Scott & Anor v Justice of the Federal Court of Australia & Ors [2011] HCATrans 69
[2011] HCATrans 69
[2011] HCATrans 069
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M12 of 2011
B e t w e e n -
RALPH SCOTT
First Plaintiff
SOPHIE SCOTT
Second Plaintiff
and
JUSTICE OF THE FEDERAL COURT OF AUSTRALIA
First Defendant
JUSTICE OF THE FEDERAL COURT OF AUSTRALIA
Second Defendant
AUSTRALIAN HUMAN RIGHTS COMMISSION
Third Defendant
COMMONWEALTH OF AUSTRALIA
Fourth Defendant
Application for an order to show cause
HAYNE J
TRANSCRIPT OF PROCEEDINGS
AT MELBOURNE ON TUESDAY, 22 MARCH 2011, AT 2.15 PM
Copyright in the High Court of Australia
__________________
MRS S. SCOTT appeared in person and on behalf of the plaintiffs.
MS P.J. HEFFERNAN: If it please your Honour, I appear on behalf of the fourth defendant. (instructed by Australian Government Solicitor)
HIS HONOUR: Yes. The first three respondents have filed submitting appearances, I believe.
MS HEFFERNAN: That is correct.
HIS HONOUR: Now, Mrs Scott, I have received from you and have read the submissions of the plaintiffs on the application for an order to show cause. That is the document of 21 March 2011. I have also looked at the submissions of the Commonwealth in response to the plaintiffs’ application for an order to show cause. That is a document of 17 March 2011. Have you seen that document?
MRS SCOTT: Yes, your Honour.
HIS HONOUR: Yes. You may find it easier, Mrs Scott, if you come to the lectern. I have also on the file an affidavit by you sworn on 15 March 2011. Ms Heffernan, I take it there is no objection to my receiving that affidavit, is there?
MS HEFFERNAN: No, your Honour.
HIS HONOUR: Yes, thank you. I have also various affidavits of service to which I do not think we need to make special reference, but I have also an affidavit of yours, Mrs Scott, of 1 February 2011. Again I take it there is no objection to my receiving that?
MS HEFFERNAN: No, your Honour.
HIS HONOUR: Yes, thank you. Of course, there is then the originating process, the application for an order to show cause, and again I have read that. That is what I have, that is what I have read. Is there any other document that you think I should read or have read before you begin what you want to say?
MRS SCOTT: Yes. There is also summons of the plaintiffs dated 15 March 2011.
HIS HONOUR: Thank you. Let me just make sure that I have that. That is document 13 in the file. Yes. That is your summons in which you seek, amongst other things, to raise a fourth and fifth ground in your application for an order to show cause and that you should be permitted to rely on the affidavit of yours sworn on 15 March 2011. Yes, I have that document. Now, do I have all the documents I should have and are there any other documents that I should read?
MRS SCOTT: Your Honour has got all the documents.
HIS HONOUR: Thank you. Now, as you know, Mrs Scott, the Commonwealth says that I should dismiss the application. That, I think, is the issue to which you should direct what you want to say. The Commonwealth says I should stop the action at once. What do you have to say about that subject matter?
MRS SCOTT: The plaintiffs have applied for the writ of mandamus against the first defendant and for a writ of certiorari against the first defendant and the second defendant. The first test that the Court should consider is the test whether there is a jurisdictional error made by the first defendant and the error made by the second defendant. There is jurisdictional error if the decision-maker makes a decision outside the limits of the functions and powers conferred on him or her or does something which he or she lacks power to do. Jurisdictional error may manifest itself in a number of ways and the plaintiffs say that the jurisdictional error has been shown in the submission of plaintiffs dated 21 March 2011, paragraphs 2 to 23.
The next test is whether the Court should in the Court’s discretion grant the writ of mandamus and certiorari. There are different tests for certiorari and for mandamus. The test for certiorari is when the applicant is not a stranger, and the plaintiffs are not strangers, then the remedy lies ex debito justitiae in the sense that the order will issue almost as of right and the Court will normally exercise its discretion in the applicant’s favour. The only thing that the Court disentitled for the writ of certiorari is certain disentitled conduct which is not present in the case of this application for an order to show cause.
The rule for mandamus is whether there is more convenient and satisfactory remedy, and the plaintiffs say that for the reasons stated in the plaintiffs’ submissions they did at 21 March 2011 there is no more convenient and satisfactory remedy. I direct your Honour especially to paragraph 25 of the plaintiffs’ submission. The plaintiffs could not apply for special leave against the first defendant and against the second defendant by reason of section 33 of the Federal Court of Australia Act.
HIS HONOUR: That is a proposition, Mrs Scott, that I do not think I need to hear you any further about. I am for the moment prepared to proceed on the basis that you could not apply for leave to appeal to a Full Court of the Federal Court against Justice Marshall’s decision. I am also prepared to proceed on the assumption that you were not able to apply for special leave to appeal to this Court. Do you understand?
MRS SCOTT: Yes, your Honour.
HIS HONOUR: So we can, I think for the moment, subject to hearing what Ms Heffernan may later say, walk past those issues and proceed on the assumption that you could not have taken either of those courses.
MRS SCOTT: I will do that, your Honour. In regard to whether there is or there is not a jurisdictional error, I would like to direct your Honour especially to paragraph 19 of the plaintiffs’ submission where is the short summary of the previous paragraphs that explain in more detail the issue of the jurisdictional error. The conclusion is in paragraph 19 of the plaintiffs’ submission.
HIS HONOUR: Yes, I have that.
MRS SCOTT: For now that is all that the plaintiffs want to say. That concludes the submission of the plaintiffs.
HIS HONOUR: Thank you very much, Mrs Scott. Do sit down. Yes, Ms Heffernan.
MS HEFFERNAN: Your Honour, first I should clarify and apologise, in our submissions of 17 March 2011 we refer to the plaintiffs having or being able to seek leave and obviously that is incorrect upon looking at the legislation. So we concede that ‑ ‑ ‑
HIS HONOUR: Do you accept also that there was no possibility of seeking leave to appeal to the Full Court of the Federal Court against the decision of Justice Marshall?
MS HEFFERNAN: No. Effectively, it is leave to appeal, so we do not take issue with that, your Honour.
HIS HONOUR: Yes. So we can put those issues aside.
MS HEFFERNAN: That is correct. I apologise for that. So we are looking at the substantive application and it is addressed in our submissions of 17 March 2011 and I will not go over those submissions. I note that the plaintiffs have put in submissions in reply to our submissions and yesterday we had not had the opportunity to put in any form of reply, but just addressing those submissions briefly which the plaintiffs’ claim to seems to set out there, their claim for prerogative relief.
Looking at the submissions or the claims by the plaintiffs in their submissions of 21 March 2011, most of those paragraphs in the submission seem to make complaint about the way his Honour Justice North summarised their complaint to the Commission and what was before him and nothing, in our view, really turns on the way he has referred to their complaints. His Honour, for the most part, paraphrased what the plaintiffs had said and no actual decisions were made. He merely summarised those allegations by them and then in the following paragraphs he proceeded to address each and every one of their claims set out in their amended application for review. We say that his Honour did that in a fairly detailed form and found that in relation to each application under the AD(JR) Act there was nothing to respond to.
In relation to the other – the only other comments we make, there are certain cases referred to in paragraph 6. Generally we say we do not ‑ ‑ ‑
HIS HONOUR: I am sorry, which paragraph?
MS HEFFERNAN: On paragraph 6 of the submissions of 21 March 2011. We do not see how these cases are relevant. Tozer is concerned with an action against a bailee for damages and Martin v Osborne is concerned with a case with charges laid against the driver of an unlicensed vehicle. So unless the plaintiffs give submissions in reply, we are not sure how they are really relevant to this proceeding. Again, it is not true that Justice North disregarded their complaint. It is referred to in detail from paragraph 138 onwards, and again at paragraph 137 his Honour noted the impracticability of dealing with each and every one of the claims made by the plaintiffs in their complaint and therefore consideration was confined to the issues of central concern in their complaint.
Finally, in relation to paragraph 27, it was open to the court to conclude that the proceedings constituted an abuse of process having regard to the previous litigation, and I do not think we have anything else to say other that the plaintiffs have not, we say – we submit that the plaintiffs have not made their case for a jurisdictional error by his Honour. The application before Justice North was the application for review as amended from April 2010 and that was the only application which was determined by his Honour in his judgment. So we are not sure why the plaintiffs say that there was an issue of jurisdiction.
HIS HONOUR: I take it you accept, do you, that the case must be very clear indeed before it is summarily terminated?
MS HEFFERNAN: The plaintiffs’ case?
HIS HONOUR: It must be very clear that – the golden expression is that of Mr Justice Dixon in Dey v Victorian Railways Commissioners 78 CLR 62, particularly at 91:
A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.
That would be the appropriate principle, would it not?
MS HEFFERNAN: In fact, your Honour, that is referred to in our submissions. We say, effectively, the plaintiffs are trying to re‑litigate their matter. No doubt it is because they are unable to seek special leave, that this is some other way of re‑agitating the disputes before Justice North and then previously to the Commission and in previous proceedings.
HIS HONOUR: Yes, I see.
MS HEFFERNAN: I did not have anything in particular to add, your Honour. If your Honour has any further questions?
HIS HONOUR: No. Thank you, Ms Heffernan. Now, Mrs Scott, what do you want to say in answer to what the Commonwealth has said?
MRS SCOTT: The first thing is that the errors that your Honour made in determining the decision of the Commission has influenced the further part of the decision under the AD(JR) Act that his Honour made further in the judgment. The cases that are stated in paragraph 6 of our complaint are relevant because the first defendant said in his judgment that he will not look into the facts of the claim complaint that had been presented before the Commission and that have been presented before his Honour and this fact of the claim and complaint contain the statements that the Department of Social Security, the Commonwealth and SSAT has acted against the Social Security Act and acted unreasonable.
The plaintiffs ask specifically the Commission and the court to look at the facts of the claim and complaint and on the basis of the fact of the claim and complaint, our case has merits, should be considered and should not be summarily disposed of. These cases in paragraph 6 refer to the relevance of similar acts that have – similar repetitive acts that the plaintiffs complained of and refer to the circumstantial evidence that should be taken into account by the Commission and by the first defendant and these similar acts and circumstantial evidence has not been taken into account and these facts form the basis of our complaint to the Commission and form the basis of what his Honour Justice North should have considered but he did not.
In regard to paragraph 27, because his Honour Justice North did not consider what was before the Commission and what Commission decided and what his Honour should have decided about the decision of the Commission, he has not decided whether the previous proceeding were or were not adequate and his Honour Justice North did not discharge his duty appropriately, did not review the decision of the Commission appropriately under the AD(JR) Act. Thank you, your Honour.
HIS HONOUR: Thank you very much.
On 1 February 2011, the plaintiffs filed in this Court an application for an order to show cause naming as defendants two Justices of the Federal Court of Australia, namely, Justice North and Justice Marshall, the Human Rights and Equal Opportunity Commission and the Commonwealth of Australia. The first three defendants, which is to say the two named Justices of the Federal Court and the Human Rights and Equal Opportunity Commission, have filed submitting appearances, the Commonwealth appears.
In accordance with the requirements of the High Court Rules 2004, the plaintiffs issued a summons returnable before a Justice specifying the orders which the plaintiff would ask to be made for the further conduct of this proceeding. The Commonwealth submits that I should not make any further direction for the further conduct of the matter, but should dismiss the proceeding summarily.
In order to understand the issues which arise, it is necessary to state some matters of history. It is convenient to take the elements of that history from the record given of them by Justice North in his judgment which is the subject matter of the plaintiffs’ application, namely, Scott v Human Rights and Equal Opportunity Commission [2010] FCA 1323.
In 1993, Mrs Scott, the second plaintiff, applied for a disability support pension. Her application was rejected. An internal review of that decision affirmed the rejection. At the time of those decisions, Mr Ralph Scott, the first plaintiff and husband of Mrs Scott, was receiving a disability support pension. Mrs Scott was receiving a partner allowance until 1 July 1995 when the rules governing that form of benefit were changed.
Mrs Scott applied for a special benefit. That application was rejected. On an internal review of the rejection of the application, it was decided that the benefit should be allowed to her as an interim measure. Mrs Scott applied for review by the Social Security Appeals Tribunal of the refusal to allow her a special benefit and in January 1996 the Social Security Appeals Tribunal affirmed the refusal. But on a subsequent application to the Administrative Appeals Tribunal, it was agreed, and the Tribunal determined, that Mrs Scott was entitled to a disability support pension and that her entitlement to that benefit should date from 28 January 1993.
Since then, Mr and Mrs Scott have instituted various proceedings in the Federal Court of Australia, in the Full Court of the Federal Court of Australia and in this Court arising out of the matters and circumstances that have been briefly described. Those proceedings include: Scott v Secretary, Department of Social Security [1999] FCA 1774, Justice Heerey; Scott v Secretary, Department of Social Security [2000] FCA 1241, Justices Beaumont, French and Finkelstein; Matter No M112 of 2000, Scott v Secretary, Department of Social Security, unreported, High Court of Australia, 10 August 2001, [2001] HCATrans 358, Justices Kirby and Callinan; Scott v Pedler [2003] FCA 650, Acting Chief Justice Gray; Scott v Pedler [2004] FCAFC 67, Justices Gyles, Conti and Allsop; Matter No M83 of 2004, Scott & Anor v Pedler & Ors unreported, High Court of Australia, 14 December 2005, [2005] HCATrans 1002, Justice Crennan and myself.
In May 2006, Mr and Mrs Scott made a complaint to the Human Rights and Equal Opportunity Commission (“HREOC”) that judgments of the High Court and the Federal Court and the actions of Centrelink had violated their human rights as set out in a number of international instruments. HREOC refused to inquire into that complaint and Mr and Mrs Scott then applied to the Federal Court for an order for review of the Commission’s decision. The proceedings were remitted to the Federal Magistrates Court which, on the application of the Commonwealth, dismissed the application as vexatious; see Scott v Human Rights and Equal Opportunity Commission [2007] FMCA 1642, Federal Magistrate Phipps.
Mr and Mrs Scott then sought leave to appeal to the Federal Court from the orders made by the Federal Magistrate. Leave to appeal to the Federal Court was refused by Justice Kenny of that court; see Scott v Human Rights and Equal Opportunity Commission [2007] FCA 2055, on the footing that there was no reason to doubt the correctness of the decision made by the Federal Magistrate.
In 2008, Mr and Mrs Scott again made a complaint to HREOC. That complaint was contained in a letter dated 14 February 2008 to which was attached a document of 33 paragraphs entitled “Facts of the Claim/Complaint”. That annexure, “Facts of the Claim/Complaint” is exhibited to an affidavit of Mrs Scott sworn on 15 March 2011.
An element of the complaint, perhaps its core, was expressed as being that “we – that is to say Mr and Mrs Scott – are asking for investigation of the intention not to recognise physical impairment in 1993 to 1996, abuse of psychiatry in 1993 to 1996, deceit in 1993 and falsification of documents in 1993 re the alleged assessment of the CMO – I interpolate, Commonwealth Medical officer – of zero per cent impairment, the intentional use of force of hunger from rejection of special benefit, hindering the appeal to the SSAT.”
A delegate of the President of HREOC advised Mr and Mrs Scott by letter dated 22 September 2008 that the Commission had decided not to inquire into their complaint. The delegate said that the decision was made under what was then section 20(2)(c)(iii) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth), a provision that empowered the Commission to decide not to inquire into an act if, where some other remedy had been sought in relation to the subject matter of the complaint, the Commission was of the opinion that the subject matter of the complaint had been adequately dealt with. The delegate said that the subject matter of the complaint had been adequately dealt with in prior litigation instituted by Mr and Mrs Scott. Mr and Mrs Scott then applied to the Federal Court of Australia for an order for review of this decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and for relief under section 39B of the Judiciary Act 1903 (Cth).
The Commonwealth, as a respondent to that application, applied for an order summarily dismissing the proceeding. On 2 December 2010, Justice North made that order; see Scott v Human Rights and Equal Opportunity Commission [2010] FCA 1323. An application by the Commonwealth for orders under Order 21 of the Federal Court Rules relating to vexatious litigants was adjourned to a later date. Mr and Mrs Scott were ordered to pay the Commonwealth’s costs of the proceeding. Mr and Mrs Scott sought leave to appeal against the order of Justice North. On 13 December 2010, Justice Marshall refused that leave with costs and published reasons for that decision on 17 December 2010; see Scott v Human Rights and Equal Opportunity Commission [2010] FCA 1427.
As I indicated at the commencement of these reasons, on 1 February 2011, Mr and Mrs Scott commenced proceedings in this Court by an application for an order to show cause in which they sought certiorari to quash the substantive orders made by Justice North and the orders made by Justice Marshall, together with mandamus to compel the Federal Court to hear and determine their application for review and for relief under section 39B of the Judiciary Act. In addition, Mr and Mrs Scott sought a stay of the order for costs made by Justice North “until the reasonable time after the present proceeding is concluded.” The grounds on which this relief is claimed were described in the application that was filed in the following terms:
1. The First Defendant failed to hear and determine the legality of the decision of the Commission not to continue to investigate the Plaintiffs’ central concerns of the complaint that were identified by the Commission, in relation to the social security claim for a disability support pension (“DSP”) and for a special benefit (“SB”), as:
(a)the decision by the Commonwealth not to recognise Mrs Scott’s impairment from 1993 – 1996;
(b)the SSAT’s [Social Security Appeals Tribunal] decision relating to the extent of Mrs Scott’s impairment;
(c)the abuse of psychiatry from 1993 to 1996.
2. The First Defendant failed to hear and determine the legality of the decision of the Commission not to continue to investigate the Plaintiffs’ subject matter of the complaint, which was stated by Plaintiffs as:
(a)the intentional use of force of hunger from the rejection of SB [no motive stated],
(b)the application of unreasonable restrictions
(i)in regard to the rejection of SB,
(ii)in regard to hindering the appeal to the SSAT,
(iii)in regard to the claim for a DSP,
(c)the intention of the Commonwealth that is to be determined from the number of similar acts and from the whole circumstantial evidence.
3. The outcome of this proceeding will determine whether the Plaintiff’s Application for an Order of Review VID 1020 of 2008 and Application for Leave to Appeal VID 1063 of 2010 were or were not vexatious proceedings.
By their summons returnable today, the plaintiffs seek leave to rely, in addition to the grounds that are stated in the application for an order to show cause as it was filed, on additional grounds, namely:
4. The First Defendant acted in excess of jurisdiction purportedly given by the Administrative Decisions (Judicial Review) Act 1977 by determining the legality of a decision that was foreign to the decision of the Commission made on 22 September 2008;
5. The Second Defendant erred in law by upholding decisions of the First Defendant that were made with the erroneous assumption and denial of jurisdiction.
It is convenient to proceed on the assumption that the plaintiffs’ seek to agitate these further grounds without pausing to examine whether leave to grant the amendment sought should be given.
In response to the Commonwealth’s submission that the proceeding should be summarily terminated, Mr and Mrs Scott have filed detailed submissions identifying how and why, in their submission, their claim raises arguable issues to be tried. In those submissions, Mr and Mrs Scott contend that the jurisdictional errors made, principally by Justice North, though I suspect also by Justice Marshall, are sufficiently identified in 22 numbered paragraphs. In the course of oral argument, Mrs Scott, who spoke on behalf of both plaintiffs, said that paragraph 19 gave a short summary of the complaints which they would make. That paragraph reads as follows:
The First Defendant –
I interpolate, Justice North –
failed to decide about the admitted by the Department use of working force from the rejection of SB that the Plaintiffs asked to be determined. The First Defendant failed to decide about the claimed by the Plaintiffs unreasonableness of decisions of the CMO, Department and the SSAT and about the claimed by the Plaintiffs intention from the repetition of acts and from the whole circumstances. Plaintiffs complained to the Commission about the decisions of the Commonwealth and its agencies [plural]. Facts of the Claim/Complaint clearly identify these agencies as: (1) CMO, (2) Department and (3) SSAT. The Commission noted the complaint against the SSAT. The First Defendant unreasonably excluded the scrutiny of decisions of the CMO and the SSAT from the central concerns of the Plaintiffs’ complaint. Nowhere in the Facts of the Claim/Complaint are the formulations resembling the ones formed by the First Defendant at [136] of the decision dated 2 December 2010.
Accordingly, so the plaintiffs submit in paragraph 22 of their written submissions:
For the above reasons the First Defendant did not make the order of review of the decision of the Commission on the complaint that was presented to the Commission, but on the wrong, subjective central concerns of the complaint. The First Defendant misapprehended the nature of his functions and powers given to him by the Administrative Decisions (Judicial Review) Act 1977. That is the jurisdictional error: see Craig v South Australia (1995) 184 CLR 163 at [177].
As is apparent from both paragraphs 19 and 22 of the written submissions of Mr and Mrs Scott, a complaint which they make, perhaps an important if not the central complaint they make, about the reasons for judgment given by Justice North concerns the manner in which his Honour articulated his understanding of the complaints which Mr and Mrs Scott had made and were then making.
I am not persuaded, however, that it is arguable that any of the matters identified by Mr and Mrs Scott, whether in their written submissions or in the oral submissions advanced today, constituted any jurisdictional error on the part of Justice North or, I would add, on the part of Justice Marshall. That is reason enough to conclude that the proceeding instituted by Mr and Mrs Scott should stand dismissed. I recognise that, as Justice Dixon said in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91:
A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.
I am persuaded that this case is clear and that this is a case in which the Court should intervene summarily to prevent the plaintiffs submitting their case for determination in the appointed manner. In my opinion, the proceeding which has been instituted discloses no arguable basis for any of the relief which is sought and accordingly, should stand dismissed. Yes, Ms Heffernan.
MS HEFFERNAN: Your Honour, the fourth defendant does seek its costs of today. We understand that there was no actual order for submissions, but at the same time we thought it might assist the Court and we did spend time considering the various documentation served by the plaintiffs in this proceeding.
HIS HONOUR: Yes. Have you anything to say, Mr and Mrs Scott, about costs?
MRS SCOTT: No, your Honour.
HIS HONOUR: Thank you. The application for an order to show cause is dismissed with costs. Adjourn the Court.
AT 3.01 PM THE MATTER WAS CONCLUDED
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