination, your Honour.
HER HONOUR: No.
PEGG: All I am mentioning is that ‑ ‑ ‑
HER HONOUR: It is just a question of what was procedurally fair to you as a litigant in the court, but that does require some consideration by a judge who is aware of any difficulties that you may be labouring under. What Mr Hinson has said is he queries whether or not Justice Logan would have been aware that you were labouring under the difficulties you speak about because you spoke quite coherently and eloquently on the day of the hearing and you did not raise the fact that you had not had time. You engaged in a discussion with the judge over quite a lengthy period.
PEGG: Your Honour, what am I to do when I am provided limited amount of time to prepare a grounds of appeal when it was an application for an extension of time? Your Honour, we have got what Justice Logan actually said during the proceedings when he said, “this is the only opportunity you are going to get”, you know, and he stated, “I am not going to shoot at a ‑ ‑ ‑
HER HONOUR: A moving target.
PEGG: Yes.
HER HONOUR: I think that is sometimes the way judges try to keep people focused on an argument.
PEGG: No, he was ‑ ‑ ‑
HER HONOUR: Perhaps do not read too much into those sorts of statements.
PEGG: Your Honour, this is the whole point, your Honour, that he stated that this is the only opportunity that I was going to get. On the mention date he stated he was going to deal with the matter as quickly as possible. Your Honour, I do not know – I mean, maybe it was the wrong thing, maybe I should have gone into the matter – gone into the case saying, “I am sorry, your Honour, I am foundering here. I cannot argue anything”. Your Honour, he would just have gone, “See you later. Dismissed.” I mean, I have got to put some confidence in my matter. I have got to play the cards I am dealt, your Honour.
As for the disability, your Honour, I would have believed that that would have been – I actually mentioned it in my application to the court. I identified that because of my disability I would need time to access and
prepare the grounds of appeal. I had already identified that, your Honour, in the application for an extension of time.
HER HONOUR: Yes, all right. Thank you. I will consider this matter during an adjournment and give my decision at 2.15 this afternoon.
AT 11.03 PM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY
UPON RESUMING AT 2.14 PM:
HER HONOUR: The applicant seeks an extension of time within which to bring an application for constitutional writs: for a writ of certiorari quashing the decision of Logan J given on 5 May 2010 (in [2010] FCA 462) in proceedings brought by the applicant against the Commonwealth and a writ of mandamus compelling the Federal Court to hear and determine his appeal and his supplementary application and grounds for appeal from the decision of Burnett FM ([2010] FMCA 115) made on 21 June 2010. The focus of the application is on the writ of certiorari. The applicant appreciates that a writ of mandamus would go only if he succeeds in quashing the decision of Logan J.
It is necessary to detail some of the history of the matter.
The applicant is a former member of the Australian Federal Police. He suffered serious head injuries in an incident involving a motor vehicle on 8 October 2005. His employment was terminated by the Australian Federal Police (“the AFP”) in October 2006. The applicant commenced proceedings in the Federal Magistrates Court seeking orders under the Disability Discrimination Act 1992 (Cth) that the AFP pay compensation to him and that he be re‑employed by the AFP on account of the unlawful discrimination arising out of the termination of his employment. Questions surrounding the AFP’s requirement that he return to fulltime work and medical and psychiatric assessments of his capacity to do so featured in the hearing.
The hearing of his application took place between April and June 2009 over a period of a total of seven days. The applicant represented himself throughout that proceeding and in all subsequent proceedings. The Federal Magistrate dismissed the application with costs on 24 February 2010. The applicant sought to appeal that decision. He did not file a notice of appeal within the 21 day limit set by the Federal Court Rules, but he did file an application for further time in which to do so within that period (see Order 52 rule 15(1)(b) of the Federal Court Rules). As a consequence he did not have to establish special reasons for an extension of time.
Logan J, who heard the application on 5 May 2010, held that the explanation offered by the applicant and the lack of prejudice to the Commonwealth would have been sufficient to warrant an extension had the proposed grounds of appeal had reasonable prospects of success. His Honour held that they did not.
The applicant did not have a right of appeal to a Full Court of the Federal Court from his Honour’s decisions. That was because, in deciding an application to extend time within which to institute an appeal brought under section 25(2)(b) of the Federal Court of Australia Act 1976 (Cth), Logan J was exercising the appellate jurisdiction of that court (see Thomas Borthwick & Sons v Trade Practices Commission (1988) 18 FCR 424 at 431). The applicant unsuccessfully sought to bring an appeal in the Federal Court. Further, the applicant did not have a right of appeal to this Court given the provisions of section 33(4B) of the Federal Court of Australia Act. However, that provision does not prevent the issue of writs by this Court under section 75(v) of the Constitution and it is that provision upon which the applicant relies.
Rule 25.06.1 of the High Court Rules 2004 requires that an application for a writ of certiorari be brought not later than six months after the date of the judgment or order in question. Rule 25.07.2 requires an application respecting a writ of mandamus to be made within two months of the date of the refusal to hear a matter. The applicant’s application for an order to show cause was not filed until 16 September 2011 and was therefore outside the time permitted by either rule, but rule 25.07.2 allows an application to be made within such time as is allowed by the Court or a Justice “under special circumstances”. Rule 4.02 more generally provides that the time fixed by the Rules may be enlarged by order.
I should add that there was some debate during the hearing about whether or not the time to which rule 25.06.1 refers could be taken to run from the institution of a proceeding and might then refer to the decision of the registrar not to accept the documentation respecting an appeal. However, it does not seem to me that much turns upon the view one takes of this matter. As I have said, this Court has power to extend time within which an application may be brought and, as I shall observe, the Commonwealth does not take a point about the length of any delay.
In his application for the extension of time, the applicant points to the disabilities from which he suffers. He has provided medical reports for the purposes of these proceeding which point to the effects of his head injury, a diagnosis of chronic adjustment disorder with anxious and depressed mood and a possible personality disorder. The applicant’s clinical psychologist advises that his ability to concentrate and focus has been significantly impaired during the course of the court proceedings and, in particular, during these proceedings.
Much of the delay in filing his application was taken up with the applicant’s attempts to pursue an appeal in the Federal Court from 26 May 2010. The decision refusing his application for review of the registrar’s decision refusing to accept his appeal documents was given by Reeves J on 21 December 2010. The applicant says that his Honour advised him during the course of the hearing that a more appropriate course of action would be to seek certiorari from the High Court. His Honour’s reasons indicate the possibility of approaching this Court, given that appeal rights in the Federal Court were denied the applicant.
After that time the applicant set about researching proceedings in this Court, although he has no legal training and is of limited means. He says himself that during this period he found it difficult to concentrate and would often become upset and then physically ill as a result. He attempted to lodge an application on five occasions between June 2011 and September 2011. The unsuccessful attempts resulted from his unintentional non‑compliance with the Rules.
There is no reason to doubt that the applicant made the Commonwealth aware of his intention to pursue an appeal from the Federal Magistrate’s decision, including the appeal from the decision refusing leave to appeal from it. I do not understand the Commonwealth to suggest to the contrary. It does not contend that it is prejudiced in any significant way as a result. The focus of its argument against leave to appeal concerns the applicant’s prospects of success of obtaining a writ of certiorari.
There is no doubt that the prospects of an applicant succeeding on an appeal are relevant to an application for extension of time in this Court and, as McHugh J said in Re Commonwealth of Australia; Ex parte Marks (2000) 75 ALJR 470, a similar inquiry must be made when the application is for an extension of time in which to commence section 75(v) proceedings.
The applicant’s complaint is that he was denied procedural fairness in the orders made by Logan J preliminary to the hearing of the application for extension of time on 5 May 2010. The applicant argues that he was denied a reasonable opportunity to access and examine the transcript of proceedings before Burnett FM before he was required to prepare his grounds of appeal.
As earlier mentioned, the applicant did not file an appeal from the decision of Burnett FM within time. He filed an application the day before seeking further time and, most relevantly for present purposes, seeking an order that he be supplied with the transcript of the proceedings in electronic or printed form.
The matter came before Logan J on 23 April 2010. His Honour declined to make the orders sought with respect to provision of the transcript, on the basis of difficulties he apprehended with copyright in the transcript. The correctness of this basis for refusal may be put to one side for the question now is whether procedural fairness was afforded to the applicant in the arrangements that were made.
After some discussion his Honour gave directions permitting the applicant access to a copy of the court transcript at the registry of the court in Brisbane during business hours on 27, 28, 29 and 30 April 2010. His Honour intimated that the registry might extend those hours upon request. His Honour then gave directions, inter alia, for the applicant to identify a list of transcript pages, said by him to be relevant, to file a draft notice of appeal and outline of argument and for the Commonwealth to prepare a court book containing the transcript extracts. The matter was then set down for hearing on 5 May 2010.
On 29 April 2010, the applicant emailed a letter addressed to his Honour in which he sought an extension of time to file the draft notice of appeal and supplementary outline to Tuesday, 4 May 2010. He expressed confidence that his task of compiling the relevant transcript references would be completed the next day. The registrar advised the applicant the following day that his Honour had granted the extension as requested. His Honour also vacated the order requiring the Commonwealth to prepare a court book with the transcript references some days prior to the hearing. The Commonwealth did, in fact, prepare such a book, although the applicant says it was not made available to him until during the day of the hearing.
On 4 May 2010, the applicant filed a draft notice of appeal which set out five grounds. In his supplementary outline of argument a further two grounds were identified. The matter proceeded to hearing with no further complaint from the applicant about his preparation. Logan J considered each of the seven grounds of appeal in some detail and concluded that none had reasonable prospects of success.
The applicant said in an earlier outline of submissions filed on 16 September 2011 that he had believed that when Logan J gave his reasons on 5 May 2010, following an adjournment of the hearing, that he was being given a further 21 days to file additional grounds of appeal. He attempted to do so but his document was, understandably, rejected by the registry. There does not seem to be any basis for the applicant’s belief in what was said by Logan J in his reasons, but if the applicant did believe that this was the case, it would only support an explanation for delay. It would not provide an answer to the problem that his application has insufficient prospects of success.
The facts outlined do not provide a basis for a finding of want of procedural fairness. The applicant, however, says that he was denied procedural fairness because he was not able to prepare proper grounds of appeal in the time limited, even with the extension granted. He says that no account was taken of his condition or of his status as an unrepresented person when Logan J set such a limited period for his review of the transcript. He says that he felt under pressure to meet the time limit set and that his Honour had indicated that the matter should be heard promptly. He did not, therefore, consider that he was in a position to ask for further time.
It would, of course, have been obvious to his Honour that the applicant was unrepresented. His Honour would also have been aware that the applicant had suffered a head injury in the past and that several psychiatric and psychological assessments had been made of his condition for the purpose of the proceedings in the Federal Magistrates Court. However, there was no medical material before his Honour to indicate that the applicant was having particular difficulties coping with these tasks in preparing for the hearing of the application. The only indication was the applicant’s request for more time, which the applicant obviously considered he was able and entitled to make to the court. In that communication the applicant assured his Honour that he could complete his task within the short extended period he requested and his Honour acceded to that request.
The transcript of the hearing before his Honour, which took some hours, does not indicate that the applicant was having difficulty in addressing his grounds of appeal. At least, that is not how it is likely to have appeared to his Honour. Those grounds of appeal, it should be noted, dealt with considerations affecting a medical report used in the proceedings in the Federal Magistrates Court which the applicant challenged. The applicant did not indicate to his Honour that he was labouring under any difficulty, that he was not satisfied with the grounds that he had been able to draft, or that he was unable to articulate his arguments.
His Honour is likely to have been left with the impression that the applicant was conversant with the evidence which had been before Burnett FM and that he was addressing the grounds which he wished to present. I have no doubt that the applicant felt anxious and under pressure at the hearing and in the period leading up to it. This is common enough in self‑represented litigants. It is possible that the applicant was feeling much worse and that he did not feel properly prepared as a result, but there is no objective evidence from which it can be concluded that his Honour could have been aware of this.
Questions of procedural fairness cannot be determined by reference to matters which could not reasonably be apparent to the judge conducting the hearing. In the absence of some such awareness, there can be no finding of unfairness. The law cannot accommodate some more stringent requirement and, at the same time, maintain the finality of its proceedings.
The applicant’s argument is ultimately reduced to a contention that four days must be regarded as insufficient for him to review the transcript. Such a conclusion does not follow from the fact of the applicant’s status as a litigant in person. He may be taken to have had a deal of familiarity with the evidence at the hearing. It is not possible to determine on an application such as this the degree of difficulty the applicant was under at the time he prepared his grounds of appeal. But in any event there was nothing to indicate to Logan J that the applicant was labouring under such difficulty that he was unable properly to present his case. The application will be dismissed.
Are there any other orders sought?
MR HINSON: Your Honour, I ask for costs. Your Honour has reserved the costs of the last occasion until today and so I would ask for the costs of the application to include those reserved costs.
HER HONOUR: You are no doubt familiar with the usual rule that costs follow the event, in the event of success or lack of success?
PEGG: Yes, indeed.
HER HONOUR: Yes. I am obliged to order that the applicant pay the Commonwealth’s costs, including reserved costs.
The Court will now adjourn.
AT 2.33 PM THE MATTER WAS CONCLUDED
0
4
0