Sarkisian v Commonwealth of Australia
[2008] FMCA 1265
•5 September 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SARKISIAN v COMMONWEALTH OF AUSTRALIA | [2008] FMCA 1265 |
| PRACTICE & PROCEDURE – Abuse of process – applicant attempting to relitigate a matter which the Federal Court had previously refused to entertain. |
| Federal Magistrates Court Rules 2001 (Cth) |
| Sarkisian v Australian Federal Government [2008] FCA 981 Sarkisian v Commonwealth [2008] FCA 1123 |
| Applicant: | ARAKEL SARKISIAN |
| Respondent: | COMMONWEALTH OF AUSTRALIA |
| File Number: | SYG 2098 of 2008 |
| Judgment of: | Driver FM |
| Hearing date: | 5 September 2008 |
| Delivered at: | Sydney |
| Delivered on: | 5 September 2008 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondent: | Ms N Johnson Sparke Helmore |
INTERLOCUTORY ORDERS
The Court directs that the second respondent be deleted from the application.
The application is dismissed as incompetent.
No further application by the applicant dealing with the issues raised in the present application and in proceedings NSD757 of 2008 and NSD1069 of 2008 in the Federal Court be accepted for filing in this Court, except by leave of a Federal Magistrate.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $750.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2098 of 2008
| ARAKEL SARKISIAN |
Applicant
And
| COMMONWEALTH OF AUSTRALIA |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an application filed on 13 August 2008 seeking orders which, although not specifically stated, appear to seek a declaration relating to the applicant's employment and professional status in Australia and also damages of between $4,480,000 and $13,440,000. The application is supported by an affidavit by the applicant which I received, in which he details difficulties he has had finding suitable employment since he arrived in this country from Armenia. He considers that the employment situation in this country was not made clear to him and that he has been disadvantaged by being provided with misleading information. The first respondent is the Commonwealth. The Australian Federal Government is named as the second respondent. There is no such person known to the law, and I have directed that the second respondent be deleted. The proper respondent is the Commonwealth.
The Commonwealth filed a response on 1 September 2008 asserting that the Court has no jurisdiction to hear the application, that the applicant does not raise an arguable case for relief pursuant to rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”) and that, pursuant to Part 13 of the Federal Magistrates Court Rules, the application ought to be dismissed as having no reasonable prospect of success or because it is frivolous or vexatious or an abuse of process. That response is supported by an affidavit by Nicola Johnson, which I also received, which draws attention to earlier proceedings in the Federal Court of Australia dealing with the same issues which Mr Sarkisian now seeks to agitate in this Court.
The background is dealt with in paragraph 1 of the judgment of his Honour Buchanan J in Sarkisian v Commonwealth [2008] FCA 1123:
Mr Sarkisian’s underlying complaint is that he arrived in Australia in 1992 at the age of 34 with a recognised diploma in engineering to take up some form of professional employment in response to an ‘announcement of the Australian government of a special immigration program to fill the gap in Australian economy with the professionals from overseas mostly from the former eastern block countries’. Now at the age of 50, after 16 years, he says that he has been unable to find work (presumably of a suitable kind), that his life has been ruined and that he is entitled to compensation. The compensation he seeks he has quantified at between $4,480,000 and $13,440,000 plus punitive damages.
Mr Sarkisian attempted to file documents in the Federal Court on 12 May 2008. The registry referred the documents to a judge for a direction. On 14 May 2008 Rares J directed that the documents not be accepted as the documents did not disclose a cause of action capable of invoking the jurisdiction of the Federal Court and were on their face an abuse of the Court’s process. Mr Sarkisian sought review of that decision. Gyles J dealt with that application on 25 June 2008[1]. At [4]-[6] his Honour said:
The difficulty is that the application as presented for filing simply does not disclose any cause of action known to the law. It reflects a grievance which Mr Sarkisian has against the Australian Government. I give a very brief summary. His case is that he was, in effect, lured to Australia by misleading promises or statements as to the nature of the job market in Australia for people of his qualifications and that following his immigration to Australia he has been unsuccessful in obtaining employment suitable for a person of his qualifications, contrary to the assurances that he says he was given prior to his deciding to immigrate to Australia. I have endeavoured to try and summarise what Mr Sarkisian has put in a discursive fashion in his affidavit and his address to me today. The proposed application was not in a form which identifies any cause of action, and whether there is a cause of action in those circumstances is, with respect to him, highly doubtful. It certainly has not been framed in a way which could be ruled upon by the Court.
I mention another serious difficulty for Mr Sarkisian, even if he could find a cause of action. His decision was made in 1992 when he came to Australia and, if there were a cause of action against the Australian Government, it is almost certain to now be statute barred, that is, too late to be brought against the Government because of limitation of action, although, of course, the Government need not take that point.
It seems to me that the direction given by Rares J was inevitable because the document concerned simply was not in a form which could properly be accepted. It seems to me that, without giving any legal advice to the applicant, in pursuing his grievance he must, if he can, obtain some legal advice to help him frame the document in a way which at least raises an arguable question. There may be other avenues that he can pursue. I give no assurance that is the case, but it is conceivable that he could have a complaint that the Commonwealth Ombudsman might take up. It may be again that there is some complaint that could be made to the Human Rights and Equal Opportunity Commission. I do not wish to suggest that these will be avenues of redress.
[1] Sarkisian v Australian Federal Government [2008] FCA 981
Buchanan J, having regard to the issues raised by Mr Sarkisian and the decision of Gyles J, dismissed a notice of motion seeking leave to appeal from Gyles J's decision.
Like Gyles J and Buchanan J, I have real difficulty understanding how the jurisdiction of this Court is enlivened. The application seeks to draw some connection with this Court's jurisdiction under the Migration Act 1958 (Cth), but I do not discern in the application any migration decision that is sought to be reviewed. Rather, Mr Sarkisian is concerned about an allegedly misleading interpretation of the employment situation in this country that was conveyed to him at some earlier time. I raised with him whether he was seeking to advance a claim of negligent misstatement, but he said that that was not the case. He is not suggesting any negligence.
This Court, like the Federal Court, is a court of limited jurisdiction. The Court has associated or accrued jurisdiction, but only in circumstances where the Court's primary jurisdiction is properly invoked. On the basis of the material before me, I find that no element of the Court's primary jurisdiction has been properly invoked, and, accordingly, no resort can be had to the Court's accrued or associated jurisdiction. I find that this Court lacks jurisdiction to deal with the application.
In the event that I am wrong on the issue of jurisdiction, I am satisfied from the material before me that the application has no prospect of success. There is no prospect of Mr Sarkisian recovering damages from the Commonwealth in respect of his inability to obtain what he considers suitable employment since he arrived in Australia. Further, the issues having already been dealt with by the Federal Court on two occasions, and Mr Sarkisian being dissatisfied with those decisions, it is an abuse of this Court's process to seek to obtain a different outcome in this Court.
I will order that the application is dismissed as incompetent. I will further order that no further application by the applicant dealing with the issues raised in the present application and in proceedings NSD757 of 2008 and NSD1069 of 2008 in the Federal Court be accepted for filing in this Court, except by leave of a Federal Magistrate.
The application having been dismissed, costs should follow the event. The Commonwealth seeks an order for costs fixed in the sum of $750. Mr Sarkisian opposes on order for costs both on principle and based upon his capacity to pay. The latter is not a reason for the Court to refrain from making a costs order. The former, I understand, to be related to Mr Sarkisian's view of the merits of his claim, which I have already dealt with. I will order that the applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $750.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 10 September 2008
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