Pham v French & Ors

[2008] HCATrans 3

[2008] HCATrans 003

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M142 of 2007

B e t w e e n -

CHARLES PHAM

Plaintiff

and

THE HON ROBERT SHENTON FRENCH JUDGE FEDERAL COURT OF AUSTRALIA, THE HON KEVIN EDMUND LINDGREN JUDGE FEDERAL COURT OF AUSTRALIA, THE HON PETER MICHAEL JACOBSON JUDGE FEDERAL COURT OF AUSTRALIA, THE HON ANTHONY MAX NORTH JUDGE FEDERAL COURT OF AUSTRALIA, VICTORIAN DISTRICT REGISTRAR (FEDERAL COURT AUSTRALIA) AND VICTORIAN DISTRICT REGISTRAR (HIGH COURT AUSTRALIA)

Defendants

Application for order to show cause

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 24 JANUARY 2008, AT 11.05 AM

Copyright in the High Court of Australia

MR C. PHAM appeared in person.

HIS HONOUR:   Yes, Mr Pham.  Would you come forward please?  Do come forward, please, Mr Pham.  I know people are moving their papers and that will take a moment, but just perhaps if you have a seat at the Bar Table for a moment, will you please, Mr Pham?  Now, there are submitting appearances on behalf of the first to fifth defendants and there is no appearance by the sixth defendant.  Now, Mr Pham, would you be good enough to come to the central microphone.  It just helps with the transcription of the transcript of proceedings.  Now, Mr Pham, let me just understand what I have to deal with.  You have filed an application for an order to show cause.  Is that right?

MR PHAM:   That is correct, your Honour.

HIS HONOUR:   That was filed initially on 30 November and you now seek to amend the application for an order to show cause in accordance with the document of 10 December. is that right?

MR PHAM:   In effect, it is just an amendment, your Honour – I mean, supplementary additional defendants.

HIS HONOUR:   Yes, I understand that, but you want to amend that.  You have your affidavit firstly of 30 November, then your affidavit of 10 December, is that right?  So there are two affidavits I should be aware of?

MR PHAM:   I believe so, your Honour.

HIS HONOUR:   Yes, only the two.  The question then becomes what I should do about the further conduct of the proceedings, is that right?

MR PHAM:   I believe that is correct.  I would just like to query about the 14 days statutory limitation on filing appearances.  I have not received it and the ‑ ‑ ‑

HIS HONOUR:   Submitting appearances were filed on 18 January.  What is that?  Six days ago.  Those were filed on behalf of defendants one, two, three, four and five.  What is the immediate query you have?

MR PHAM:   I am assuming the statutory limitation begins once the notice has been received.

HIS HONOUR:   Yes.

MR PHAM:    So that would run out after the 14th.

HIS HONOUR:   They may have filed out of time, but I am not sure whether they have.  But assume they have filed out of time, do you say something follows about that?

MR PHAM:   I would assume so.  I am just wondering if the Court would allow it without reasonable reasons to have the appearance ‑ ‑ ‑

HIS HONOUR:   The basic rule is that unless a party appears, the plaintiff can get on and do what he or she can without notice to the opposite party.  Now, I do not think anything now turns on the fact that they may have appeared late.  Unless you can point me to something that you say does matter about that, I do not think anything matters about that.  I think the more important thing we have to look at this morning is, looking at your amended application or the proposed supplementary application for an order to show cause, so the one that you want to change, what I need to understand is whether I should permit that claim to go forward.

MR PHAM:   Before you begin that, your Honour, important with the statutory limitation goes back to whether I proceed in lower courts so an indication of the statutory limitation would be important from this Court whether a leave to appeal in the lower courts would be validated or granted or otherwise.

HIS HONOUR:   The central question I have to decide today is whether your proceedings against various judges and others should go forward for further argument.

MR PHAM:   My submission is that 14 days limitation may not grant the defendants to reply to the notices in front of the Court today.

HIS HONOUR:   Let us assume you are right that they have failed to appear within time, let us make that assumption.  I do not know whether the assumption is right or wrong, but let us assume it.  Nothing, I think, matters as a result.  It would still be a question for me whether your case should go on.  Even if the defendants do nothing, it is still up to me to decide whether your case goes on.

MR PHAM:   Yes, I accept that, your Honour. 

HIS HONOUR:   Now, that is the question I think I need to understand.  Why should your case go on?  Can I tell you some difficulties I have about it so that you may have a chance to deal with them.

MR PHAM:   Sure.

HIS HONOUR:   If you have hold of your amended application for an order to show cause, the one you called supplementary.  Have you got that document in front of you?

MR PHAM:   I can remember it, your Honour.

HIS HONOUR:   Okay.  As long as we know what we are talking about.

MR PHAM:   Yes.

HIS HONOUR:   You claim various forms of relief including, amongst other things, setting aside some decisions in the AAT and some decisions in the Federal Court, is that right?

MR PHAM:   That is correct, your Honour.  That is on the understanding that there was a, I guess a peremptory stay of proceedings with a challenge of jurisdiction of the court to proceed with those proceedings.

HIS HONOUR:   Now, it seemed to me – correct me if I am wrong – that an important step in understanding your complaint is to look at the decision of the Full Court of the Federal Court which I think you have filed in your documents, have you not?

MR PHAM:   Yes, I believe I have.  I think the important thing in this case is the notices of the constitutional matter, your Honour, rather than the decision of the Full Federal Court itself.  It comes into it in terms of due process of the Bench.

HIS HONOUR:   Yes.  On 22 November the Full Court of the Federal Court, Justices French, Lindgren and Jacobson, made orders refusing you leave to appeal and dismissing an appeal as incompetent, is that right?

MR PHAM:   That is correct, your Honour.

HIS HONOUR:   The decision that you wanted to challenge was a decision of Justice North, is that right?

MR PHAM:   In this Court?

HIS HONOUR:   No, the decision that you wanted to challenge in the Full Court of the Federal Court was the judgment of Justice North and they said, “No, you cannot have leave to appeal and your appeal is incompetent”, is that right?

MR PHAM:   That is correct.

HIS HONOUR:   What Justice North had dealt with was your appeal form a decision of the AAT, is that right?

MR PHAM:   That is correct, and it goes down to the Social Security Appeals Tribunal.

HIS HONOUR:   Yes.  Now, those are the various decisions, are they, which you refer to in paragraph 11 of your amended application for orders to show cause?

MR PHAM:   That is correct.  It is like a pyramid because the six defendants have not appeared or have refused to ‑ ‑ ‑

HIS HONOUR:   Appeared later or whatever, yes.

MR PHAM:    ‑ ‑ ‑ come to argue the case, then I think the whole house is basically collapsing.  It is an appellate jurisdiction that has been put forward through the AAT, Federal Court and Full Bench.  So without their presence, I would think that the case is pretty strong.

HIS HONOUR:   You seek to say, do you, that the way in which your case was dealt with in the AAT, and later, constitutes conduct contrary to the Racial Discrimination Convention, is that right?

MR PHAM:   I would argue first that it will be conspiracy to pervert justice, your Honour.

HIS HONOUR:   Yes.

MR PHAM:   Obviously it brings in various laws, the law of natural justice even, and, importantly, some constitutional matters that have been presented to this Court.

HIS HONOUR:   Yes.  Why is the claim that you make now against the decisions of the AAT, a single judge of the Federal Court and the Full Court of the Federal Court not a claim that is to be dealt with, if at all, through the ordinary processes of appeal rather than application for order to show cause?  That is the central question you have to address.

MR PHAM:   It has been put through the Federal Court and the Full Bench and whatever arguments presented, the Full Bench refused to listen to it and I believe they were out of their jurisdiction to ask for leave to appeal.  They have not answered that question and it is being put before this Court, the jurisdiction of the Full Bench.

HIS HONOUR: Yes. The accepted doctrine in this Court is that orders of the kind that you seek should ordinarily not be granted where processes of appeal could be but have not been engaged and it would follow that if you are dissatisfied with the decision of the Full Court of the Federal Court, you can apply for special leave to appeal to this Court and it is that path which is the only path to the correction of what you say is error in the Full Court of the Federal Court, not relief under section 75(v) of the Constitution. That is the problem that confronts you. Now is your chance, I am afraid, to answer it.

MR PHAM:   There are two pathways I have decided to go with; to ask for a writ of mandamus and prohibition.  I have decided to go that way because I guess – I am seeking the mandamus against officers of the Commonwealth and it affects a lot of strain and it is an issue which should be heard in the High Court as a matter or urgency, I would argue.  There seems to be a lot of confusion in the community regarding certain laws regarding human rights and discrimination, so I seek to have it heard in the High Court. 

HIS HONOUR:   The Racial Discrimination Act makes quite plain that racial discrimination is unlawful.

MR PHAM:   That is correct.  I am looking to have the High Court restate that.  It has been dispensed with in due process through various Commonwealth bodies all the way up to the Full Bench and I am looking to have it reaffirmed.

HIS HONOUR:   Yes.  Is there anything else you wish to say?

MR PHAM:   The issue seems to be the concern of this Court regarding the amended ‑ ‑ ‑

HIS HONOUR:   No, the point is one which applies to both the original and the amended form, Mr Pham.  I am making an assumption in your favour that you would have the amendment you seek.  So the point is not one confined to the amended form.

MR PHAM:   Then perhaps if the Court would reveal to me what the concern is.

HIS HONOUR:   The concern I have is this.  The accepted doctrine of this Court, now well-established, is that relief of the kind you seek should not be granted if it is, to use the phrase again:

where processes of appeal, ultimately to this Court, could be, but have not been, engaged by a party to the proceeding to correct the alleged error.

The passage I am quoting from, I regret to say, is my own judgment in Re McBain; Ex Parte Catholic Bishops Conference 209 CLR 372 at 471, paragraph 280, but there is a stream of authority which goes back into the late 1970s.

MR PHAM:   I do not see where an appeal from – as I said, it has been running through the legal process for almost three years now and basically it needs to be expedited, I guess, and the option I decided that it would be more in the public interest to proceed in this pathway.

HIS HONOUR:   Yes, thank you, Mr Pham.

On 30 November 2007, Charles Pham filed an application for an order to show cause and directed in terms to named judges of the Federal Court of Australia, the Victorian District Registrar Federal Court of Australia and the Victorian District Registrar High Court of Australia.  The relief claimed was extensive.  The grounds on which that relief was claimed were also described in extended terms and, in addition, reference was made under the heading of facts to a number of matters said to go in aid of the claim for relief. 

At the heart of the matter which Mr Pham would seek to agitate in this Court is what is now a long‑running dispute concerning Mr Pham’s entitlement to certain benefits by way of Newstart allowance.  Payment to Mr Pham of a Newstart allowance was suspended on 16 June 2006.  The suspension of that payment was affirmed by a decision of an authorised review officer of the Department of Employment and Workplace Relations on 22 June 2006 and on 12 January 2007, the Administrative Appeals Tribunal affirmed the decision suspending the payment.  Mr Pham was also said to have appealed unsuccessfully to the Social Security Appeals Tribunal. 

On 4 June 2007, Justice North of the Federal Court of Australia dismissed an appeal by Mr Pham from the decision of the Administrative Appeals Tribunal.  His Honour dismissed the appeal on a motion from the Secretary to the Department of Employment and Workplace Relations brought under Order 53, rule 20(1)(a) of the Federal Court Rules and his Honour held that an appeal had no reasonable prospect of success.

Mr Pham sought to challenge the decision reached by Justice North in the Full Court of the Federal Court of Australia, but on 22 November 2007 that court, Justices French, Lindgren and Jacobson, determined that Mr Pham should not have leave to appeal from the decision of Justice North, which was held to be interlocutory, and that the appeal that Mr Pham had in fact instituted should be dismissed as incompetent. 

Mr Pham is of the view that the decisions which have been made at the various levels described are decisions which have been made in violation of his human rights and in consequence of unlawful racial discrimination.  His complaints of discrimination, therefore, lie at the centre of the grounds which he would seek to agitate in this Court. 

The first five defendants named in the application for an order to show cause have now filed submitting appearances.  Mr Pham would say that those appearances were filed outside the time fixed by the rules and that the failure to appear within time provides weight to the case that he would seek to make in this Court.  It is not necessary, however, to examine what, if any, support for Mr Pham’s claims might flow from a failure to appear within the time fixed when, as is the case here, the appearance ultimately filed is one which submits to any order that the Court may make save as to costs.

In December 2007, Mr Pham filed an amended version of his application for an order to show cause which supplemented and amplified in various respects, the detail of which it is not necessary to notice, the application as it had been framed initially.  As amended, the central core of Mr Pham’s complaint is a complaint about racial discrimination and violation of human rights and by his amended application he would seek to add the Human Rights and Equal Opportunities Commission as a respondent to the present proceeding.

The decisions which Mr Pham seeks to challenge in this Court and have quashed by certiorari or whose implementation he would seek to have prohibited, include the orders of the Full Court of the Federal Court of Australia.  Those orders, as well also as the orders of Justice North made in relation to Mr Pham’s appeal against the decision of the Administrative Appeals Tribunal, are decisions of a kind which, even if amenable to relief of the kind which Mr Pham would seek by these proceedings, are not decisions of a kind in which there is any reasonable prospect of grant of relief of the kind which he would seek. 

The controversy which he sought to agitate in the Federal Court of Australia was directed to whether any error of law had been made by the Administrative Appeals Tribunal.  That controversy has been quelled by the orders, first, of Justice North and, subsequently, the orders of the Full Court of the Federal Court.  Subject to any application for special leave to appeal to this Court, the matter is concluded. 

Events having taken the course they have, certiorari would not now go to quash the decision of the Full Court of the Federal Court of Australia and, of course, would not go to quash the decision of Justice North because, as has now long been established by the decisions of this Court, certiorari will be denied to a person who could but has not engaged processes of appeal to correct errors of the kind which that party alleges.  See R v Federal Court of Australia; Ex Parte Pilkington ACI(Operations) Pty Ltd (1978) 142 CLR 113 at 127, per Justice Mason; R v Federal Court of Australia; Ex Parte Western Australia National Football League (1979) 143 CLR 190 at 225 to 226, per Justice Mason; R and Gray; Ex Parte Marsh (1985) 157 CLR 351 at 375 to 376, per Justice Mason; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 654 to 655, paragraph 139, per Justice Gummow; Re McBain; Ex Parte Catholic Bishops Conference (2002) 209 CLR 372 at 471 to 472, paragraphs 279 to 280.

Because the claims which Mr Pham makes are all ultimately dependent upon the challenge he would seek to make to the orders made in the Federal Court of Australia, it would not be right now to permit the application for an order to show cause to go forward for further argument.  I recognise, of course, that Mr Pham has joined and would seek to join parties other than those whose decisions constitute the curial decisions I have mentioned.  Nonetheless, because of the inextricable intertwining of the issues which he would seek to agitate against parties other than the courts whose decisions he would seek to challenge with the decisions of those courts, it follows that the proceeding as a whole is one which, in my opinion, must stand dismissed. 

The order is application dismissed.  There being no appearance by any other party, no question of costs emerges.

MR PHAM:   Your Honour.

HIS HONOUR:   Yes, Mr Pham.

MR PHAM:   I am seeking costs.

HIS HONOUR:   Yes, on what basis?

MR PHAM:   On the High Court fees regulations, number 8(2).  That is application fees be waived.

HIS HONOUR:   Yes.  Those are matters which I think are dealt with at the point of filing, Mr Pham, and it is not a matter with which I would deal.  Either you can file without fee or you cannot.  If you have not been permitted to file without fee, I will not now deal with an application to waive a fee that has already been paid.

MR PHAM:   I believe there is some rules for reimbursement of those fees in the event that ‑ ‑ ‑ 

HIS HONOUR:   I am not conscious of those, Mr Pham.  Perhaps if you can point them out to me, but I am not conscious of those rules.

MR PHAM:   There is an affidavit, I believe.  There should be three affidavits regarding the conduct of one of the Deputy Registrars.

HIS HONOUR:   I understand that you complain about that conduct.  Be it so, why should I make an order against parties that they bear the costs of a proceeding which I consider should be dismissed?

MR PHAM:   On the basis of hardship for one thing and the other reason is his Honour decides that it should go to another stream of appeal and I would like an order for that process to proceed.

HIS HONOUR:   No, Mr Pham.  You may make whatever other application you wish to make if it is in proper form and that will be a matter for you.  The only order I will make today is application dismissed.  I will not make any order in respect of the costs of the proceedings.  Thank you, Mr Pham.

AT 11.41 AM THE MATTER WAS CONCLUDED