ADMINISTRATIVE LAW – Judicial review – Federal Court Rules r 2.26 – whether District Registrar erred in the exercise of power to refuse to accept documents for filing – application dismissed
Administrative and Constitutional Law and Human Rights
Category:
Catchwords
Number of paragraphs:
60
Counsel for the Applicant:
The Applicant appeared in person
Counsel for the Respondent:
The Respondent filed a submitting notice
ORDERS
VID 683 of 2019
BETWEEN:
AMARA SOMASUNDARAM
Applicant
AND:
TIM LUXTON
Respondent
JUDGE:
MURPHY J
DATE OF ORDER:
28 JULY 2020
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MURPHY J:
The applicant, Amara Somasundaram, seeks review of the decision of a District Registrar and National Judicial Registrar of this Court pursuant to r 2.26 of the Federal Court Rules 2011 (Cth) (the Rules) to refuse to accept documents for filing on the basis that the proposed proceeding constitutes an abuse…
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
AGLC
Somasundaram v Luxton [2020] FCA 1076
Case
[2020] FCA 1076
Decision Date
CaseChat Overview and Summary
The applicant in this case sought leave to appeal against the refusal of the District Registrar to accept her proposed defamation proceeding for filing. The applicant, Ms Somasundaram, had previously been involved in proceedings against the Department of Education and Training, and other defendants, over allegations of bullying and harassment. The Court of Appeal had dismissed her claim, finding it untenable as a matter of law. Ms Somasundaram now sought to bring a defamation proceeding against the judge who dismissed her claim, and other defendants. The primary issue for the Court was whether the District Registrar erred in deciding to refuse to accept the proposed defamation proceeding for filing under r 2.26 of the Federal Court Rules 2011. The Court considered whether the Registrar's decision was an abuse of process or was frivolous or vexatious. The Court found that the Registrar's decision was not an abuse of process and was not frivolous or vexatious. The Registrar had considered the relevant factors and formed a reasonable opinion that the proposed proceeding did not meet the criteria for acceptance for filing.
The Court found that the applicant's proposed defamation proceeding was an abuse of process, as it was an attempt to re-litigate the same issues that had already been decided against her. The Court also found that the proceeding was frivolous and vexatious, as it was based on a misunderstanding of the law and was unlikely to succeed. The Court noted that the applicant had not identified any error of law in the decision of the Court of Appeal, and that the proposed proceeding was an attempt to circumvent that decision. The Court held that the Registrar's decision was not unreasonable and was based on a proper consideration of the relevant factors. The application was dismissed with costs.
Orders
Orders of the court
1. The application be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
For the reasons I explain the application must be dismissed.THE FACTS The proposed defamation proceeding arises from remarks made in the judgment of Misso J dated 15 May 2018 in Somasundaram v Department of Education and Training & Ors (Ruling) [2018] VCC 649 (the Ruling). Relevantly, his Honour said (at [9]), when summarising the applicant’s claim:The Statement of Claim alleges: •That the plaintiff was a teacher employed by the Department of Education and Training. •In paragraphs 6-18, the plaintiff alleges that the other defendants conspired to damage her professional reputation (“the conduct”). •In paragraph 6, she alleges that some of that conduct resulted in her becoming “mentally damaged”. In paragraph 7, she alleges that she then went on to WorkCover. She particularised the conduct that resulted in the mental damage in paragraphs 8 to11, and in particulars subjoined to paragraph 11. …(Emphasis added.)His Honour went on to summarily dismiss the applicant’s claim on the basis that the pleaded cause of action was untenable. The applicant appealed the summary dismissal of her claim to the Victorian Supreme Court of Appeal. In Somasundaram v Department of Education and Training [2018] VSCA 318 at [1]-[10] (Maxwell P, Almond and Macauley AJJA) the Court of Appeal summarised the history of the dispute as follows:[1]The applicant, Ms Somasundaram, is a teacher at a Victorian government school. She is employed by the Secretary of the respondent Department (‘Department’), under the provisions of the Education and Training Reform Act 2006. [2]In November 2010, Ms Somasundaram made a written complaint to the Regional Director of the Department, claiming that:…there has been bullying, harassment, discrimination and unprofessionalism against me since 2008 and it is still continuing.On 24 December 2010, the Regional Director advised Ms Somasundaram that her complaint had been investigated and had been determined to be without substance. [3]Subsequently, Ms Somasundaram made a complaint of discrimination and victimisation to the Victorian Equal Opportunity and Human Rights Commission. She also made a WorkCover claim, based on the psychological effect on her of the alleged bullying and harassment. The claim was accepted and Ms Somasundaram received statutory compensation. Ms Somasundaram was absent from work between June 2011 and November 2013. [4]On 23 January 2015, the Department terminated Ms Somasundaram’s employment. In February 2015, she brought an application for relief from unfair dismissal, pursuant to s 394 of the Fair Work Act 2009. In July 2015 that application was upheld. The Fair Work Commission held that the dismissal was both unjust and unreasonable. In October 2015, the Commission ordered that Ms Somasundaram be reinstated. [5]In July 2017, Ms Somasundaram commenced the proceeding in the County Court which gives rise to the present application. Her originating motion named the Department and 16 individuals as defendants. The cover sheet of the motion contained this statement:NATURE OF CLAIM: Conspiracy to Damage Plaintiff’s Professional Reputation.The attached statement of claim pleaded the fact of the 2010 complaint and alleged that:From 2011 Department personnel started to conspire to damage the plaintiff’s professional reputation.[6]During September and October 2017, there was correspondence between the Department and Ms Somasundaram, and with the County Court, about whether the statement of claim disclosed a cause of action. Ms Somasundaram was invited to consider re-pleading her statement of claim and ― at the request of the Court ― the Department agreed to fund her to obtain independent advice from counsel about her claim. As a result of the advice received, Ms Somasundaram commenced a separate proceeding in the Federal Court under the ‘adverse action’ provisions of the Fair Work Act 2009. [7]Ms Somasundaram’s position throughout was that there was no need to re-plead. Her contention in the Court below, and again in this Court, was that she has a valid cause of action in tort against the defendants, namely, the tort of conspiracy to injure by unlawful means. She contends that all of the elements of that tort are pleaded in her statement of claim. [8]There having been no amendment to the statement of claim, the Department brought on a strike out application. Having had lengthy written submissions from Ms Somasundaram, and having heard argument from her and from counsel for the Department, the judge upheld the application and ordered that the proceeding be dismissed. It is from that order that Ms Somasundaram now seeks leave to appeal.[9]For reasons which follow, we would refuse leave to appeal. In short, there was an incurable defect in the claim which Ms Somasundaram sought to bring. She alleged that the ‘unlawful means’ element of the tort was established by the failure of the Department to treat her complaint of November 2010 as a ‘protected disclosure’ within the meaning of the Whistleblowers Protection Act 2001. [10]The complaint made by Ms Somasundaram could only have attracted the provisions of that Act if she had been alleging some form of ‘improper conduct’ within the meaning of that Act. On no view of her allegations of bullying and harassment did the alleged conduct answer the statutory definition. Accordingly, the claim which Ms Somasundaram clearly identified as the claim she wished to bring was untenable as a matter of law, and the judge was correct to dismiss it.(Footnotes omitted.)
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
I can see no error in the Registrar’s conclusion that no question of substance arises concerning the Constitution or involving its interpretation. CONCLUSION The applicant did not establish that the Registrar erred in deciding to refuse to accept the proposed defamation proceeding for filing pursuant to r 2.26. The application must be dismissed.
Ratio Decidendi
Legal Principle Established
The applicant submitted that four principal issues are relevant for the Court to determine whether her proposed defamation proceeding should be accepted for filing, being:Whether the term “peace, order and good government” in the [Constitution] was significant to the Australian citizens who voted for the Constitution?Whether section 51 xxiv & xxv of the Constitution provide implied rights in regard to processes, judgments, records and judicial proceedings in the Courts of the States?Whether the Constitution provides immunity to those who do not abide by the Constitution?Whether the Defamation Act is bad in law in relation to the Constitution?CONSIDERATION The questions for the Court to decide are not as they were stated by the applicant. The power in r 2.26 is conditioned upon the Registrar reaching a state of satisfaction that the document sought to be filed constitutes an abuse of process or is frivolous or vexatious. As Perram J said in Rahman at [6]:The manner and circumstances in which judicial review of powers subject to the formation of a satisfaction or of an opinion are to be conducted are well-known and usefully, with respect, collected by Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [128]–[137]. His Honour referred, with approval, to the judgment of Gibbs J in Buck v Bavone (1976) 135 CLR 110 at 118–9:In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it erred in one of these ways, or that its decision could not reasonably have been reached. To similar effect Charlesworth J explained in Shaw at [32]:The state of satisfaction to be reached by the Deputy Registrar is not one involving policy or taste. Rather, it is in the nature of an opinion concerning mixed questions of fact and law. Cases may arise under r 2.26 in which the formation of such an opinion involves the making of an evaluative judgment in respect of which reasonable minds may differ. In such cases, an applicant for judicial review may well have difficulty establishing reviewable error affecting the Registrar’s decision. However, where an opinion formed by a Registrar is founded upon an error of law, or based upon an irrelevant consideration, the opinion will not be one that is open to the Registrar to form and the requisite state of satisfaction prescribed under the rule will not have been reached…