Shumack v Commonwealth of Australia - [2009] FMCA 428

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 26^th 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 27^th 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 23^rd 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 28^th January 2009.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] FMCA 428
Decision Date: 8 May 2009

CaseChat Overview and Summary

Shumack, the applicant, filed an application against the Commonwealth, the respondent, seeking various reliefs related to alleged breaches of the Australian Constitution. The application was heard in the Federal Court of Australia, presided over by Justice Gilmour. The central dispute involved the applicant's contention that certain actions of the Commonwealth were unconstitutional and that his rights under the Constitution had been violated.

The court was tasked with determining whether the Commonwealth's actions constituted breaches of the Constitution and, if so, what remedies were appropriate. The issues included the interpretation of constitutional provisions, the scope of the Commonwealth's powers, and the extent to which the applicant's rights were affected. The court also had to consider the procedural aspects of the application, including the admissibility of certain evidence and the relevance of the material filed by the parties.

Justice Gilmour dismissed the applicant's application, finding that the Commonwealth had not breached the Constitution and that the applicant's claims were not substantiated. The court held that the applicant had failed to demonstrate a constitutional breach, and therefore, no relief was warranted. The judge also ruled on the procedural matters, determining that the material filed by the parties was to be accessed only by them, with any other access requiring leave from the court. The court ordered the applicant to pay the respondent's costs as agreed or taxed, and directed that all filed material remain confidential unless otherwise authorised by the court.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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