Perry v Howard - [2005] FCA 1702

FEDERAL COURT OF AUSTRALIA
Perry v Howard [2005] FCA 1702
PRACTICE AND PROCEDURE – summary dismissal of application ‑ no reasonable cause of action – frivolous or vexatious
Human Rights and Equal Opportunity Commission Act 1986 (Cth), ss 20, 20(2)(a), 20(2)(c)(ii), 46PO, 46PE, 46PH
Judiciary Act 1903 (Cth), s 39B
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Racial Discrimination Act 1975 (Cth)
Foreign States Immunities Act 1985 (Cth), s 9
Federal Court Rules, O 8, O 20 r 2(1)
Dey v Victorian Railways Commissioners (1949) 78 CLR 62 cited
Pridmore v Magenta Nominees Pty Ltd (1999) 161 ALR 458 cited
McKellar v Container Terminal Management Services Ltd (1999) 165 ALR 409 cited
Munnings v Australian Government Solicitor (1994) 120 ALR 586 cited
Munnings v Australian Government Solicitor (1994) 118 ALR 385 cited
Re East, Ex parte Nguyen (1998) 196 CLR 354 cited
JOHN PERRY v JOHN HOWARD and GOVERNMENT OF AUSTRALIA and GOVERNMENT OF BRITAIN and GOVERNMENT OF IRELAND
WAD 85 OF 2005
SIOPIS J
24 NOVEMBER 2005
PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAD 85 OF 2005

BETWEEN:

JOHN PERRY
APPLICANT

AND:

JOHN HOWARD
FIRST RESPONDENT

GOVERNMENT OF AUSTRALIA
SECOND RESPONDENT

GOVERNMENT OF BRITAIN
THIRD RESPONDENT

GOVERNMENT OF IRELAND
FOURTH RESPONDENT

JUDGE:

SIOPIS J

DATE OF ORDER:

24 NOVEMBER 2005

WHERE MADE:

PERTH

THE COURT ORDERS THAT:
1The applicant’s amended application and statement of claim filed on 17 October 2005 is struck out.
2The applicant’s application filed on 13 April 2005 and subsequently amended is dismissed.
3The applicant’s notice of motion filed 12 May 2005 is dismissed.

4 The applicant is to pay the first and second respondents’ costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAD 85 OF 2005

BETWEEN:

JOHN PERRY
APPLICANT

AND:

JOHN HOWARD
FIRST RESPONDENT

GOVERNMENT OF AUSTRALIA
SECOND RESPONDENT

GOVERNMENT OF BRITAIN
THIRD RESPONDENT

GOVERNMENT OF IRELAND
FOURTH RESPONDENT

JUDGE:

SIOPIS J

DATE:

24 NOVEMBER 2005

PLACE:

PERTH

REASONS FOR JUDGMENT

This is an application by the first and second respondents for the dismissal of the applicant’s application. The applicant’s application was filed on 13 April 2005, and an amended application dated 14 October 2005 was filed on 17 October 2005. The amended application was accompanied by a statement of claim dated 14 October 2005.
The first and second respondents’ notice of motion dated 28 April 2005 is brought under O 20 r 2(1) of the Federal Court Rules. The first and second respondents claim that the application should be dismissed on the grounds that the proceeding does not disclose a reasonable cause of action, is frivolous or vexatious and is an abuse of the process of the Court.
There is also before the Court a notice of motion by the applicant filed on 12 May 2005 which I have treated as a motion for leave to serve his application on the third and fourth respondents out of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] FCA 1702
Decision Date: 24 NOVEMBER 2005

CaseChat Overview and Summary

The case of Perry v Howard involves the applicant, Mr. Perry, seeking legal action against several respondents, including the Commonwealth of Australia. Mr. Perry filed multiple claims, both in the European Court of Human Rights and before the Federal Court of Australia, alleging a series of grievances including fraud, conspiracy, and a violation of human rights by the Irish government, as well as failures by the Australian government in providing consular assistance and handling his complaints. The case before the court also involves an application for leave to serve the respondents outside the jurisdiction.

The primary legal issues the court needed to address were whether the Federal Court had jurisdiction to hear Mr. Perry's claims and whether there were grounds to grant leave for service of the application out of the jurisdiction. Additionally, the court considered whether the claims were substantiated and whether the court had the authority to hear them under the relevant legislation.

In dismissing Mr. Perry’s application, the court found that it did not have jurisdiction to hear his claims. The court concluded that the claims were essentially about the denial of justice in Ireland and the alleged failures of the Australian government, which fell outside the scope of the Federal Court's jurisdiction. Furthermore, the court held that Mr. Perry’s claims were not supported by the evidence and did not meet the necessary legal criteria. Consequently, the court dismissed the application and struck out the amended application and statement of claim. It also dismissed the motion for leave to serve the application out of the jurisdiction. The court ordered Mr. Perry to pay the costs of the first and second respondents.

In summary, the court ruled that it lacked the jurisdiction to entertain Mr. Perry’s claims and dismissed all applications, including the motion for leave to serve the application out of the jurisdiction. The court further ordered that Mr. Perry bear the costs of the proceedings.

Orders

Orders of the court

1 The applicant’s amended application and statement of claim filed on 17 October 2005 is struck out.

2 The applicant’s application filed on 13 April 2005 and subsequently amended is dismissed.

3 The applicant’s notice of motion filed 12 May 2005 is dismissed.

4 The applicant is to pay the first and second respondents’ costs.

Background

Background to the litigation

There is also before the Court a notice of motion by the applicant filed on 12 May 2005 which I have treated as a motion for leave to serve his application on the third and fourth respondents out of the jurisdiction pursuant to O 8 of the Federal Court Rules.Background The applicant filed an affidavit dated 4 May 2005 and a number of documents in support of his motion to serve out of the jurisdiction. From the documents and the applicant’s submissions the following background information emerges. In 2002, the applicant commenced two claims in the European Court of Human Rights. One of these claims is against the Republic of Ireland only and the second claim is against both the Republic of Ireland and Great Britain. In his claim against the Republic of Ireland, the applicant claimed compensation in a sum in excess of IR£59 million. The claim is based on allegations that properties comprising a commercial property development at a location known as Boyne Court in Ireland that were owned by the applicant and his family were lost to his family by reason of the fraudulent conduct, conspiracies and unconscionable dealings of the Irish government. The applicant claims the fraud and conspiracy is compounding. In his claim against both Great Britain and the Republic of Ireland the applicant claimed the sum of IR£12 million. This claim is based on allegations that the applicant’s father Mr James Perry was arrested in 1957 by the Irish government and detained in the Curragh concentration camp in Ireland for some 2½ years without having been charged with any offence or tried by any court. The applicant claims that he and his siblings suffered discrimination and distress and a violation of human rights by these actions. He claims that the British government shares responsibility for the deprivations which were suffered by his family. The documents before this Court also show that the applicant believes that certain documents which were addressed to ‘Interpol’ and which related to the matters the subject of his claims in the European Court of Human rights were ‘hijacked’ by the Australian Federal Police. The applicant also believes that the Commonwealth failed in 1997 to give consular assistance to members of his family, including his wife and children, who the applicant says were Australian citizens and who were stranded in Ireland and in distress in relation to the loss of the Boyne Court properties. Further, the applicant believes that his complaints about the alleged ‘hijacking’ of documents and failure to accord consular assistance were not dealt with to his satisfaction by the first respondent, other Commonwealth ministers and Commonwealth agencies and that all of this is part of a continuing pattern of discriminatory and conspiratorial behaviour by the first respondent, Commonwealth ministers and Commonwealth agencies directed towards him because of his Irish background and his Republican beliefs. In 2004, the applicant lodged a complaint at the Human Rights and Equal Opportunity Commission (‘the Commission’) under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (‘the HREOC Act’). The applicant’s letters comprising the complaint are not before the Court.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

SIOPIS J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: SIOPIS J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 85 OF 2005

BETWEEN:	JOHN PERRY APPLICANT
AND:	JOHN HOWARD FIRST RESPONDENT GOVERNMENT OF AUSTRALIA SECOND RESPONDENT GOVERNMENT OF BRITAIN THIRD RESPONDENT GOVERNMENT OF IRELAND FOURTH RESPONDENT
JUDGE:	SIOPIS J
DATE OF ORDER:	24 NOVEMBER 2005
WHERE MADE:	PERTH

JUDGE:	SIOPIS J
DATE:	24 NOVEMBER 2005
PLACE:	PERTH