Przybylowski v Australian Human Rights Commission
[2022] FedCFamC2G 1072
Federal Circuit and Family Court of Australia
(DIVISION 2)
Przybylowski v Australian Human Rights Commission [2022] FedCFamC2G 1072
File number(s): SYG 1096 of 2022 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 21 December 2022 Catchwords: HUMAN RIGHTS – Practice and procedure – application for summary dismissal of application for relief under s 46PO of the Australian Human Rights Commission Act 1986 (Cth) (Act) – whether the applicant has no reasonable prospect of satisfying essential preconditions for applying under s 46PO(1) of the Act and therefore has no reasonable prospect of successfully prosecuting the proceeding – no reasonable prospect – proceeding dismissed. Legislation: Administrative Appeals Tribunal Act 1975 (Cth) ss 2A, 60
Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5
Australian Human Rights Commission Act 1986 (Cth) ss 3(1), 11(1)(f), 20, 46P, 46PE, 46PF(1)(b), 46PH , 46PO, 47
Federal Court of Australia Act 1976 (Cth) s 31A
Judiciary Act 1903 (Cth) s 39B(1)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.13
Cases cited: Carreon v The Honourable Amanda Vanstone [2005] FCA 865
Forrest v Australian Securities and Investments Commission (2012) 247 CLR 486
Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
Division: General Number of paragraphs: 43 Date of last submission/s: 12 December 2022 Date of hearing: 7 October 2022 Place: Sydney The Applicant: Appeared in person, assisted by an interpreter Solicitor for the Respondent: Ms H Panditharatne of Australian Human Rights Commission ORDERS
SYG 1096 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MIROSLAW PRZYBYLOWSKI
Applicant
AND: AUSTRALIAN HUMAN RIGHTS COMMISSION
Respondent
order made by:
JUDGE MANOUSARIDIS
DATE OF ORDER:
21 DECEMBER 2022
THE COURT ORDERS THAT:
1.Pursuant to r 13.13 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) the proceeding is dismissed.
2.The respondent have liberty to apply for an order for costs, such liberty to be exercised within 28 days of the date of these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
introduction
In these reasons for judgment I consider whether the respondent (Commission) is correct in its contention that the applicant, Mr Przybylowski, does not have reasonable prospects of successfully prosecuting the claims for relief he makes purportedly under s 46PO of the Australian Human Rights Commission Act 1986 (Cth) (Act); and whether, for that reason, the proceeding should be dismissed pursuant to r 13.13 of the Federal Circuit and Family Court of Australia (Division 2)(General Federal Law) Rules 2021 (Cth) (GFL Rules).
To be in a position to consider these questions, it will be necessary, first, to identify the provisions of the Act purportedly pursuant to which Mr Przybylowski commenced this proceeding; second, to set out the facts out of which Mr Przybylowski has commenced this proceeding; and, third, identify the principles that govern the determination of applications made under of r 13.13 of the GFL Rules.
The ACt
Section 46PO
Mr Przybylowski commenced this proceeding purportedly pursuant to s 46PO of the Act, which relevantly provides as follows:
(1)If:
(a)a complaint has been terminated by the President under section 46PE, paragraph 46PF(1)(b) or section 46PH; and
(b) the President has given a notice to any person under subsection 46PH(2) in relation to the termination;
any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2), alleging unlawful discrimination by one or more of the respondents to the terminated complaint.
2)The application must be made within 60 days after the date of issue of the notice under subsection 46PH(2), or within such further time as the court concerned allows.
3)The unlawful discrimination alleged in the application:
(a)must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or
(b) must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.
(3A)The application must not be made unless:
(a) the court concerned grants leave to make the application; or
(b) the complaint was terminated under paragraph 46PH(1)(h); or
(c) the complaint was terminated under paragraph 46PH(1B)(b).
(4) If the court concerned is satisfied that there has been unlawful discrimination by any respondent, the court may make such orders (including a declaration of right) as it thinks fit, including any of the following orders or any order to a similar effect:
(a) an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination;
(b) an order requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant;
(c) an order requiring a respondent to employ or re‑employ an applicant;
(d) an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent;
(e)an order requiring a respondent to vary the termination of a contract or agreement to redress any loss or damage suffered by an applicant;
(f)an order declaring that it would be inappropriate for any further action to be taken in the matter
It will be seen that s 46PO of the Act confers jurisdiction on this Court and the Federal Court of Australia to make orders of the sort identified in s 46PO(4) if the “court concerned is satisfied that there has been unlawful discrimination by any respondent”. “Unlawful discrimination” is defined in s 3(1) of the Act to mean:
. . . any acts, omissions or practices that are unlawful under:
(aa)Part 4 of the Age Discrimination Act 2004; or
(a)Part 2 of the Disability Discrimination Act 1992; or
(b)Part II or IIA of the Racial Discrimination Act 1975; or
(c)Part II of the Sex Discrimination Act 1984;
and includes any conduct that is an offence under:
(ca)Division 2 of Part 5 of the Age Discrimination Act 2004 (other than section 52); or
(d) Division 4 of Part 2 of the Disability Discrimination Act 1992; or
(e) subsection 27(2) of the Racial Discrimination Act 1975.
This Court’s jurisdiction under s 46PO(1) of the Act depends on there being a “complaint” that has been terminated by the President under s 46PE, s 46PF(1)(b), or s 46PH of the Act. Subsection 3(1) of the Act defines “complaint” to mean (except in Part IIC of the Act) a written complaint lodged under Division 1 of Part IIB of the Act. Part IIB is headed “Redress for Unlawful Discrimination”; and Division 1 of that Part provides for the conciliation or termination of a written complaint lodged under s 46P(1) of the Act that alleges “that one or more acts have been done” or that “one or more omissions or practices have occurred”; and which also alleges that “those acts, omissions or practices are unlawful discrimination”.
A complaint, when lodged, must be referred to the President of the Commission.[1] The President, however, may or must terminate the complaint in the circumstances provided for by s 46PH(1), (1A), (1B), (1C), or (1D) of the Act as follows:
[1] Australian Human Rights Commission Act 1986, s 46PD
(1) The President may terminate a complaint on any of the following grounds:
(a) the President is satisfied that the alleged acts, omissions or practices are not unlawful discrimination;
(b) the complaint was lodged more than 6 months after the alleged acts, omissions or practices took place;
(c) the President is satisfied, having regard to all the circumstances, that an inquiry, or the continuation of an inquiry, into the complaint is not warranted;
(d) in a case where some other remedy has been sought in relation to the subject matter of the complaint—the President is satisfied that the subject matter of the complaint has been adequately dealt with;
(e) the President is satisfied that some other more appropriate remedy in relation to the subject matter of the complaint is reasonably available to each affected person;
(f) in a case where the subject matter of the complaint has already been dealt with by the Commission or by another statutory authority—the President is satisfied that the subject matter of the complaint has been adequately dealt with;
(g) the President is satisfied that the subject matter of the complaint could be more effectively or conveniently dealt with by another statutory authority;
(h) the President is satisfied that the subject matter of the complaint involves an issue of public importance that should be considered by the Federal Court or the Federal Circuit and Family Court of Australia (Division 2).
(1A) A complaint may be terminated under subsection (1) at any time, even if an inquiry into the complaint has begun.
(1B) The President must terminate a complaint if the President is satisfied that:
(a) the complaint is trivial, vexatious, misconceived or lacking in substance; or
(b) there is no reasonable prospect of the matter being settled by conciliation.
(1C) The President must terminate a complaint if the President is satisfied that there would be no reasonable prospect that the Federal Court or the Federal Circuit Court would be satisfied that the alleged acts, omissions or practices are unlawful discrimination.
(1D) A complaint may be terminated under subsection (1B) or (1C) at any time, even if an inquiry into the complaint has begun.
The President may also terminate a complaint under s 46PF(1)(b) of the Act without enquiry if, after considering whether to inquire into the complaint, having regard to the matters referred to in s 46PH, the President is of the opinion that the complaint should be terminated.
In Carreon v The Honourable Amanda Vanstone Ryan J accepted the submission that an application to the Federal Court under s 46PO(1) of the Act can only be made “if a complaint as to the subject of the application has been terminated by the” Commission.[2]
[2] Carreon v The Honourable Amanda Vanstone [2005] FCA 865, at [10]
Part II of the Act
Also relevant are the functions referred to in s 11(1)(f) of the Act the Commission may be required to perform. These are to:
(i) inquire into any act or practice that may be inconsistent with or contrary to any human right; and
(ii) if the Commission considers it appropriate to do so—endeavour, by conciliation, to effect a settlement of the matters that gave rise to the inquiry; and
The expression “human rights” is defined in s 3(1) of the Act to mean “the rights and freedoms recognised in the Covenant, declared by the Declarations or recognised or declared by any relevant international instrument”. “Covenant” is defined to mean the International Covenant on Civil and Political Rights; and “Declarations” is defined to mean:
(a)the Declaration of the Rights of the Child proclaimed by the General Assembly of the United Nations on 20 November 1959;
(b)the Declaration on the Rights of Mentally Retarded Persons proclaimed by the General Assembly of the United Nations on 20 December 1971; and
(c)the Declaration on the Rights of Disabled Persons proclaimed by the General Assembly of the United Nations on 9 December 1975.
“Relevant international instrument” is defined to mean any international instrument that has been declared under s 47 of the Act that is in force.
The Commission is required to perform the functions specified in s 11(1)(f) of the Act in the circumstances provided for by s 20(1) of the Act:
Subject to subsection (2), the Commission shall perform the functions referred to in paragraph 11(1)(f) when:
(a) the Commission is requested to do so by the Minister; or
(b)a complaint is made in writing to the Commission, by or on behalf of one or more persons aggrieved by an act or practice, alleging that the act or practice is inconsistent with or contrary to any human right; or
(c) it appears to the Commission to be desirable to do so.
Paragraph 20(2) of the Act is relevant:
The Commission may decide not to inquire into an act or practice, or, if the Commission has commenced to inquire into an act or practice, may decide not to continue to inquire into the act or practice, if:
. . . .
(ba) the Commission is satisfied, having regard to all the circumstances, that an inquiry, or the continuation of an inquiry, into the act or practice is not warranted; or
Also relevant is s 20(4) of the Act:
Where the Commission decides not to inquire into, or not to continue to inquire into, an act or practice in respect of which a complaint was made to the Commission, the Commission shall, unless the complaint has been transferred under subsection (4A), forthwith give notice in writing to the complainant of that decision and of the reasons for that decision.
Section 20A of the Act provides that the Commission may report to the Minister in relation to an inquiry it has undertaken into an act or practice that may be inconsistent with or contrary to any human right, if the Commission is of the opinion that the practice or act is inconsistent with or contrary to any human right.
background
By email sent on 14 December 2021 Mr Przybylowski lodged with the Commission a completed form of complaint (Complaint). In parts B and C of the Complaint Mr Przybylowski stated that his complaint was about Services Australia Child Support (now “Services Australia”) (SA), and the Administrative Appeals Tribunal (AAT); and his complaint was that SA and the AAT breached the Convention on the Rights of the Child (CRC). Mr Przybylowski stated that he believed his “human rights have been breach by a Commonwealth government body”, and that on 9 December 2021 he had “been victimised because [he] made a complaint or tried to make a complaint about discrimination”.
In the section of the Complaint headed “What happened?” Mr Przybylowski made the following allegations:
(a)Between 2008 and 2016 SA had made three decisions for child support in relation to Mr Przybylowski’s daughters in Poland that resulted in an overpayment of $10,077.66.
(b)During the period referred to in (a) the applicant’s son lived in Australia, but the applicant’s son did not receive any child support from the Australian government, and, for that reason, the Australian government is in debt to Mr Przybylowski’s son in the amount of $16,476.32.
(c)The AAT “refused to abolish the three decision[s] on” Mr Przybylowski’s request.
(d)SA had made three decisions “that were not available” to Mr Przybylowski’s three children, and were made “to break our relationship in the future”.
(e)The AAT’s decision of 9 December 2021 breached Art 3, Art 4, Art 5, Art 26, Art 27, and Art 36 of the CRC.
Mr Przybylowski attached a number of documents to the Complaint. These included the following:
(a)A Child Support Register Entry dated 17 December 2004 in relation to Mr Przybylowski’s daughters, Milena (born in May 1988), and Martyna (born in June 1995). The entry records an obligation to pay $304.48 per month, and arrears of $13,368.05.
(b)A Child Support Register Entry dated 29 January 2008 in relation to Milena and Martyna, which records an obligation to pay $169.16 and $135.32 per month, and arrears of $13,368.05.
(c)A letter dated 22 July 2011 from SA to Mr Przybylowski responding to Mr Przybylowski’s request for information about the disbursement of money paid to his former wife, Ms Elzbieta Przybylowska. The letter stated SA had disbursed a total of $7,955.57, and $23,185.54 had been credited against Mr Przybylowski’s account as a direct result of payments Mr Przybylowski made to Ms Elzbieta Przybylowska.
(d)A Child Support Register Entry dated 27 March 2013 for Martyna recording an obligation to pay $175 per month.
(e)A letter dated 3 March 2014 from SA to Mr Przybylowski noting that on 11 February 2014 payments were credited for child support to one of Mr Przybylowski’s daughters, and not to the other daughter, as the Department of Human Services (Department) had advised in its letter dated 11 February 2014.
(f)A letter dated 15 October 2015 from the Regional Court in Lodz, Poland, to SA stating it attached a copy two judgments passed by the District Court in Rawa Mazowiecka, together with the text of the Polish and Custody Code which the letter says stipulates that “Polish law does not consider the upper age limit of eligible child support recipients, but only whether they are capable or incapable of self-subsistence, which is always subject to judicial assessment”. The letter also says it attaches certificates confirming that Milena continued her education between 2004 and 2014, and that Martyna completed her education in June 2014; and a statement of affairs of the daughters. (The daughters are described as “creditors”.)
(g)A Child Support Register Entry dated 4 May 2016 in relation to Mr Przybylowski’s two daughters, which recorded the amount of monthly payments required to be made, and arrears.
(h)A letter dated 15 December 2016 from the Department to Mr Przybylowski providing information in response to a request Mr Przybylowski had made in relation to a credit of $5,313.95 referred in a letter from the Department dated 15 January 2014.
(i)An email the AAT sent to Mr Przybylowski at 9:19 am on 24 November 2021 setting out the assessment of the applications Mr Przybylowski had lodged with the AAT. The AAT identified three decisions made by SA in relation to which Mr Przybylowski applied for reviews, these being decisions made on 18 December 2009, 15 January 2010, 7 June 2012, and 3 May 2016.
(j)An email from Mr Przybylowski sent to the AAT on 24 November 2021 requesting the AAT review a decision made by SA on 4 May 2016. Mr Przybylowski also requested the AAT to provide its final decision in relation to an application for review made in relation to SA’s decisions made on 29 January 2008 and 17 July 2014.
(k)A letter dated 24 November 2021 from the AAT to Mr Przybylowski noting the SA had advised the AAT that the decision Mr Przybylowski wished the AAT to review had been sent to him on 13 January 2017, and that the application for review Mr Przybylowski made to the AAT on 30 August 2021 was received outside the 28 day period for seeking review. The AAT said that Mr Przybylowski’s application can only proceed if Mr Przybylowski applies for an extension of time which must be made in writing, and must state the reasons for not applying within the 28 day period.
(l)A child support account statement issued to Mr Przybylowski for the period 18 September to 20 October 2021 noting an overdue balance of $29,465.32.
(m)A letter dated 9 December 2021 from the AAT confirming to Mr Przybylowski that the AAT had previously told him that his application for review was out of time, and that he needed to complete an extension of time form, and return it to the AAT within 14 days.
On the basis of these documents Mr Przybylowski made the following claims:
(a)On 17 December 2004 SA had “calculated alimony” and child support for the period 2001 to 2004 to be $13,368.05.
(b)The child support from 17 December 2017 to 31 October 2010 was $21,313.60.
(c)From 1 November 2010 a new child support payment of $169.16 per month started for Milena, and a new child support payment of $175 per month started for Martyna.
(d)On 31 May 2013 child support for Milena ended, with $3,214.04 having been paid from 31 May 2010 to 31 May 2013.
(e)Child support for Martyna from 1 November 2010 to 30 September 2014 amounted to $8,050.
(f)A total of $45,945.69 child support, therefore, was paid.
Mr Przybylowski claimed, however, that SA had informed him that amounts totalling $56,023.35 had been paid, which is $10,077.66 more than what Mr Przybylowski claimed he was liable to pay for maintenance and child support of his two daughters. Mr Przybylowski claimed that SA should transfer $10,077.66 to his son in Australia.
On 20 January 2022 Mr Przybylowski sent the following email to the Commission (errors and emphasis in the original):
Firstly, I made a claim no a proposal.
Secondly, I claimed a breach of my rights as a parent as I am father of Matthew under Article 3 point 2 of the Convention on the Rights of the Child.
Thirdly, the breach of my parental rights under the CRC has started in 2008 when Matthew was 5 years old and finished when he was 13 years old in 2016, as the fake Child Support Registrar’s decision (3) says.
Fourthly, the AHRC approved my complaint against the AAT President (Judge Thomas) in the past. There is no judicial immunity.
Fifth, I do not require any agreement from my son Matthew to lodge my complaint legally.
Sixthly, any breach of the Convention on the Rights of the Child is a duty to act by the Commission under the AHRC Act 1986.
For the reason 'as above' please acknowledge my complaint by a proper confirmation and please start the procedure as soon as possible.
However, if the Commission disagrees with my 6-points repley I request from the Commission any responses to each of my points.
I request to receive from the Commission's references to legal regulations why the Commission disagrees with any of my points.
By letter dated 20 July 2022 a delegate of the President of the Commission informed Mr Przybylowski of the following:
(a)The delegate’s understanding of Mr Przybylowski’s complaint, namely: that child support decisions in relation to Milena and Martyna “from 16 December 2004 between 2008-2016” were registered in Poland; these decisions caused an overpayment of child support to Poland; the applicant’s son lived in Australia, but he did not received child support and, for that reason, the Australian government is in debt to Matthew in the amount of $16,476.34; the AAT refused to “abolish” the registered child support decisions, but suggested that Mr Przybylowski apply for an extension of time; and Mr Przybylowski refused to make such applications because he was not out of time. The AAT’s decision made on 9 December 2021 is against Art 3, Art 4, Art 5, Art, 26, Art 27, and Art 36 of the CRC; and Australia did not take into account, or respect, or ensure, the rights and duties of Mr Przybylowski as a parent.
(b)The delegate treated Mr Przybylowski’s complaint as a complaint that alleged a breach of human rights under the CRC. The delegate referred to a previous communications from the Commission to Mr Przybylowski in which the Commission advised Mr Przybylowski that, if he intended to make a complaint about the violation of the human rights of his son, Mr Przybylowski was required to provide an authority to act signed by Mr Przybylowski’s son. Given Mr Przybylowski did not provide any authority to act in relation to his son, the delegate said she would treat Mr Przybylowski’s complaint as lodged on Mr Przybylowski’s own behalf.
(c)Although Mr Przybylowski also complained that the AAT had breached s 2A of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), the Commission does not have authority to consider the alleged breaches of that Act.
(d)Paragraph (ba) of s 20(2) of the Act provides that the Commission may decide not to inquire, or continue to inquire, into a complaint alleging a breach of human rights if satisfied, having regard to all of the circumstances, that an inquiry, or the continuation of the inquiry, into the act or practice is not warranted.
(e)The delegate decided not to continue to inquire into Mr Przybylowski’s complaint because the delegate was satisfied, having regard to all of the circumstances, that the continuation of an inquiry is not warranted.
The delegate then set out her reasons for deciding not to continue with the inquiry, and why the delegate was satisfied that the continuation of an inquiry into Mr Przybylowski’s complaint is not warranted
(a)There are no apparent merits in Mr Przybylowski’s claims.
(i)As for Mr Przybylowski’s claims against SA, Mr Przybylowski had initiated proceedings in relation to SA’s orders regarding the payment of child support to Mr Przybylowski’s daughters in Poland. These proceedings consisted of an application for review to the Social Security Appeals Tribunal (SSAT), and an application to this Court (then known as the Federal Circuit Court of Australia) in relation to the SSAT’s decision. Mr Przybylowski failed in these proceedings and, for that reason, it appears that the correctness and lawfulness of the SSAT’s orders have been considered by the appropriate agencies.
(ii)As for Mr Przybylowski’s claim against the AAT, it was not very clear how the actions of the AAT in November and December 2021, as set out in the Complaint, could be said to constitute a breach of the CRC; and the Commission may not have authority to investigate the AAT because of the “judicial immunity” conferred by s 60 of the AAT Act.
(b)A substantial time has elapsed since the child support decisions were made in 2008, 2014, and 2016.
(c)Mr Przybylowski had taken steps in relation to the child support decisions. These steps included the following:
(i)Mr Przybylowski unsuccessfully objected to the decision to register a Polish order for spousal maintenance. This was followed by an unsuccessful application for review to the SSAT, which was followed by an unsuccessful application for judicial review of the SSAT’s decision.
(ii)Mr Przybylowski unsuccessfully objected to a decision made on 3 May 2016 to register a Polish court order requesting an increase in the amount of child support. Mr Przybylowski did not apply for review of the decision, even though it appears it was open to Mr Przybylowski to have applied for an independent review of the decision.
(iii)Since 2017 Mr Przybylowski has lodged several complaints to the Commission alleging a breach of his human rights which directly or indirectly concern the registration and enforcement of the Polish orders for spousal maintenance and child support; the Commission has considered those complaints; and Mr Przybylowski’s applications for judicial review of those decisions were dismissed. As for the AAT’s decisions, Mr Przybylowski has other remedies available to him.
(d)It appears very unlikely that Mr Przybylowski could achieve the outcome he seeks in the Complaint, namely, SA paying to Mr Przybylowski’s son $10,077.66 together with interest of $6,046.
application to this court
Mr Przybylowski commenced the proceeding in this Court by filing the form of application that has been prescribed for proceedings under s 46PO of the Act.
(a)In the column next to the printed words “Final orders sought by applicant/s” Mr Przybylowski states: “Declaration that the Australian Child Support Registrar’s decision made on 4 May 2016 was a forgery”.
(b)In the column next to the word “Interlocutory, interim or procedural orders sought by applicant/s” Mr Przybylowski states:
1.Contact the Rawa Mazowiecka Poland and to obtain all evidences about any child support which were serviced·by the MOPS from case Miroslaw Przybylowski v Elzbieta Przybylowska govern by the Australian Child Support Registrar in Australia between 2004-2017.
2.I request the Court to make the contact under 1933 Convention between Australia and Poland regarding Legal Proceedings in Civil and Commercial Matters as per response given by the Commonwealth Attorney-General to Senator Bob Brown upon notice, on 29 September 2005.
(c)In the column next to the words “What discrimination are you complaining of?” Mr Przybylowski states: “Forgery and extorting money.”
(d)In the column next to the words “Under what Act is the discrimination you are complaining of unlawful?” Mr Przybylowski specifies the Age Discrimination Act 2004 (Cth) (AD Act), the Disability Discrimination Act 1992 (Cth) (DD Act), the Racial Discrimination Act 1975 (Cth) (RD Act), and the Sex Discrimination Act 1984 (Cth) (SD Act).
(e)In the column next to the words “State all sections of the Act that are relevant to this claim” Mr Przybylowski states “sect. 31(1)(a) and others” of the AD Act, “sect. 29 (Division 2) and others” of the DD Act, “sect. 9, and others” of the RD Act, and “sect. 6 and others” of the SD Act.
Mr Przybylowski supports his application with a number of affidavits. One is an affidavit Mr Przybylowski made on 27 August 2022, to which he annexes the following documents:
(a)A translation of a “notification” issued by the Regional Court in Rawa Mazowiecka on 22 February 202, concerning the alteration of real estate ownership.
(b)A child support statement covering the period 17 September to 20 October 2016. It records a credit adjustment of $15,397.54 to the last debit balance of $21,211.40, leaving an overdue balance of $5,813, a current debit balance of $15,675.29, and a closing debit balance of $21,489.15.
(c)A translation of an excerpt of a decision of the Regional Court in Rawa Mazowiecka dated 28 September 2017. It records the approval of the discontinuance of a proceeding “Miroslaw Przybylowski against Milena Przybylowski and Martyna Przybylowski about establishing the expiry of the alimony duty”. The translation includes the following (errors in original):
On 14 December 2016 the plaintiff applied in a written statement for the discontinuation of proceedings (in the overall context of the statement the above request was understood as the willingness to withdraw the complaint), due to the decision of the Polish authorities to drop the alimony claims in favor of the defendants sued by the plaintiff and the sentencing of adjudication of the court costs of 3,266.44 zloty by the defendants in the plaintiff's favor.
. . . .
In relation to the demand of the plaintiff for the reimbursement of court proceeding costs, the demands were regarded as unfounded - on the principle that in the instance of withdrawal of claims, the it is the plaintiff who is charged with court costs (art. 202 § 1 and2 of the civil law code).
This principle is not applied only in an instance where the withdrawal is caused by the plaintiff's claims being met after the lodgment of the claim. In such an instance, after additional examination that the defendant has given reasons for the claim to be lodged, the defendant is treated as the party losing the case and so att. 98 of the civil law code regarding the recovery of costs shall apply as a legal base.
In the opinion of the Court, the above described circumstances have not taken place in the case matter - as the reason for the withdrawal of claims was based on the decision by the Polish authorities to abandon the claims against the defendant and not on actions of defendants.
(d)A child support account statement addressed to Mr Przybylowski, for 21 July 2022 to 19 August 2022, which shows a payment of $105.54, and an outstanding debit balance of $28,313.20.
Mr Przybylowski also annexed a decision of the AAT, dated 21 June 2022, in relation to a purported application for review of a matter the AAT had finalised in August 2014. The decision records that Mr Przybylowski claimed that he was seeking redress in relation to a fraud operating between Australia and Poland, and that, in making its 2014 decision, the AAT did not check the status of the relevant Polish orders ; that in 2020 Mr Przybylowski provided SA new evidence that showed that the orders SA and the AAT used in making their decisions were fraudulent; that although the AAT had amended its records, Mr Przybylowski claimed the amendments nullified the AAT’s decision of 2014; and that $10,000 was intercepted and transferred to Poland, and although Mr Przybylowski agreed that some that money may have been for ordinary child support, he was not satisfied as to the amount because SA had not given him evidence showing which of the amounts were child support, and which for spousal maintenance.
The AAT then set out the effect of the allegations Mr Przybylowski made to the AAT in 2014, and the AAT’s decision:
On 10 January 2014 the Child Support Registrar decided to register an order, said to have been made in a Polish court on 28 September 2006, for Mr Przybylowski to pay spousal maintenance. The spousal maintenance-order was registered from 7 November 2013.
The issue before the AAT in 2014 was whether the order for spousal maintenance, which Mr Przybylowski asserted was fraudulent, should have been registered by the Child Support Registrar. The tribunal, differently constituted, decided that the order of 28 September 2006 was a registrable maintenance liability which was properly registered on 10 January 2014. The decision under review was affirmed and Mr Przybylowski subsequently lodged an application with the Federal Circuit Court.
As I understood Mr Przybylowski he is not seeking a further review of the decision made by the AAT in August 2014, as such, but is seeking some redress for what he alleges is a fraud perpetrated by the AAT, which he states has deprived him of the ability to return to Poland, due to debts incurred and the risk of imprisonment.
. . . .
The documents provided by Mr Przybylowski and the Child Support Registrar indicate that following receipt of further evidence from the Polish Central Authority in 2016 a further decision was made, on 6 September 2016, to end the spousal maintenance order from 17 May 2011 (as a result an amount of $4,548.46 was repaid to Mr Przybylowski). This decision, in effect, nullified the 27 August 2014 decision of the AAT that the spousal maintenance order was correctly registered from 7 November 2013. Any decisions in relation to whether arrears were owed for periods before 7 November 2013 or about the date from which the spousal maintenance order should end were not matters before the AAT in August 2014.
The last document Mr Przybylowski attaches to his affidavit of 27 August 2022 is a copy of paragraphs 5-11, of what appears to have been intended to be the second page of the affidavit Mr Przybylowski made on 31 July 2022, to which I refer below. Mr Przybylowski asserts that in 2022 he found that AUD $24,538.02, together with interest, should be paid back to Mr Przybylowski and his son’s child support account.
A second affidavit on which Mr Przybylowski relies is the affidavit made on 28 July 2022 to which he attaches the Commission’s letter dated 20 July 2022.
The third affidavit is one Mr Przybylowski appears to have made on 31 July 2022. Mr Przybylowski attaches the Child Support Register Entry dated 4 May 2016 (which he attached to the Complaint), and a document titled “Financial Calculation for the Australian Human Rights Commission Complaint No. 2022-01666”. Mr Przybylowski asserts that the Child Support Register Entry dated 4 May 2016 is a forgery.
summary dismissal – principles
Rule 13.13 of the GFL Rules relevant provides that this Court may order that a proceeding be dismissed if the Court is satisfied that “the party prosecuting the proceedings . . . has no reasonable prospect of successfully prosecuting the proceeding”. Rules 13.13 is a substantially similar term as s 31A of the Federal Court of Australia Act 1976 (Cth); and the principles governing the exercise of the power conferred by s 31A were set out by Perry J in Przybylowski v Australian Human Rights Commission(No 2):[3]
[3] Przybylowski v Australian Human Rights Commission(No 2) [2018] FCA 473, at [7]
The principles governing the application of s 31A are well established and can be summarised as follows:
(1)The respondent as the moving party bears the onus of persuading the Court that the application has no reasonable prospects of succeeding: Australian Securities and Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256 (Cassimatis) at 271 [45] (Reeves J).
(2)With respect to the scope of s 31A, French CJ and Gummow J explained in Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 (Spencer) at [22], that the section:
… will apply to the case in which the pleadings disclose no reasonable cause of action and their deficiency is incurable. It will include the case in which there is unanswerable or unanswered evidence of a fact fatal to the pleaded case and any case which might be propounded by permissible amendment. It will include the class of case in the long-standing category of cases which are “frivolous or vexatious or an abuse of process”. The application of s 31A is not, in terms, limited to those categories.
(3)Section 31A sets a lower threshold than the previous test for summary dismissal which required that the claim be “manifestly groundless” or “hopeless”: Spencer at [52]-[53] (Hayne, Crennan, Kiefel and Bell JJ). Nonetheless, the discretion must still be exercised with caution (Spencer at [24] (French CJ and Gummow J) and [60] (Hayne, Crennan, Kiefel and Bell JJ)).
(4)An assessment of whether a proceeding has no reasonable prospects of success for the purposes of s 31A involves the making of value judgments in the absence of a full and complete factual matrix and argument, with the result that the provision vests a discretion in the Court: Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117; (2009) 178 FCR 401 (Kowalski) at [28] (the Court).
(5) Consistently with this, Reeves J in Cassimatis explained at [46] that:
…the determination of a summary dismissal application therefore does not require a mini-trial based upon incomplete evidence to decide whether the proceedings are likely to succeed or fail at trial. Instead, it requires a critical examination of the available materials to determine whether there is a real question of law or fact that should be decided at trial. Each application for summary judgment or summary dismissal has to be determined according to its particular circumstances. What is required is a practical judgment of the case at hand. The relevant circumstances will partly depend upon the stage which the proceedings have reached. Among other things, this will affect the materials available to the Court considering the application, for example, whether pleadings have been exchanged, or discovery of documents has occurred.
(6)To illustrate the application of these principles, Reeves J explained at [47] that the moving party is more likely to succeed if she or he demonstrates that the applicant’s success relies on a question of fact that is fanciful, trifling, implausible, improbable, tenuous, or contradicted by all the available documents or evidence. Conversely, his Honour explained that, as a general principle, such an application is unlikely to succeed where, on a critical examination of all the available materials, the Court is satisfied that there appears to be a real question of fact to be determined. The latter, in his Honour’s view, is more likely to be the case where the available materials include pleadings that raise factual disputes that can truly be described as significant, substantial, plausible or weighty.
parties’ submissions
The Commission submits Mr Przybylowski has no reasonable prospects of successfully prosecuting the proceeding because there is no evidence the President terminated the Complaint either under s 46PE, or s 46PF(1)(b), or s 46PH of the Act. The Commission treated Mr Przybylowski as having complained that SA and the AAT committed an act, or had engaged in a practice that is inconsistent with or contrary to a human right; and the Commission made a decision under s 20(2)(ba) of the Act not to continue with the inquiry into Mr Przybylowski’s complaint because it was satisfied that the continuation of an inquiry was not warranted. The Commission accepts that a decision made under s 20(2)(ba) of the Act is a decision to which the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) applies; but the Commission submits that Mr Przybylowski has not applied for any remedy under the ADJR Act in relation to that decision.
Mr Przybylowski, who is not legally represented, asserts that “financial terror” has been waged on his son from 2014, when his son was 11 years of age; and the “financial terror” consisted of the Australian government spending Mr Przybylowski’s money to support “criminalisation in Poland” rather than paying Mr Przybylowski’s son. Mr Przybylowski submits that the Commission does not explain in its written submissions why “the wrongdoing by the Australia government against it’s [sic] own citizens is not a valid allegation of unlawful discrimination”. Mr Przybylowski also submits that the Court should “dismiss” the Commission’s decision and “return the matter to the Commission to open a conciliation”.
In oral address Mr Przybylowski submitted that the Commission’s submissions on jurisdiction relate to a procedural mistake. Mr Przybylowski said he could find no form by which he could challenge the Commission’s decision other than the form he used. He submitted that I should set aside the Commission’s decision, and require the Commission to complete a report and provide it to the Minister within one month.
determination
It is beyond argument that the Commission did not terminate, or purport to terminate, the Complaint pursuant or purportedly pursuant to s 46PE, or s 46PF(1)(b), or s 46PH of the Act; and that a termination pursuant to any one of these provisions is a precondition to this Court having jurisdiction to consider whether there has been any unlawful discrimination. There is no doubt that the Commission instead terminated the Complaint purportedly pursuant to s 20(2)(ba) of the Act. That means that Mr Przybylowski does not have any reasonable prospects of showing that the preconditions prescribed by s 46PO(1) for this Court’s jurisdiction to determine whether there has been any unlawful discrimination have been satisfied, those preconditions being the termination of a complaint pursuant s 46PE, or s 46PF(1)(b), or s 46PH of the Act; and it is beyond argument that these preconditions have not been satisfied.
It is the case that the Commission’s decision, purportedly made pursuant to s 20(2)(ba) of the Act, to terminate the Complaint was a decision in relation to which Mr Przybylowski could have applied to this Court or to the Federal Court for an order of review pursuant to s 5 of the ADJR Act, and Mr Przybylowski could have applied to the Federal Court of Australia for constitutional writs under s 39B(1) of the Judiciary Act 1903 (Cth) in relation to the Commission’s decision. These possibilities, however, do not assist Mr Przybylowski. Mr Przybylowski has not applied for an order for review under s 5 of the ADJR Act; and even if his application could be treated as an application for an order of review under the ADJR Act, Mr Przybylowski would have no reasonable prospects of succeeding in obtaining any relief under that Act. The application does not articulate, and is incapable of being construed as articulating, in relation to the Commission’s decision, any one or more of the grounds of review provided for by s 5(1) of the ADJR Act. Mr Przybylowski’s claims go no further than asserting fraud in relation to orders for the payment of spousal maintenance and child support, and in relation to the documents on the basis of which such orders were made.
But there are great difficulties with Mr Przybylowski’s allegations of fraud. First, they appear to be directed, at least in substantial part, to documents purportedly recording orders made by a Polish court. Mr Przybylowski, however, does not articulate the ground on which he claims the documents are forgeries; and he does not provide particulars or evidence to support his claim the documents are forgeries.[4] Second, Mr Przybylowski appears to claim the child support payments that he made, or which had been deducted from amounts otherwise payable to him, exceeded the amounts he was legally obliged to pay; yet Mr Przybylowski does not identify the amount or amounts he claims he was legally obliged to pay, and whether these amounts are less than the amounts he has paid. Third, it is not apparent from the evidence what amounts for child support Mr Przybylowski did pay. The child support account statement for the period 21 July 2022 to 19 August 2022 shows a closing debit balance of $28,313.20 in circumstances where $52.77 was being deducted fortnightly from Centrelink payments. It is unclear to what extent, if any, Mr Przybylowski accepts the closing debit balance of $28,313.20 represents an amount he is liable to pay. Finally, Mr Przybylowski claimed that the money he was induced to pay because of the asserted frauds ought to have been paid to his son; but there is no evidence to suggest that any person had applied for an order that Mr Przybylowski make any child support payments to his son with the consequence that Mr Przybylowski was prevented through fraud to honour his obligation to make child support payments to his son.
[4] It is a fundamental and long-established principle that, in all cases based on fraud, “particulars of the fraud claimed must be exactly given and the allegations must be established by the strict proof which such charge requires” (Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, at page 538 (Kirby P); and “if a case of fraud is to be mounted, it should be pleaded specifically and with particularity” (Forrest v Australian Securities and Investments Commission (2012) 247 CLR 486; [2012] HCA 39, at [26]). These principles apply to all parties, whether legally represented or not.
After the hearing Mr Przybylowski copied to my Associate’s inbox the following email he sent to the Commission’s lawyer at 3:07 pm on 7 October 2022.
Please consider to make an extraordinary contact with Judge Manousaridis about your previous legal claim that there is no upper age limit for child support in Poland presented with your closure of complaint, your reference: 2017-01021 dated 12 May 2017.
Your legal determination of 2017 has been approved by the Federal Court of Australia with its order [2018] FCA 473.
Your legal determination is outside the Polish Law, based on the all evidences included with the material in the case SYG1096/2022.
I think Judge Manousaridis should know about your previous statement in case 2017- 01021 which was wrong and deceitful.
The Commission’s lawyer responded with the following email:
Dear Mr Przybylowski
I refer to your below email. I note that your email relates to one of your previous complaints to the Commission. A decision letter was provided to you about that matter on 12 May 2017. You sought judicial review of that decision, and a judgment was handed down on 9 April 2018 (Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473). It is clear, both from the decision letter and from paragraph 38 of that judgment that the Commission did not make the ‘legal claim’ alleged by you. Instead, the Commission’s decision recorded an allegation you had made about the Department of Human Services.
Nothing turns on whether, as Mr Przybylowski claims in his email, the Commission had submitted in an earlier proceeding there is no upper age limit for child support in Poland; and I do not propose to make any finding about this. I cannot refrain from observing, however, that it was inappropriate for Mr Przybylowski, not only to copy my Associate with an email he had sent to the Commission, but to copy my Associate with an email that includes serious and unparticularised allegation of deceit.
On 12 December 2022 Mr Przybylowski sent another email to my associate’s inbox attaching what Mr Przybylowski described as a “new Polish originating Court’s order”. This email was brought to my attention after I had completed a draft of these reasons for judgment. The email and the attachment to that email has not caused me to reconsider anything I say in these reasons for judgment.
conclusion and disposition
Mr Przybylowski has no reasonable prospects of successfully prosecuting this proceeding. The proceeding must therefore be dismissed.
I will reserve to the Commission liberty to apply for an order for costs within 28 days after the day on which I dismiss the proceeding, if the Commission intends to apply for an order for costs.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 21 December 2022
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