Prosser v Trustees of the Roman Catholic Church for the Diocese of Wagga Wagga

[2014] FCCA 1476

FEDERAL CIRCUIT COURT OF AUSTRALIA

PROSSER v TRUSTEES OF THE ROMAN CATHOLIC CHURCH FOR THE DIOCESE OF WAGGA WAGGA [2014] FCCA 1476

Catchwords:
HUMAN RIGHTS – Claims of disability discrimination – alleged unlawful discrimination.

PRACTICE AND PROCEDURE – Application for summary dismissal pursuant to Rule 13.10 of the Federal Circuit Court Rules 2001 (Cth) – whether no reasonable prospects of success – whether abuse of process – substantive application dismissed.

Legislation:

Australian Human Rights Commission Act 1986 (Cth), ss.46PO, 46PO(3), 48

Disability Discrimination Act 1992, ss.4, 5, 6, 11, 12(a), 15, 21A, 21B, 31, 35, 42, 43, 122, 123, 125, 131

Federal Circuit Court of Australia Act 1999 (Cth), s.17A(2)
Federal Circuit Court Rules 2001 (Cth), rr.1.06, 13.10(a), 13.10(c), 16.01

Oorloff & Anor v Lee & Ors [2004] FMCA 893
Shammas v Canberra Institute of Technology [2014] FCA 71
Singh v Super City Home Loans Pty Ltd [2011] FCA 646
Spencer v The Commonwealth [2010] HCA 28; (2010) 241 CLR 118
Purvis v New South Wales [2003] HCA 62; 217 CLR 92
Dye v Commonwealth Securities Limited (No 2) [2010] FCAFC 118
Haile-Michael v Konstantinidis (No 2) [2012] FCA 167

Applicant: AMANDA GABRIEL PROSSER

Respondent: TRUSTEES OF THE ROMAN CATHOLIC CHURCH FOR THE DIOCESE OF WAGGA WAGGA

File Number: SYG 1089 of 2013

Judgment of: Judge Nicholls

Hearing dates: 20 and 21 March 2014

Date of Last Submission: 21 March 2014

Delivered at: Sydney

Delivered on: 11 July 2014

REPRESENTATION

Applicant: In person

Counsel for the Respondent: Mr D O’Sullivan

Solicitors for the Respondent: The Catholic Commission for Employment Relations

ORDERS

1. The application made on 17 May 2013 is dismissed pursuant to s.17A(2) of the Federal Circuit Court of Australia Act 1999 (Cth) and r.13.10(a) of the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1089 of 2013

AMANDA GABRIEL PROSSER

Applicant

And

TRUSTEES OF THE ROMAN CATHOLIC CHURCH FOR THE DIOCESE OF WAGGA WAGGA

Respondent

REASONS FOR JUDGMENT

1. On 17 May 2013 Miss Amanda Gabriel Prosser (“the applicant”) made an application to this Court alleging discrimination on the part of the Trustees of the Roman Catholic Church for the Diocese of Wagga Wagga (“the respondent”). This was made pursuant to s.46PO Australian Human Rights Commission Act 1986 (Cth) (“the AHRC Act”).

The Substantive Application

1. The applicant sought the following orders:

   “1. Examination in court of all evidence I have collected during 2011, 2012 & 2013.

   2. Restoration of my health, my employment & my reputation.

   3. Compensation for the damage to my health, livelihood & quality of living.”

2. The grounds of the application were stated as follows:

   “No Duty of Care provided to me as a Mandatory Reporter, who obeyed the law & adhered to recognised professional training.”

3. The application noted that the applicant alleged disability discrimination under ss.5, 6, 11, 15, 21A and 21B of the Disability Discrimination Act 1992 (Cth) (“the DDA”). No particulars were provided.

4. Attached to the application was a Notice of Termination of the complaint made pursuant to s.46PH(1)(i) and s.46PH(2) of the AHRC Act signed by a delegate of the President of the AHRC on 10 April 2013. There was no dispute between the parties that this engaged this Court’s jurisdiction pursuant to s.46PO of the AHRC Act.

5. At the first Court date in this matter on 19 June 2013 various orders were made for the conduct of this case. Relevantly, the applicant was required to file and serve a Statement of Claim (“SOC”) and an affidavit setting out all the evidence on which she intended to rely. Reasonable periods were given for the prosecution of these matters, and the applicant complied with both orders within time.

The Respondent’s Application in a Case

1. The respondent replied with an Application in a Case on 20 September 2013, as foreshadowed at the first Court date. The respondent sought summary dismissal of the application citing s.17A(2) of the Federal Circuit Court of Australia Act 1999 (Cth) (“the FCCA Act”), and pursuant to r.13.10(a), or in the alternative r.13.10(c), of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”).

2. Relevantly, s.17A(2) of the FCCA Act is in the following terms:

   “(2)  The Federal Circuit Court of Australia 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. Rules 13.10(a) and (c) of the Rules are in the following terms:

   “13.10  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

   …

   (c) the proceeding or claim for relief is an abuse of the process of the Court.”

The Hearing

1. At the hearing of the Application in a Case, Mr D O’Sullivan of counsel appeared for the respondent. The applicant appeared in person. The respondent provided an outline of written submissions in explanation of the case pressed in the Application in a Case.

2. Also before the Court was the “affidavit” made by the applicant on 9 October 2013 attaching a number of documents and resubmitting her SOC (“the applicant’s affidavit”).

The Applicant’s Complaint

1. The applicant’s complaint to the AHRC is before the Court as attachment “B” to her application. The complaint is in long narrative form which consists of factual assertions of claimed events during the time of her employment by the Catholic Schools Office Wagga Wagga (“the CSO”) as a “Creative Arts Assistance” at the St Francis de Sales High School Leeton (“the school”).

2. The complaint also contains a number of conclusions which the applicant drew from these events. Further, there are references to her having been imputed with a disability by the CSO and the school, “psychological abuse” to the applicant by the respondent and various observations about the process concerning an interview for an employment position.

3. Most relevant to the applicant’s explanation of her substantive application now before the Court, the complaint contained references to what was described as her being a “Mandatory Reporter” who made a “Mandatory Report” about child abuse said to have occurred in and around the school and its community. As explained further below, this emerged as being at the core of the applicant’s complaint as explained by her, both before the AHRC and the Court.

4. At the first Court date in this matter, when given the opportunity to explain her application, the applicant made plain that her concern was the protection of children. She stated that she “had travelled a journey” for some years seeking to bring about changes to mandatory reporting procedures relating to child abuse.

5. The applicant’s grievance about mandatory reporting of child abuse was clear. What was otherwise not clear (and it must be said this was also the case on a fair reading of the written complaint to the AHRC) was the exact nature of the complaint as it related to the DDA, the nature of the disability which the applicant claimed in the complaint to the AHRC was imputed to her, and what the complaint was against the singular respondent in the proceedings. [I note this in relation to the assertion that there was “a list of 58 people who had failed” her.] While the applicant made a number of factual assertions, these lacked cohesion, and relevance in, and to, a legal context and the Court’s jurisdiction in the proceedings.

6. The applicant’s own emphasis on the nature of the proceedings which the applicant sought to prosecute in this Court is also explained in the application to the Court. At “Part B” the application form asks “What discrimination are you complaining of?” The applicant’s answer was essentially to complain about the claimed treatment she received as a “mandatory reporter” while employed by the CSO at the school (see also [3] above).

7. In her submissions before the Court at the hearing of the Application in a Case, the applicant made various references to “professionals” who had “ruined her life”. In context of the material annexed to her affidavit, I understood this to be a reference to psychologists, psychiatrists, and various other persons working at, or in connection with, the school and the CSO.

8. But what was undoubtedly at the centre of her reasons for coming to this Court, as explained in her oral submissions, was her deep concern for the welfare of children, to address the issue of child abuse, and the lack of protection afforded to “mandatory reporters” of child abuse.

9. The applicant explained to the Court that she sought “justice” for “crimes” against children, that children deserved “justice”, and that this was an “integral social issue”. In this, she claimed that the rights of mandatory reporters (including herself) had not been properly or satisfactorily addressed. The applicant, in essence, posed the question as to whether the rights of children or the rights of adults should take precedence. Further, she made clear that she sought to be the “voice” for vulnerable children and that she and “the children” were “one”.

The Respondent’s Position on the Relevant Test

1. The respondent pressed the Application in a Case. It was explained that while the respondent pressed both rr.13.10(a) and (c) of the Rules in the alternative, that the reliance to “abuse” in (c) in their Application in a Case was to argue that it was an “abuse” of the Court’s processes to press a claim that had no reasonable prospects of success. I will return to this, and the consideration of the concept of “no reasonable prospects of success” later in this judgment.

Matters Requiring Explanation

1. It is important to note a number of matters going to the background of the applicant’s application and her “prosecution” of it before the Court.

2. First, in her oral submissions, the applicant presented to the Court as sincere in her conviction, and honest in her expression of her grievance. Noting of course that, as submissions, what she said was not tested in any evidentiary context.

3. Second, the gravamen of the applicant’s complaint is clearly derived from her “accusation” of the occurrence of child abuse in general in society and, in particular, in and around the school community where she had previously worked. This was plain from her SOC and her submissions before the Court.

4. Third, before the Court the applicant emphasised that she lacked legal expertise and legal representation. I should note that the applicant made clear that she had spoken to legal counsel, and a “professor” of law, prior to the hearing who offered their services if she were to be successful in repelling the respondent’s Application in a Case. What was not explained was why they did not assist the applicant, specifically, in relation to the Application in a Case.

5. In any event, what remains is that while some “leeway” may be given to an unrepresented applicant, there are limits that stop short of the Court making out, or “assisting” the applicant to make out her case. In this light, the applicant’s own explanation of her case must be given prominence and is the primary basis against which the respondent’s application for summary dismissal must be assessed.

6. That does not mean, however, that in the current circumstances the Court should not consider independently of the applicant’s submissions whether some arguable case could be raised on the material before the Court that could be said to have some reasonable prospect of success (Oorloff & Anor v Lee & Ors [2004] FMCA 893). This is so as the applicant is without legal representation, albeit having received some legal advice.

7. Fourth, the concept of “no reasonable prospect of success” does not mean that a case must only be hopeless or bound to fail to fall within this concept, although it is certainly included (Shammas v Canberra Institute of Technology [2014] FCA 71 at [50] per Foster J (“Shammas”), with reference to Singh v Super City Home Loans Pty Ltd [2011] FCA 646 (“Singh”) and Spencer v The Commonwealth [2010] HCA 28; (2010) 241 CLR 118 (“Spencer”)).

8. Noting, of course, what His Honour also said in Shammas that the Court should exercise caution in summarily dismissing proceedings. I understand the concept of “no reasonable prospect of success” to require a high degree of certainty that the applicant cannot succeed if the matter were permitted to go to a final hearing (see Spencer per Hayne, Crennan, Kiefel and Bell JJ).

9. Fifth, having regard to all the applicant’s material before the Court a number of different elements emerge. The first of these is the material attached to her affidavit made 9 October 2013 (including articles authored by the applicant – see at page 183) dealing with what is described as “Exopolitical Evidence” (see from page 182 to page 212, including a “DVD-R” disc).

10. This material deals, variously and at length, with the existence of

    
    

    extra-terrestrial life, evidence of such life, “Ufology” (page 185), “UFO’s and Aliens in Art History” (page 189), and the alleged declarations from the Vatican that “Extraterrestrial Contact is Real” (page 204).

11. Some explanation of the background of the application as derived from the SOC and other material attached to the applicant’s affidavit is necessary here.

12. As stated above, the applicant was employed on a permanent part time basis as a Creative Arts Assistant by the Catholic Schools Office Wagga Wagga at the St Francis de Sales High School Leeton (see page 9) (with some break during this period).

13. In January 2011 she made a “mandatory report” about two staff members at the school in relation to allegations of sexual misconduct with students. This was investigated and the CSO responded to her on 29 March 2011 (see page 57 and 71). Essentially the response was that “the investigator was unable to establish where the rumour had generated” (page 71.4).

14. On 7 March 2011 the CSO wrote to the applicant about “concerns regarding alleged inappropriate conduct in [her] role as Creative Arts Assistant” (page 57.2). This was explained as follows (page 57.2):

    “It is alleged that you:

    ·have spoken to others at the school about students being ‘indigo children’;

    ·have said to others at school that would like to talk to these indigo children;

    ·have brought dvd’s to the school about UFO’s and shown these to students; and

    Further, we are aware that you plan to speak at a conference to be held at Campbelltown on 9 March, 2011 about

    ‘What part of the word ‘Paranormal’ should make it into curriculum?’”

    [I understand the reference to “indigo children” to refer to children who were said to have “paranormal abilities”.]

15. The applicant attended a meeting with school representatives on 8 March 2011. A “support person” was present. The applicant claimed to have been “psychologically attacked” at the meeting (see page 56.5). She went on sick leave as a result of stress (see page 23). Various psychological reports were prepared including one from a psychologist nominated by her. She was also interviewed by an “independent investigator” for Workcover. (page 6-9.4) [I note that the applicant made a complaint about the psychiatrist involved in the Workcover process in her SOC, however the applicant did not appear to press this at the hearing beyond mentioning it when reading out her SOC.]

16. By letter dated 21 May 2012, the CSO advised the applicant (page 155):

    “I attach for your information the Supplementary Report provided by Dr George, received at this Office on 1 May, 2012. The CSO has given careful consideration to the information contained in the report.

    Next Steps

    1. You are required to attend six weekly cognitive behaviour therapy sessions with a registered clinical psychologist. The CSO will not pay any costs associated with your cognitive behaviour therapy sessions.

    2. You will arrange for the clinical psychologist to confirm in writing your attendance at the cognitive behaviour sessions, including the dates of all sessions.

    3. On completion of these sessions, you are required to provide a medical certificate from your clinical psychologist, advising that you are fit to return to work.

    4. Once the CSO has received a medical certificate indicating you are fit to return to work, a meeting will be scheduled to discuss your return to work.

    I offer again, the support of the Employee Assistance Program and include a brochure for your information should you wish to access this service…”

17. By letter dated 7 September 2012 the applicant was put on notice by the CSO of its “significant concerns” about statements made by the applicant in a letter of complaint to Bishop Hanna (dated 23 July 2011) which she had sent. The letter explained (page 222):

    “The CSO raised several concerns with you in relation to your correspondence which was sent to Bishop Hanna and received on the 28 July 2011. Your correspondence dated 23 July 2011 (the Complaint) contained numerous statements about staff employed at St Francis de Sales Regional College (College), staff at Leeton High School and people within the Leeton community.”

    The letter went on to detail specific, and serious, allegations about various individuals which the applicant had raised. This included statements of involvement of members of staff and the local community in a “sex club”, that a female cleaner at the school was married to a “convicted paedophile”, and statements that the school’s “culture” operated to “exclude” her. The letter from the CSO asked the applicant to “show cause” why her employment should not be terminated.

18. Following various correspondence from the applicant, the CSO wrote to the applicant on 24 September 2012 giving her notice of the termination of her employment (page 240):

    “As you will recall, this meeting was convened for the purposes of you to show cause why your employment should not be terminated as a result of the CSO forming the view that you are not capable of satisfactorily discharging your duties as Teacher’s Aid and the employment relationship has broken down. You will recall that you were put on notice of this by way of correspondence dated 7 September 2012, which included the basis upon which the CSO had come to that view.

    At the meeting on 20 September 2012, you refused to provide any basis upon which you could discharge your duties as a Teacher’s Aid or otherwise show cause as to why your employment should not be terminated…”

19. Given the sequence of events derived from the applicant’s own evidence before the Court, it is difficult to see why the material relating to extra-terrestrial life and the like was put before the Court in light of the applicant’s own explanation of the key focus in her complaint.

20. In the absence of any evidence or explanation from the applicant, the material about the extra-terrestrial and the paranormal has nothing to do with the termination of her employment. The items set out in the CSO’s letter of 7 September 2012 made no mention of extra-terrestrials or the paranormal. The letter, which is detailed as to the “significant” concerns of the CSO, is focused on statements made by the applicant about staff and students of the school, another school, and the wider community.

21. The material relating to extra-terrestrial life appears to have been provided to the Court to show her interest in such ideas and that this “interest” was “used against her” by the school. However, how this material was linked to the alleged “psychological damage” was not explained and is not apparent on the evidence presented. The “psychological damage”, on the evidence from the applicant, allegedly occurred as a result of the meetings held with the CSO, especially the one on 8 March 2011 and the subsequent conduct of the CSO and the school community following her mandatory reports.

1. The remainder of the material (of some volume) deals variously with the history of her employment and events surrounding the “mandatory reports” and their consequences, and the various reports and surrounding events, concerning the applicant’s workers compensation claim (see for example page 148) and various psychological reports.

Consideration of the Application in a Case

1. Given the wide-ranging and voluminous nature of the material mentioned above, in considering the Application in a Case, attention must be given to the applicant’s SOC, and as she explained it before the Court, to seek to extract a coherent account of the applicant’s claim, as relevant to the DDA.

2. Before the Court the respondent, in support of its Application in a Case drew attention to those parts of the SOC which may be an attempt by the applicant to raise allegations of “discrimination” (see [8] to [9] of the respondent’s written submissions):

   “[8] The Statement of Claim alleges discrimination due to or because of, or for the reason of:

   8.1 ‘intolerance of paedophile activity connected to the school of my employment’ (page 1-9, paragraph 1);

   8.2 ‘not participating in an establish workplace culture’ (page 2 – 9 at paragraph 2);

   8.3 ‘my adherence to my professional training as a New Scheme Secondary English Teacher and also as a Teaching Assistant right to the completion of my Graduate Diploma of Education by the which legally, my reporting of any information that is relevant to child abuse’ (page 2-9 at paragraph 3);

   8.4 ‘not submitting to psychological pressure to retract information contained in a Mandatory Report’ (page 2 – 9 at paragraph 4);

   8.5 ‘as a Mandatory Reporter I adhere to the law in my professional training and have been discriminated against due to my actions’ (page 8 ‑9 at paragraph 3); and

   8.6 ‘my employers had failed to protect my identity as a Mandatory Reporter’ (page 8 – 9 at paragraph 4).

   [9] The Applicant defines the alleged discriminatory acts in the Statement of Claim as:

   9.1 “using my personal interest [as] a psychological weapon” (page 2-9 at paragraph 2);

   9.2 “my identity as a mandatory Reporter not [being] kept confidential and thus contravening current legislation and proceeding to terminate my employment” (page 2-9 at paragraph 5); and

   9.3 “utilising my personal interests as a psychological weapon combined with the fraudulent medical report of one retained psychiatrist” (page 8-9 at paragraph 3).”

3. A number of relevant points emerge from the applicant’s SOC and her submissions before the Court. First, the applicant made plain that her application to the Court did not concern the termination of her employment. For example in her SOC she stated, “[t]his is not a grievance, this is not about my termination”, and further, “[a]s a Mandatory Reporter I adhered to the law and my professional training and have been discriminated against due to my actions” (at page 2-9.2 and page 8-9.4 of the SOC).

4. Second, the complaint was about the treatment she received as a result of her exercising what she saw as her duty to submit a “mandatory report” on matters which she said involved paedophilia. Although, I note that the references to other elements of the personal lives of the school’s staff and the local community go beyond that.

5. The respondent drew the Court’s attention to Purvis v New South Wales [2003] HCA 62; 217 CLR 92 to argue that for there to be some prospect of success in the application it would be necessary to discern some allegation that the applicant was discriminated against “because of” or “by reason of” a disability (see s.15 of the DDA and Purvis at [234] and [236] per Gummow, Hayne and Heydon JJ).

6. I agree with the respondent that, on her own explanation, and consistent with that part of the “relevant” material she has put before the Court the basis of the applicant’s complaint was that she was discriminated against was because she had made “mandatory reports”. On its face this is not a disability for the purposes of the DDA (see s.4 of the DDA for the definition of “disability”).

7. I did consider whether the applicant’s reference in the complaint to the AHRC that she had “been imputed disability since at least 2011 with psychological abuse prior to that” (see page 2 of the complaint attached to the applicant to the Court) could assist the applicant in revealing some prospect of success of her application. This was particularly so as the definition of “disability” at s.4 of the DDA includes:

   “…

   (g) a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour;

   and includes a disability that:

   …

   (k) is imputed to a person.”

8. However, as the SOC makes clear, the applicant’s complaint was not that she was discriminated against because of any imputation of any mental disorder, but that she was discriminated against because of her “Mandatory Report”. The SOC makes plain her claim that she was subjected to “psychological pressure” and that she was discriminated against because she did not submit to this pressure to “retract information contained in a Mandatory Report” (see for example SOC at page 2-9.6). Whatever the various views about the existence of extra-terrestrials, the applicant’s views as expressed in the material she has filed do not reveal a “disorder, illness or disease” for the purposes of s.4(g) of the DDA or the use of imputation of such a “disorder, illness or disease” by the CSO to “discriminate” against her.

9. This explains and is consistent with the subsequent sentences in the applicant’s complaint to the AHRC. After the phrase “imputed disability” the applicant stated the following:

   “…In January 2011 I made a Child Abuse Mandatory Report relative to the school at which I am employed. I made the January 2011 Mandatory Report during the school holidays…”

10. There is a clear distinction between asserting discrimination “because of” or “by reason of” an imputed disability and the claim made by the applicant as it emerged in the complaint to the AHRC and as explained in the SOC. As stated above, that she was discriminated against because of her mandatory reporting and that “psychological pressure” was brought to bear on her to retract her claims.

11. This lack in the applicant’s case is sufficient to find for the respondent in its Application in a Case. The absence of any link to s.4 of the DDA in the applicant’s application leaves it, at least, with no reasonable prospects of success.

12. In these circumstances the applicant’s case is unable to meet the application of the definition of “disability” as that term is used in s.5(1) and s.6(2) of the DDA. Further, I agree with the respondent that on the evidence presented, and the SOC, it is not clear how the applicant could have argued that she was treated less favourably than any other “comparator” as that term is expressed and explained in the relevant test articulated in Purvis (see [223]-[225] per Gummow, Hayne and Heydon JJ).

13. Further, the applicant’s case does not disclose, nor is it possible to identify on the material presented, any reasonable adjustments which the alleged discriminator (the respondent) failed to make or failed to propose to make in relation to the applicant. This leaves her case with no reasonable prospect of success in relation to s.5(2)(a) of the DDA and leaves s.5(2)(b) of the DDA as irrelevant to any consideration in the current circumstance as a result.

14. The applicant’s case similarly has no reasonable prospect of succeeding in relation to s.6 of the DDA. No “indirect discrimination” (as defined in s.6 of the DDA) is apparent in circumstances where the applicant’s complaint does not reveal that the alleged discriminator imposed a requirement or condition upon her such that the applicant was unable to comply with it “because of” her “disability”, in circumstances where another person without the disability could have met the requirement or condition.

15. Section 15 of the DDA deals with discrimination in employment. As set out above the applicant made it clear that her case before the Court did not include the termination of her employment. I note also in this regard that the referral to the AHRC contained no such complaint. The applicant’s reference there to “being denied [her] return to work” (page 3), written after the termination of her employment (10 April 2013 – 24 September 2012 was the last day of her employment- page 240 of her affidavit), could not be properly understood as seeking to challenge the termination of employment itself, with reference to s.15 of the DDA.

16. As such s.46PO(3) of the AHRC Act would operate to preclude the applicant from raising any such argument alleging unlawful discrimination before the Court now.

17. The circumstances are not such as to allow for the interpretation of s.46PO(3) of the AHRC Act, as expressed in such authorities as Dye v Commonwealth Securities Limited (No 2) [2010] FCAFC 118

    
    

    at [46] – [48] per Marshall, Rares and Flick JJ and Haile-Michael v Konstantinidis (No 2) [2012] FCA 167 at [17] per Marshall J, to assist the applicant. Whatever degree of flexibility is allowed for in these authorities, in the absence of “complete symmetry” between the AHRC Act complaint and the application to the Court (here, the SOC), that is not available to the applicant in these proceedings in light of the complaint to the AHRC, in its entirety, and her SOC before the Court.

18. Further, there is nothing in any of the applicant’s material to raise any complaint about terms and conditions of employment in the sense also contemplated by s.15 of the DDA.

19. While s.35 of the DDA deals with harassment in employment, it also provides no assistance to the applicant in these proceedings for the reason set out above in light of the applicant’s explanation of the alleged discrimination (see [49] – [50] above).

20. Before the Court the applicant made a number of references to other sections of the DDA (ss.5, 6, 11, 12(a), 21A, 21B, 31, 35, 42, 43, 122, 123, 125 and 131). It is not necessary to go through each of these in detail for the purposes of this judgment. For example, the power given to the relevant Minister under s.31(1) of the DDA to formulate disability standards cannot assist the applicant in this case, in light of what is set out above.

21. The proscription of “victimisation” and the creation of the relevant offence at s.42(1) of the DDA, requires conduct that falls within s.42(2) of the DDA. None of the allegations made by the applicant fall within the acts set out there.

22. Before the Court, through the material she submitted and her oral submissions, it was clear that the applicant misunderstood the nature of the jurisdiction of this Court and the character of the exercise of its powers.

23. The applicant repeatedly referred to this Court as the “Federal Circuit Court of Human Rights” (see also for example at page 11 of “Annexure 2” of the applicant’s affidavit and the reference there to “Federal Circuit Court of Australia – Court of Human Rights”).

24. It was clear in her submissions that the applicant saw the abuse of children as being a violation of their human rights and the alleged treatment she endured after making the “mandatory reports” as similarly falling within a denial of her own human rights.

25. It is trite to say that this Court does not have some general unfettered authority to address “wrongs” and deliver “justice” to anything that an applicant seeks to describe as a violation of “human rights”. This is not to be taken as a statement as to the lack of seriousness, gravity, or otherwise of the problems of child abuse, and allegations of such conduct.

26. However, this Court can only act within the jurisdiction conferred by the Parliament of Australia. In matters of Human Rights in the General Federal Law jurisdiction of this Court, that jurisdiction arises from the Federal Circuit Court of Australia Act1999 (Cth), the relevant parts of the AHRC Act and each of the specific Acts dealing with some aspects of what are generally described as “human rights”. In the current case that is, on the applicant’s own application and evidence, the DDA.

27. The Court certainly has the jurisdiction under s.46PO of the AHRC Act to hear cases of allegations of unlawful discrimination. But in the current case that consideration must be confined, if not defined, by the matters set out in the DDA. In short, it requires a case to be made out under that Act before the Court can exercise its powers and grant the relief that an applicant seeks.

28. The applicant’s misunderstanding was also revealed by the reliance on rr.1.06 and 16.01 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”). These Rules are in the following terms:

    “1.06 Court may dispense with rules

    (1) The Court may in the interests of justice dispense with compliance, or full compliance, with any of these Rules at any time.

    (2) If, in a proceeding, the Court gives a direction or makes an order that is inconsistent with any of these Rules, the direction or order of the Court prevails in that proceeding.

    …

    16.01 Court may make any judgment or order

    The Court may, at any stage in a proceeding on the application of a party, give any judgment or make any order even if the claim was not made in an originating process.”

29. The Rules of this Court do not, and cannot, confer or extend the jurisdiction of this Court. As set out above, that requires an Act of Parliament. The Rules provide guidance on how the Court may exercise its powers, but such exercise must be within its jurisdiction.

30. Thus the references in the Rules to such terms as “in the interests of justice”, “the Court prevails in that proceeding”, or the Court “may make any judgment or order” cannot be read, as the applicant’s submissions hoped, as conferring on the Court some unfettered power to address the wrongs the applicant perceived had been perpetuated against her as a mandatory reporter and to those she claimed to “represent” (the children).

31. Several other matters need to be mentioned given the applicant’s submissions.

32. First, the applicant, perhaps understandably for a layperson, confused the notions of “allegations”, “evidence” and “documents”. This can been seen in the following.

33. The applicant made “mandatory reports”. In these, and subsequently pressed in other documents, she made claims of abuse against children and claims of other sexual conduct by a number of persons in and around the relevant school community in Leeton. In at least one point in her submissions, the applicant said she had “proof” and had “proven” that the incidents referred to in her reports had occurred.

34. It must be made clear that the material and documents attached to her affidavit contain serious allegations including conduct that, if proven, would lead to being characterised as “criminal conduct”. It may be accepted that for whatever reason her “mandatory report” of some of these matters was, given her concern, an “appropriate” step to take.

35. But it is not the applicant’s role to then assert that she had “proven” what remained as “allegations” of a number of serious criminal offences. The applicant has no prosecutorial role, nor is she judge or jury.

36. Second, and flowing from that immediately above, the applicant did take steps to address her grievance with the response she received from the CSO. For example, at page 35 of the attachments to her affidavit, the applicant reports “instructions” she received from the “Manager Child Protection” at the office of the NSW Ombudsman as to the process to pursue in pressing her grievance at the outcome of the CSO “investigation” of the matters raised in her “mandatory report”.

37. Third, in submissions the respondent relied on Shammas per Foster J (see above at [28]) to draw on the detailed exposition of relevant principles in the consideration of an application for summary dismissal. As the judgment of a superior Court, that provides direction for this Court on matters of this type, and I have sought to respectfully apply His Honour’s reasoning to the disposition of these proceedings.

38. Before the Court, the applicant argued that at least in relevant part the circumstances in Shammas were different to the circumstances presented in her case. The applicant explained that in Shammas the applicant, in that case, had brought her complaint to the ACT Human Rights Commission (Shammas at [35]), the ACT Civil and Administrative Tribunal (“ACAT”) (Shammas at [37]), the ACAT’s Appeal Division (Shammas at [43]), the ACT Supreme Court (Shammas at [47]), and then sought leave to appeal to the ACT Court of Appeal (Shammas at [47]). The applicant submitted that, in contrast, in her case she had come only to this Court after the termination of her complaint by the AHRC.

39. That may be the case. However, I do not respectfully understand the statement of the relevant principles in Shammas to have been derived solely from that particular circumstance in that case. Rather, in my respectful view, as is made plain (see for example at [50]), His Honour referred to principles assembled and summarised in another matter before him (Singh) and drew on what the High Court said in Spencer.

40. I respectfully understand those principles to be generally applicable to the consideration of the question of summary dismissal. The applicant’s case in Shammas, including the factual matrix, was not in my respectful view the generator of the expression of those principles, but rather the recipient of the application of those principles in His Honour’s consideration of the disposition of the matter before him. Thus I have sought to respectfully proceed in a similar fashion in these proceedings.

41. In this regard it is important to note, for example, that the reference in Shammas to the applicant in that case seeking to re-litigate a matter already heard and decided against her (see Shammas at [56](d)) plainly does not apply here. Noting further that at [56](d) the Court was reproducing submissions made in that case in relation to assertions that the case was an abuse of process and had no prospect of success. In the current case the extent of the matter of the “abuse of process” advanced by the respondent was clearly explained as being no further than that the applicant had no reasonable prospect of success. This is not, therefore, a relevant consideration in these proceedings such as to otherwise assist the applicant.

42. Fourth, the applicant did complain consistently (in her complaint before the AHRC and in her documents and oral submissions to this Court) that the CSO “revealed” her identity as a “Mandatory Report”. She alleges that this was a “criminal offence” and “discrimination” against her (see for example page 241 of the attachment to the affidavit and page 2-9 of her SOC).

43. I understood that this was put by the applicant to this Court as part of her “evidence” as to the treatment she said she received from the CSO and individuals in, and around, the school community. That aspect is dealt with generally elsewhere in this judgment.

44. What remains however is that allegations of criminal conduct, which in this case are not limited to revelations of the identity of “mandatory reporters” but include allegations of a large number of offences against children, should have been properly put to the proper authorities for investigation (the police or the NSW Courts). This is another illustration of the applicant’s misunderstanding of the jurisdiction, and powers, of this Court, and the limits and constraints imposed on it by the law.

45. Fifth, in her submissions the applicant stated that she had a very large number of supporters, including overseas, who were waiting for her to allow the release on the internet of a volume of material about the matters she had raised. Her words were to the effect that she was “holding back a dam”. Further, that this material would also include references to these proceedings and the Court’s judgment.

46. The Court’s judgment, of course, once handed down, and in the absence of anything to prohibit it, becomes publicly available. However, I did seek to clarify with the applicant the nature of these submissions. I did not comprehend that this was to be taken as a “threat” to deter the Court from finding against her if that were to be the case. Rather, this was a manifestation of the applicant’s belief that she is engaged in an important and greater cause in the protection of children. She saw the “abuse” she claimed to have suffered as being a part of this. It reveals again the applicant’s misunderstanding of the jurisdiction of this Court and the ability of the Court to give her the “relief” she seeks.

Conclusion

1. For the reasons set out above in this judgment the substantive application has no prospect of successfully prosecuting the proceeding. The respondent’s Application in a Case is made out. It is appropriate that I make an order, accordingly, pursuant to s.17A(2) of the Federal Circuit Court of Australia Act 1999 (Cth) and r.13.10(a) of the Federal Circuit Court Rules 2001 (Cth). To the extent that the respondent pursued dismissal pursuant to r.13.10(c), given the explanation that it was not intended to argue anything further than “no reasonable prospect of success”, I do not intend to make any such additional order. I will hear the parties as to costs.

I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date: 11 July 2014