Seidler v Royal Melbourne Institute Of Technology and Anor (No.2)
[2016] FCCA 1622
•28 June 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SEIDLER v ROYAL MELBOURNE INSTITUTE OF TECHNOLOGY & ANOR (NO.2) | [2016] FCCA 1622 |
| Catchwords: HUMAN RIGHTS – Whether reasonable adjustments were made – whether the proceedings are vexatious – leave sought to adjourn proceedings – leave sought to continue proceedings – application to continue proceedings refused. |
| Legislation: Australian Human Rights Commission Act 1986 (Cth), s.46PO. |
| Cases cited: Seidler v University of New South Wales (No. 3) [2011] FCA 1330. Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118. |
| Applicant: | KATHRYN SEIDLER |
| First Respondent: | ROYAL MELBOURNE INSTITUTE OF TECHNOLOGY |
| Second Respondent: | OPEN UNIVERSITIES AUSTRALIA |
| File Number: | SYG 632 of 2016 |
| Judgment of: | Judge Street |
| Hearing date: | 28 June 2016 |
| Date of Last Submission: | 28 June 2016 |
| Delivered at: | Sydney |
| Delivered on: | 28 June 2016 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the First Respondent: | Ms R Sweet |
| Solicitors for the First Respondent: | Minter Ellison |
| Solicitors for the Second Respondent: | Mr J Harrowell |
ORDERS
The application for an adjournment is dismissed.
Leave to continue the proceedings is refused.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 632 of 2016
| KATHRYN SEIDLER |
Applicant
And
| ROYAL MELBOURNE INSTITUTE OF TECHNOLOGY |
First Respondent
| OPEN UNIVERSITIES AUSTRALIA |
Second Respondent
REASONS FOR JUDGMENT
(As Corrected)
On 21 March 2016 an application was filed in this Court in its jurisdiction conferred pursuant to s.46PO of the Australian Human Rights Commission Act 1986 (Cth). The application on its face was prolix and largely incomprehensible. The application referred to proceedings before this Court, in matter number SYG 2756 of 2015. Apart from the very broad range of relief that was sought and the overlap with the other proceedings, the grounds of the application appeared to assert contraventions of ss.6, 7, 7A, 7B, 7C, 7D, 8, 21, 22, 26 and 94 of the Sex Discrimination Act 1984 (Cth) as well as breach of provisions of the Disability Discrimination Act 1992 (Cth).
The grounds referred in part to an assisted reproductive technology that the applicant was seeking. The first respondent is a teaching institution in which the applicant was pursuing the degree of juris doctorate. The allegations of statutory breaches were unidentifiable from the application, and the application included allegations of victimisation and referred to conduct that had taken place in other proceedings.
On the first return date of the proceedings, on 21 April 2016, the Court raised with the applicant that the application appeared on its face to be vexatious and that the applicant should consider whether the applicant wishes to amend the application. The Court was informed on the first return date that in another matter before a different judge, consideration was being given as to whether or not the applicant should be the subject of an order under s.88Q of the Federal Circuit Court of Australia Act 1999 (Cth). It was in circumstances where the Court drew the applicant’s attention to the need to refine the proceedings, if they were to be pursued, and the Court made orders on 21 April 2016 standing the matter over to 19 May 2016.
On 19 May 2016, the Court made orders standing the proceedings over for the hearing of any interlocutory application by the respondents for the summary dismissal of the proceedings or for the hearing of any application for leave to continue the proceedings by the applicant if in the other proceedings before the Court the applicant was the subject of an order under s.88Q of the Federal Circuit Court of Australia Act 1999.
On 19 May 2016, the Court again raised with the applicant that the application appeared vexatious and that if the applicant proposed to amend the same she should do so and that the Court would determine on 28 June either whether the application should be the subject of summary dismissal or, depending upon the outcome of the other proceedings, whether the applicant should be granted leave to continue the current proceedings.
On 20 May 2016, a Judge of the Court in proceedings SYG 2756 of 2015 relevantly made orders under s.88Q of the Federal Circuit Court of Australia Act 1999 that the applicant not continue with any proceedings commenced by her in this Court without the leave of the Court.
At the commencement of the hearing on 28 June 2016, the Court identified for the benefit of the applicant that it would hear the applicant’s adjournment application and determine the question of whether the applicant should have leave to continue the proceedings. The applicant confirmed that she understood the nature of the hearing as explained by the Court. The Court explained that it intended to identify the evidence before it and then hear submissions from the applicant and then, depending upon the outcome of the application for leave, hear submissions in relation to costs from the first respondent.
Prior to the hearing of the current application, the Court dealt with a costs issue in respect of a notice of discontinuance that had been filed by the applicant on 20 June 2016 against the second respondent and for reasons given elsewhere made a fixed costs order in relation to that discontinuance in favour of the party against whom the proceedings were discontinued.
The Court identified for the benefit of the applicant that it treated as being in evidence before it the two affidavits filed by the applicant in these proceedings of 21 March 2016 and 26 April 2016 as well as an affidavit by a Dr Armstrong filed by the applicant and that the Court had the benefit of the application that the applicant had filed also on 23 June 2016. The applicant tended a number of documents in support of her application for an adjournment as well as in support of her application for leave to continue the proceedings.
The Court notes that ordinarily an application for leave to institute proceedings would be dealt with under r.13.11A of the Federal Circuit Court Rules 2001 (Cth) on the papers filed. That rule has no direct application, however, to proceedings that are currently on foot. It was for that reason that the Court gave the applicant the opportunity to put submissions as to why the applicant should be given leave to continue the present proceedings or to have the proceedings adjourned. In support of the application for an adjournment the applicant identified that she had sought to appeal the decision of the Court delivered on 20 June 2016 and submitted that this Court should await the outcome of that appeal. No other cogent ground was advanced by the applicant in support of an adjournment.
The applicant did advance the proposition that she wished to engage in a pleading exercise relating to her claim. This was a matter that the applicant had raised on the first return date when the Court had raised with the applicant that it would not be assisted by a pleading but would be assisted by an amended application. It was raised with the applicant again when the matter came back before the Court on 19 May. No amended application was provided by the applicant.
The decision of the Court on 20 May 2016 is taken to be correct and the existence of an appeal is not a sufficient ground to warrant an adjournment. Nothing said by the applicant identified any proper basis upon which an adjournment should be granted in respect of the consideration of the leave application. I am satisfied that it is not in the interests of the administration of justice for the matter to be adjourned and that an adjournment would only unnecessarily increase what are likely to be unrecoverable costs by the first respondent and utilise limited Court time. I also take into account that ordinarily such a leave application would be dealt with on the papers and that these were proceedings interdependent on the other proceedings that the Court had identified as being the subject of a real concern as to whether they were vexatious. It was for these reasons that the application for an adjournment was refused.
In relation to the application for leave to continue the proceedings, the Court heard lengthy submissions from the applicant that in general failed to grapple with the question of whether the current proceedings were vexatious. The applicant identified that the kernel of what she was seeking to pursue was that the first respondent she alleged had not permitted her adjustments, withdrawals or leave from the course she was pursuing so that she could further the assisted reproductive technology program that she was pursuing.
That subject matter of the adjustments, withdrawals or leave from the course the applicant was pursuing was in substance the same subject matter raised by the applicant in relation to allegations of breach of the Disability Discrimination Act 1992 (Cth) before the Court in the proceedings of SYG 2756 of 2015. The Court tried to take the applicant to the breadth of the orders that appeared on their face to go beyond any legitimate cause of action that could potentially be identified.
The applicant appeared to accept that the proceedings in their current form were the subject of deficiencies. In the course of argument the applicant foreshadowed that she wished to confine her pleadings solely to the issue of whether she was the subject of discrimination in relation to adjustments, withdrawals or leave in relation to the course she was pursuing. The difficulty in that regard is that there is nothing in the application that properly identifies any conduct of a nature that could be said to give rise to an arguable case of discrimination under the Sex Discrimination Act 1984. The further difficulty is that the overlap with the other proceedings reflects an abuse of process and misconceived proceedings.
The applicant appeared to accept that there was embarrassing and irrelevant material in the application, including, for example, references to whether she could shut her suit jacket and observations that she alleged another judge of this Court had witnessed and could support. The application also made broad allegations in relation to victimisation, bullying and harassment that lacked any identifiable content or substance. The application also sought to maintain alleged contraventions of the Disability Discrimination Act1992 that overlapped with the other proceedings in the other Court.
The proceedings also made irrelevant allegations about the bailment of the applicant’s gametes and embryos. The Court also raised with the applicant the complaint that was made to the Australian Human Rights Commission that founded the basis for the proceedings in this Court. That complaint on its face was also largely incoherent and incomprehensible. The complaint referred to conduct since the terminated complaint of 15 July 2015 as well as to conduct involving officers of the respondent and alleged false claims and complaints about a student conduct board.
In relation to the complaint by the student conduct board against the applicant in respect of an allegation of high risk and general misconduct the applicant conceded that her email communications with officers of the first respondent had been inappropriate. The Court takes into account the principles and caution identified in Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118, and, in particular [24]-[25] and [59]-[60] in considering whether or not the application before the Court is vexatious and whether or not it should be the subject of leave to continue the proceedings.
The Court also takes into account the principles identified by Perram J in Seidler v University of New South Wales (No. 3) [2011] FCA 1330 that the order made that the applicant must obtain leave is not designed to punish the applicant, but rather to shield other litigants and the Court itself from being adversely affected by wasteful and misconceived process.
The Court takes into account that the requirement for leave in the present case is a curtailment of the important civil right to litigate. The Court is satisfied that the current application before the Court fails to identify any arguable cause of action and that the proceedings are on their face vexatious and are not such as should be the subject of a grant of leave to continue the proceedings. In these circumstances, the Court orders that leave to continue the proceedings is refused:
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 6 July 2016
CORRECTIONS:
1.Reasons for Judgment: Page 4, Paragraph 12, Line 11 – delete “independent of” and insert “interdependent on”
0
2
0