Shumack v Commonwealth of Australia
[2009] FMCA 428
•8 May 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SHUMACK v COMMONWEALTH OF AUSTRALIA | [2009] FMCA 428 |
| INDUSTRIAL LAW – Application for summary dismissal – application of test “no reasonable prospects of success”. |
| Crimes Act 1914 (Cth), s.30K Federal Court of Australia Act 1976 (Cth), ss.31A, 31A (2) Federal Magistrates Act 1999 (Cth), ss.17A, 17A (2) Workplace Relations Act 1996 (Cth), ss.170CE (7), 650 (2), 663, 673, 847 (4) Human Rights Act 2004 (ACT) |
| Clement v Minister for Finance & Deregulation [2009] FMCA 43 Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 246 ALR 465 Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251 White Industries Australia Ltd v Federal Commissioner of Taxation (2007) 160 FCR 298 |
| Applicant: | PETER JAMES SHUMACK |
| Respondent: | COMMONWEALTH OF AUSTRALIA |
| File Number: | CAG 35 of 2008 |
| Judgment of: | Neville FM |
| Hearing date: | 19 February 2009 |
| Date of Last Submission: | 19 February 2009 |
| Delivered at: | Canberra |
| Delivered on: | 8 May 2009 |
REPRESENTATION
| Advocate for the Applicant: | Mr Shumack in person |
| Counsel for the Respondent: | Mr Vermeesch |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
That the Application filed 26 August 2008 is dismissed.
That the Applicant is to pay the Respondent’s costs as agreed or taxed.
That the material filed by the parties in this matter is to be accessed only by the parties. Leave must be sought if any other person seeks to access this material, and in that event, the matter is to be listed before the Court.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAG 35 of 2008
| PETER JAMES SHUMACK |
Applicant
And
| COMMONWEALTH OF AUSTRALIA |
Respondent
REASONS FOR JUDGMENT
A. Introduction
Mr Peter Shumack filed an application in this Court on 26th August 2008 seeking relief in relation to what he describes as his constructive dismissal from Environment Australia. Among many conflicting statements, he contends that the events that give rise to his claim date back to the early to mid 1980s.
Mr Shumack’s original affidavit of 27th August 2008 offers a significantly wider range of matters than as set out in his Application which, he contends, ground relief (including “consequential damages”) from this Court. Mr Shumack submits that (a) he has been the subject of criminal and political conspiracy, (b) that a “contract for murder” was taken out against him on 23rd March 2005, (c) he has been the subject of victimisation, (d) he has been criminally defamed, (e) he was under “some form of overt covert surveillance” that was instigated by, among others, the Chief Minister of the ACT, Mr Stanhope, and (f) the Department (i.e. “Environment Australia”) and its staff had instigated against him “systematic extortion and blackmail between 1983 and 1997.” Mr Shumack also contends that his various claims are now somehow linked to, or under consideration by, the World Criminal Court and the World Court of Justice.
A number of these allegations and submissions were repeated and amplified in a further affidavit filed by Mr Shumack on 28th January 2009. As just indicated, both affidavits essentially contain Mr Shumack’s submissions, as well as what he claimed to be the factual material on which he relied. By and large, this “material” comprised assertion only.
In this later affidavit Mr Shumack added significantly – in diversity and number – to his range of complaints. Among other matters raised in this affidavit were “gender discrimination”, various breaches of the Human Rights Act 2004 (ACT), bias and prejudice by or on behalf of the Australian Government Solicitor’s office, cyber terrorism, forced incarcerations, “covert taped interrogations”, sexual discrimination, extortion, “double blackmail”, and much else besides. He also maintains that the High Court’s rejection of his appeal (HCA C6/2006) has been referred to the World Criminal Court.
B. Procedural History
The Application first came before this Court on 12th December 2008. The original application named the “Department Head” of “Environment Australia” as the Respondent. In the course of the few Court events, then and since, the Respondent has properly been named as the Commonwealth of Australia. I should also note that the Respondent’s solicitors twice wrote to Mr Shumack inviting him to discontinue his application and alerted him to the adverse consequences in relation to “costs” in the event that he proceeded with his claim and it was dismissed. Copies of those letters were before the Court.
At the Directions hearing on 12th December 2008, the Respondent renewed its offer not to seek any costs from Mr Shumack if he discontinued his Application. Mr Shumack did not accept this offer and has pursued the litigation.
C. Jurisdictional Matters
Mr Shumack claims that this Court has jurisdiction to entertain the diverse relief he seeks by virtue of, among other things, s.30K of the Crimes Act 1914 (Cth). That section provides:
30K Obstructing or hindering the performance of services
Whoever, by violence to the person or property of another person, or by spoken or written threat or intimidation of any kind to whomsoever directed, or, without reasonable cause or excuse, by boycott or threat of boycott of person or property:
(b) compels or induces any person employed in or in connexion with the provision of any public service by the Commonwealth or by any Department or public authority under the Commonwealth to surrender or depart from his or her employment;
(c) prevents any person from offering or accepting employment in or in connexion with the provision of any public service by the Commonwealth or by any Department or public authority under the Commonwealth;
(d) obstructs or hinders the transport of goods or the conveyance of passengers in trade or commerce with other countries or among the States;
(e) compels or induces any person employed in or in connexion with the transport of goods or the conveyance of passengers in trade or commerce with other countries or among the States to surrender or depart from his or her employment; or
(f) prevents any person from offering or accepting employment in or in connexion with the transport of goods or the conveyance of passengers in trade or commerce with other countries or among the States;
shall be guilty of an offence.
Penalty: Imprisonment for 1 year.
On 11th December 2008, the Respondent, more correctly named as the Department of the Environment, Water, Heritage and the Arts, filed an Application in a Case pursuant to which the Respondent sought orders dismissing the proceedings under s.17A(2) of the Federal Magistrates Act 1999 (Cth). The Respondent also sought an order for costs on a solicitor/client basis.
Section 17A of the Federal Magistrates Act 1999 (“the FMC Act”) deals with “summary judgment.” Although the Respondent seeks relief only under s.17A(2), it is convenient to set out the section in full. It provides:
17A Summary judgment
(1) The Federal Magistrates Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is prosecuting the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.
(2) The Federal Magistrates Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is defending the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
This section does not limit any powers that the Federal Magistrates Court has apart from this section.
Section 17A of the FMC Act is essentially identical to s.31A of the Federal Court of Australia Act 1976 (Cth). Section 31A(2) of that Act, provides:
31A Summary Judgment
(2) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is defending the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
The Respondent’s “summary judgment” application was heard on 19th February 2009. The Applicant was self-represented. Mr Vermeesch, from the Australian Government Solicitor, appeared for the Respondent. Although technically the applicant in the summary judgment application, for present purposes I will continue to refer to the parties as per the principal or substantive proceedings.
D. Further Background Matters
A very brief overview of a number of other matters, not yet canvassed, is appropriate. They relate to various factual issues but, in my view, more significantly to a number of court events that relate to Mr Shumack’s pursuit, over many years, for redress in relation to his original claim for constructive dismissal. As I comprehend his unfortunately convoluted and consistently complex but disjointed papers, and his wildly diverse submissions, he also contends that there are on-going, cumulative matters which, presumably, at some stage he will seek to ventilate.
A very convenient summary, which was not disputed by Mr Shumack at the hearing of the summary dismissal application in February 2009, was provided in the Respondent’s Outline of Submissions, filed on 5th February, 2009. In large measure, what follows is taken from the first part of those submissions.
i)On 24th October 1997, Mr Shumack was voluntarily made redundant from his employment as a landscape architect with Environment Australia. Mr Shumack consented, in writing, to this redundancy on 14th October 1997.
ii)On 3rd February 2003, Mr Shumack filed an application with the Australian Industrial Relations Commission (“the AIRC”) seeking relief for the alleged termination of his employment.
iii)On 3rd April 2003, that application was dismissed by the AIRC as being beyond the period prescribed (21days) in the then s.170CE(7) of the Workplace Relations Act 1996. The AIRC refused to grant an extension of time for the lodging of the application.
iv)Mr Shumack sought leave from the Full Bench of the AIRC to appeal this decision. On 22nd July 2003 the Full Bench dismissed his application and refused leave to appeal.
v)Mr Shumack applied to the High Court seeking writs of certiorari, mandamus and prohibition against the Full Bench of the AIRC. McHugh J dismissed that application on 29th September 2004. His Honour’s reasons, and the transcript of the proceedings before him, were before the Court. Mr Shumack sought to appeal McHugh J’s decision; that application was dismissed by the High Court on 26th May 2005.
vi)Mr Shumack filed a second application with the AIRC on 31st May 2007 in relation to his alleged termination of employment. On 31st July 2007, pursuant to s.673 of the Workplace Relations Act 1996, the AIRC refused to accept this further application.
Details of and extracts from each of the proceedings just outlined, namely the two sets of proceedings in the Australian Industrial Relations Commissions, and (as previously indicated) before the High Court (McHugh J), are annexed to an affidavit of Mr Greg Hall, from the Respondent’s solicitors, filed on 11th December 2008.
In particular, I note the following observations from McHugh J which his Honour made in the course of Mr Shumack’s application for various constitutional writs. His Honour said:
HIS HONOUR: Well, I know, but you have just got to try and start and put it behind you. Look, I have been a Judge of this Court for almost 16 years and I was a Court of Appeal judge for four years and I was a Queen’s Counsel and a barrister for 23 years before that and I have seen litigation destroy people. It is the worst thing that can happen to people, to get involved in litigation. You were five years out of time under the Act before you brought your application and they refused it. Your legal remedies are at an end. There is nothing you can do about it at a legal level.
You can deal with it at a political level, make representations and matters of that nature, but, Mr Shumack, take my advice, just put this behind you. I have studied your papers and legally you will not get anywhere in this particular case. If there was even a barely arguable case, I would send it down to the Federal Court to investigate it, but when I say barely arguable, I mean barely arguable about this jurisdictional question, but there is not. It is so clear – it would be pointless sending it down to the Federal Court. I would be just wasting their time. Ordinarily, this Court is too busy to be hearing these cases, so we just send them down almost automatically to the Federal Court, but there is just nothing I can do. So I am afraid that is it.
I know you are going to be very disappointed, but there is really nothing this Court can do, and having studied the papers, there is nothing I can see that you can do about getting your employment back.
McHugh J gave his formal judgment, beginning at Transcript (p.8). His Honour recounted the multiple attempts by Mr Shumack to obtain legal redress for his complaints. His Honour concluded: (at p.11)
The threshold for obtaining an order nisi is low, in that an applicant must only demonstrate an arguable case. However, on the materials before me, as I pointed out to him, Mr Shumack has no prospects of success in relation to his application for writs of mandamus, certiorari and prohibition. Consequently, his application does not disclose any arguable claim for constitutional relief against the respondents. His application seeks primarily to challenge the merits of the decision to terminate his employment and the merits of the decision of Commissioner Deegan. They are not matters that are relevant to the issue of the constitutional writs.
There is nothing that indicates that the Commission did not perform its duty. There are thus no grounds upon which the decision of the Commission could be quashed by this Court, nor are there any grounds on which the Court could make an order for the Full Bench to rehear the application. As I have indicated, the Full Bench has not exceeded its jurisdiction, and its decision appears to have been made in accordance with its statutory function under section 45 of the Act.
In these circumstances, an application for an order nisi must fail. It is unnecessary to consider whether, if I thought there was an arguable case, the matter should be remitted to the Federal Court or heard by this Court. Accordingly, in all the circumstances, I must dismiss the application. Accordingly, the application is dismissed.
E. Respondent’s Jurisdictional Arguments
In large measure, the respondent’s arguments for its summary dismissal application were founded upon either (a) the Court not having jurisdiction, for example under the Crimes Act (as Mr Shumack alleges or assumes) and or (b) that Mr Shumack had not satisfied relevant pre-requisites, for example under the Workplace Relations Act 1996 (Cth), that would entitle the Court to hear an application for unlawful termination. On the basis of particulars provided under each of these general headings, the Respondent contended that the Court should summarily dismiss the application. And in any event, for these reasons and more generally (such as expressed by McHugh J), Mr Shumack’s prospects of success, so it was submitted, were such that s.17A should apply.
I will deal very briefly with the jurisdictional matters. I will not deal with all areas canvassed in the comprehensive submissions on behalf of the Commonwealth.
First, I accept the submission that the Commonwealth Parliament has determined the scope of this Court’s jurisdiction. This is also to say that this Court is not a court of general jurisdiction. More particularly, this Court does not have jurisdiction under the Crimes Act 1914 (Cth). Accordingly, Mr Shumack’s attempt to found his application in this Court under s.30K of the Crimes Act cannot succeed.
Secondly, I accept the Commonwealth’s submission that the Court has no jurisdiction under s.663 of the Workplace Relations Act. For that section to be enlivened, Mr Shumack must have received a certificate under s.650(2) of that Act. He has not done so. And as McHugh J observed, all other legal avenues had been exhausted, and quite some time ago, not least in the Australian Industrial Relations Commission.
Mr Shumack’s other contentions under the Workplace Relations Act, specifically under s.847(4), also have no foundation and cannot be considered by the Court.
F. Summary Disposal: General Principles
In a recent case, I considered and summarised the principles applicable in summary disposal applications under s.17A of the Federal Magistrates Act (“the FMC Act”). That case is Clement v Minister for Finance & Deregulation [2009] FMCA 43. The principles are set out at [100] – [107]. I will not repeat what I said there. The principal cases to which I referred were the decisions of Lindgren J in White Industries Australia Ltd v Federal Commissioner of Taxation (2007) 160 FCR 298, and the Full Court decision in Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 246 ALR 465. I emphasise and respectfully agree with Gordon J’s analysis of s.31A of the Federal Court of Australia Act 1976 at [122] – [135] and the six principles that her Honour articulates. Those principles, in my view, are applicable to applications in this Court under s.17A of the FMC Act.
To these I would only add Kirby J’s general observations in Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251. His Honour’s comments are in the context of the relevant High Court Rules but otherwise they are without reference to any particular statutory regime of summary disposal. Omitting internal citations, for current purposes Kirby J’s helpful principles in relation to summary dismissal applications are as follows (at [14]):
* “It is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld, including against Government and other powerful interests.”
* “To secure such relief, the party seeking it must show that it is clear, on the face of the opponent’s documents, that the opponent lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious.”
* “An opinion of the Court that a case appears weak and such that it is unlikely to succeed, is not, alone, sufficient to warrant summary termination. Even a weak case is entitled to the time of a Court. Experience teaches that the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an apparently unpromising cause into a successful judgment.”
* “…if there is a serious legal question to be determined, it should ordinarily be determined at a trial for the proof of facts will sometimes assist the judicial mind to understand and apply the law that is invoked….”
* “The guiding principle is…doing what is just.”
Having regard to (a) the evidence in these proceedings, and in particular the lack of it from the applicant, (b) the significant history of unsuccessful attempts by Mr Shumack to prosecute his claims before a wide range of courts regarding similar or the same issues raised, and using similar or the same materials that have been used, in these proceedings, and (c) the fact that Mr Shumack’s materials raise an astonishing range of assertions none of which are supported by any credible evidence, in my view, the requirements of s.17A(2) of the Federal Magistrates Act 1999 are clearly and strongly made out.
In my view, Mr Shumack has no reasonable prospect of successfully prosecuting the proceedings (either in part or in full) as set out in the material he has put before the Court. I can only respectfully adopt and endorse McHugh J’s advice to Mr Shumack to leave litigation alone before it consumes him and his life completely. I fear that it may already have done so to a significant degree.
In these difficult financial times, I am also particularly conscious of the Court’s responsibility to utilise its very scare resources prudently. Given the amount of judicial resources that have already been expended on Mr Shumack’s various endeavours to pursue his claims, I am concerned that this Court not disburse further resources when there is no reasonable prospect of success.
Finally, while I accept the valiant attempts by the Respondent’s solicitors to encourage Mr Shumack to discontinue his Application, I do not think that justice would be served any the better by acceding to their application for indemnity costs.
The orders will be: application dismissed; the applicant (Mr Shumack) to pay the respondents costs – either agreed or taxed.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Neville FM
Associate: J. Curtis
Date: 8 May 2009
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