FEDERAL COURT OF AUSTRALIA
Sayed v Salvation Army Housing [2023] FCA 526
File number: VID 685 of 2022 Judgment of: O’CALLAGHAN J Date of judgment: 26 May 2023 Catchwords: PRACTICE AND PROCEDURE – application for summary judgment by respondents – proceeding dismissed Legislation: Criminal Code Act 1995 (Cth) s 471.12
Evidence Act 1995 (Cth) ss 27, 29
Federal Court of Australia Act 1976 (Cth) ss 31A, 37P
Healthcare Identifiers Act 2010 (Cth) ss 3, 26, 27
Privacy Act 1988 (Cth) ss 6, 6C, 13, 13G, 15, 80Q, 80W, 93, Sch 1
Privacy Amendment (Private Sector) Act 2000 (Cth)
Federal Court Rules 2011 (Cth) r 26.01
Commonwealth, Parliamentary Debates, House of Representatives, 12 April 2000, 15751 (Daryl Williams, Attorney-General)
Charter of Human Rights and Responsibilities Act 2006 (Vic)
Housing Act 1983 (Vic)
Privacy and Data Protection Act 2014 (Vic)
Residential Tenancies Act 1997 (Vic) ss 85, 86, 89, 91ZL, 322
Victorian Civil and Administrative Tribunal Act 1998 (Vic) ss 75, 77
Cases cited: Danthanarayana v Commonwealth [2016] FCAFC 114
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Kimber v Owners Strata Plan No 48216 [2016] FCA 1090
Minister for Home Affairs v Hunt (2019) 269 FCR 292
Monis v The Queen (2013) 249 CLR 92
National Mutual Life Association of Australasia Ltd v Tolfield Pty Ltd (No 2) [2011] FCA 1309
Prior v South West Aboriginal Land and Sea Council Aboriginal Corporation [2020] FCA 808
Sop and Sop Pty Ltd v Commissioner of Taxation [2019] FCA 102
Spencer v Commonwealth (2010) 241 CLR 118
Sullivan v North West Crewing Pty Ltd [2016] FCA 1130
Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507
Victoria International Container Terminal Ltd v Lunt (2021) 271 CLR 132
Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 104 Date of hearing: 15 May 2023 Counsel for the Applicant: The Applicant appeared in person Counsel for the First and Second Respondents: Ms PC Knowles Solicitor for the First and Second Respondents: Thomson Geer Counsel for the Third and Fifth Respondents: Mr JT Teng Solicitor for the Third and Fifth Respondents: Department of Families, Fairness and Housing Counsel for the Fourth Respondent: Ms REV Walsh Solicitor for the Fourth Respondent: Department of Treasury and Finance ORDERS
VID 685 of 2022 BETWEEN: MUHAMMAD SAYED
Applicant
AND: SALVATION ARMY HOUSING (ACN 608 346 934)
First Respondent
SALVATION ARMY HOUSING (VICTORIA) (ACN 133 724 651)
Second Respondent
CHIEF EXECUTIVE OFFICER, HOMES VICTORIA (and others named in the Schedule)
Third Respondent
ORDER MADE BY:
O’CALLAGHAN J
DATE OF ORDER:
26 MAY 2023
THE COURT ORDERS THAT:
1.The name of the third respondent be changed to Chief Executive Officer, Homes Victoria.
2.The proceeding be dismissed.
3.The applicant pay the respondents’ taxed costs.
Note: Entry of orders is dealt…
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- AGLC
- Sayed v Salvation Army Housing [2023] FCA 526
- Case
- [2023] FCA 526
- Decision Date
CaseChat Overview and Summary
The applicant, an Australian lawyer who is not practising, brought an action against the Salvation Army Housing (SAH) and Salvation Army Housing Victoria (SAHV), as well as several other respondents, seeking relief related to a dispute over the use and disclosure of his personal information. The matter was heard via telephone as the applicant was self-represented. The respondents filed affidavits from a partner at Thomson Geer, who provided the necessary factual background. The applicant’s unsworn affidavit was not considered as it did not provide relevant information.
The legal issues the court needed to address included whether the proceeding disclosed a reasonable cause of action and whether it was an abuse of process. The court referenced several authorities to clarify the standards for summary judgment under the Federal Court Rules. The court had to determine whether the applicant had no reasonable prospect of successfully prosecuting the claim, whether the proceeding was frivolous or vexatious, or if it constituted an abuse of the court’s process.
The court found that the proceeding did not disclose a reasonable cause of action and was an abuse of process. The proceeding was dismissed for failing to articulate any legal basis for the claims and for being manifestly groundless. The court concluded that the applicant had no reasonable prospect of success and that the proceeding was frivolous, vexatious, and an abuse of the court’s process. As a result, the proceeding was dismissed and the applicant was ordered to pay the respondents’ taxed costs.
The legal issues the court needed to address included whether the proceeding disclosed a reasonable cause of action and whether it was an abuse of process. The court referenced several authorities to clarify the standards for summary judgment under the Federal Court Rules. The court had to determine whether the applicant had no reasonable prospect of successfully prosecuting the claim, whether the proceeding was frivolous or vexatious, or if it constituted an abuse of the court’s process.
The court found that the proceeding did not disclose a reasonable cause of action and was an abuse of process. The proceeding was dismissed for failing to articulate any legal basis for the claims and for being manifestly groundless. The court concluded that the applicant had no reasonable prospect of success and that the proceeding was frivolous, vexatious, and an abuse of the court’s process. As a result, the proceeding was dismissed and the applicant was ordered to pay the respondents’ taxed costs.
Orders
Orders of the court
1. The name of the third respondent be changed to Chief Executive Officer, Homes Victoria.
2. The proceeding be dismissed.
3. The applicant pay the respondents’ taxed costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
The applicant described himself as an Australian lawyer, although he said in the course of his submissions that he did not hold a practising certificate. He was self-represented and made oral submissions at the hearing, via telephone.The facts The respondents relied on two affidavits of Mr Benjamin Thrift, who is a partner of Thomson Geer, the solicitors for SAH and SAHV. The applicant filed an unsworn affidavit, but it is not necessary to refer to anything in it because it did not say anything pertinent to this application. The relevant facts are uncontroversial. The emails referred to below when identified as such are exhibited to the statement of claim. SAH is a community housing organisation that provides homes for individuals and families who are homeless or at risk of homelessness, are on low incomes, or have specific support needs. It is a company limited by guarantee and operates in South Australia, Western Australia and Tasmania. SAHV is a community housing organisation that provides homes for individuals and families who are homeless or at risk of homelessness, are on low incomes, or have specific support needs. It is a company limited by guarantee and operates in Victoria. SAH and SAHV each have the same five directors: Mark Gray, Roslynne Hansen, Jeffrey Davey, Jenny Begent and Winsome Mason. The third and fourth respondents (the Chief Executive Officer, Homes Victoria and the Registrar of Housing Agencies) are Victorian statutory officers, and the fifth respondent is a Victorian Minister and member of the Victorian Parliament. SAHV provided housing services pursuant to a Service Agreement with the State of Victoria dated 1 January 2020. Clause 17 provided that SAHV is a Contracted Service Provider and agreed to be bound by the Privacy and Data Protection Act 2014 (Vic) (the PDP Act). SAHV performed its obligations under the Service Agreement on behalf of a State Department. That agreement was superseded by a Service Agreement dated 1 February 2021. On 4 February 2020, the applicant signed a Privacy Notice and Consent Form. The form provided consent by the applicant to the Salvation Army using and disclosing his personal information for purposes related to the services it provides. On 6 February 2020, SAHV entered into an agreement to lease premises to the applicant (Rental Agreement). For the purposes of the Residential Tenancies Act 1997 (Vic) (the RTA), SAHV is a “residential rental provider” and the applicant is a “renter” of “rented premises”. The Rental Agreement contained, inter alia, the following terms:(a)SAHV lets to the applicant the premises in Victoria (Premises) (clause 1);(b)the Premises are for the express purpose of providing transitional housing to the applicant whilst they are in housing crisis (clause 3);(c)the Rental Agreement shall be for a period of 16 weeks commencing on 6 February 2020 and ending on 28 May 2020 or until terminated in accordance with the RTA (clause 3);(d)the applicant shall keep the Premises in a reasonably clean condition during the period of the Rental Agreement (clause 6(b)); and(e)the applicant shall not use or allow the Premises to be used in any such manner as to cause a nuisance (clause 7(b)).
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Rule 26.01 of the Federal Court Rules relevantly provides:26.01 Summary judgment(1)A party may apply to the Court for an order that judgment be given against another party because:(a)the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding; or(b) the proceeding is frivolous or vexatious; or(c) no reasonable cause of action is disclosed; or(d) the proceeding is an abuse of the process of the Court; or… The essential requirement for an order under s 31A or r 26.01 is that the court be satisfied that the applicant has no reasonable prospect of successfully prosecuting the claim: Spencer v Commonwealth (2010) 241 CLR 118 at 131-32 [24]-[25] (French CJ and Gummow J) and 141 [60] (Hayne, Crennan, Kiefel and Bell JJ). As Spencer makes clear, this is a lower standard than the “General Steel test” of “hopeless” or “bound to fail” (see Dey v Victorian Railways Commissioners (1949) 78 CLR 62 and General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125). In Sop and Sop Pty Ltd v Commissioner of Taxation [2019] FCA 102 at [14]-[15], Kenny J said that “when well-established propositions of law deny the prospect of success” summary judgment is available. Although, as her Honour said, summary dismissal is a “serious step taken only with great care and if it is possible to conclude with confidence that there is no reasonable prospect of success”, quoting Danthanarayana v Commonwealth [2016] FCAFC 114 at [4] (Jagot, Bromberg and Murphy JJ). Proceedings dismissed pursuant to r 26.01(1)(c) of the Federal Court Rules for not disclosing a reasonable cause of action include:(a)where the originating application is not accompanied by pleadings, affidavits or submissions, and simply makes ‘bare demands’ without articulating the legal bases for the claims: Sullivan v North West Crewing Pty Ltd [2016] FCA 1130 at [33]-[34] (McKerracher J); and(b)where pleadings consist of “scandalous, conclusory allegations, with no attempt to plead any material facts upon which the allegations are made and which raise no reasonable cause of action”: Kimber v Owners Strata Plan No 48216 [2016] FCA 1090 at [72] (Perry J). As to abuse of process, in Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507, French CJ, Bell, Gageler and Keane JJ said at 518-19 [25] that “abuse of process is capable of application in any circumstances in which the use of a court’s procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute”. An abuse of process may arise in circumstances including where the proceedings can be clearly seen to be foredoomed to fail or where the court in which the proceedings are instituted is, in all the circumstances, clearly an inappropriate forum. See Walton v Gardiner (1993) 177 CLR 378 at 393 (Mason CJ, Deane and Dawson JJ). As McKerracher J said in Prior v South West Aboriginal Land and Sea Council Aboriginal Corporation [2020] FCA 808 at [35]-[38]:The expressions ‘scandalous’, ‘vexatious’ and ‘frivolous’ can be used either separately, or in conjunction, or interchangeably, with the expression ‘abuse of process of the court’: Crocker v Toys ‘R’ Us (Australia) Pty Ltd (No 3) [2015] FCA 728 per Reeves J (at [9]).A matter is ‘frivolous and vexatious’ where the ‘cause of action is one which on the face of it is clearly one which no reasonable person could properly treat as bona fide, and contend that he had a grievance which he was entitled to bring before the court’: Geneva Laboratories Ltd v Nguyen (2014) 110 IPR 295 per Gleeson J (at [56]), quoting Norman v Matthews (1916) 85 LJKB 857 (at 859).In relation to the term ‘frivolous’:(a)a matter that is ‘frivolous’ may be described as one that is ‘without substance or groundless or fanciful’: Crocker per Reeves J (at [9]), citing Pickering v Centrelink [2008] FCA 561 per McKerracher J (at [27]); MCG Quarries Pty Ltd v Beach [2017] FCA 1601 per Davies J (at [4]);(b)a proceeding will be ‘frivolous’ where, despite whatever attempts are made to discern a cause of action in the case, it is still not arguable: Pickering per McKerracher J (at [27]), referring to NBGZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 119; (2005) 143 FCR 434 (at [16]-[22]); and(c)‘frivolous’ may also describe a situation where a party is trifling with the Court or wasting the Court’s time: Crocker per Reeves J (at [9]), citing Chaffers v Goldsmid [1894] 1 QB 186.In relation to the term ‘vexatious’:(a)a ‘vexatious’ proceeding is one without foundation, which cannot succeed, or is brought for an ulterior and collateral purpose. ‘Vexatious’ might also describe proceedings that are seriously and unfairly burdensome, prejudicial or damaging: Crocker per Reeves J (at [9]);(b)proceedings may also be described as ‘vexatious’ where they impose on a respondent party an unnecessary injustice in the form of a burden other than, and additional to, the burden necessarily imposed on a party to litigation instituted on reasonable grounds for the purpose of obtaining relief within the scope of the available remedy: Dowling v John Fairfax Publications Pty Ltd (2007) 169 IR 201 per Cameron FM (at [83]);(c) a proceeding is to be regarded as ‘vexatious’ where:(i)it is instituted with the intention of annoying or embarrassing the person against whom the proceeding is brought; or(ii)it is brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which it gives rise; or(iii)irrespective of the motive of the litigant, the proceeding is so obviously untenable or manifestly groundless as to be utterly hopeless: Singh v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] FCA 833; (2011) 282 ALR 56 per Bromberg J (at [14]-[15]), applying Von Reisner v Commonwealth [2009] FCAFC 97; (2009) 177 FCR 531 per Siopis, Cowdroy and Reeves JJ (at [27]); and(d)‘vexatiousness’ is a quality of the proceeding rather than a litigant’s intention, so that the question is not whether the proceedings have been instituted vexatiously but whether the legal proceedings are in fact vexatious: Rana v Commonwealth [2013] FCA 189 per Mansfield J (at [43]).
Ratio Decidendi
Legal Principle Established
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