Trau v President of the Anti Discrimination Board of NSW

[2008] NSWSC 315

CITATION:	Trau v President of the Anti Discrimination Board of NSW [2008] NSWSC 315
HEARING DATE(S):	8 April 2008
JUDGMENT DATE :	9 April 2008
JUDGMENT OF:	Malpass AsJ
DECISION:	Proceedings dismissed; plaintiff to pay the costs of the proceedings; costs on an indemnity basis.
CATCHWORDS:	ADMINISTRATIVE LAW - application for relief in the nature of Writ of Mandamus for relief against police - police discretion - discretionary remedy
LEGISLATION CITED:	Supreme Court Act 1970
CATEGORY:	Principal judgment
CASES CITED:	Commissioner of Police of the Australian Federal Police [2001] FCA 1747; 118 FCR 308 Ex parte Blackburn [1968] 2QB 118
PARTIES:	Jerzy Trau (Plaintiff) President of the Anti Discrimination Board (First defendant) Commissioner of Police (NSW) (Second defendant)
FILE NUMBER(S):	SC 30041/07
SOLICITORS:	Plaintiff in person IV Knight, Crown Solicitor (First defendant) IV Knight, Crown Solicitor (Second defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

Associate Justice Malpass

Wednesday 9 April 2008

30041/07 Jerzy Trau v President of the Anti-Discrimination Board & Anor

JUDGMENT

1 HIS HONOUR: These proceedings came before Whealy J last year (on 12 December 2007). His Honour delivered a judgment.

2 At that time, the plaintiff was appearing in person. The first defendant was a submitting party. The matter had been handled on its behalf by Mrs Hartman (a solicitor engaged by the Crown Solicitor). Mr Bhalla (solicitor) was appearing on behalf of the second defendant. He is a senior solicitor also employed by the Crown Solicitor.

3 The relevant material to the date of the judgment is set forth therein in considerable detail. Accordingly, it is unnecessary to repeat much of that material in this judgment.

4 It appears that the plaintiff was dismissed from the University of Sydney towards the end of 1979 and he alleges a failure on the part of the NSW Police Force to complete an investigation into that dismissal (“as a case of conspiracy to pervert the course of justice, fraud and perjury”).

5 The proceedings were commenced by Summons filed on 20 April 2007. At that stage, the first defendant was the only named defendant. The Registrar gave leave to file an Amended Summons.

6 An Amended Summons was filed on 20 July 2007. The second defendant was added as a defendant to the proceedings. The relief claimed therein is as follows:

“1. finished police investigation and referral of the evidence of perjury to the DPP
2. subpoena Martin Flury from the Police Commissioner’s Office and Detective Stuart Hunter from Chatswood Police Station.”

It may be observed that the relief sought therein does not concern the first defendant.

7 The plaintiff sought leave to issue three subpoenaes (to, inter alia, Messrs Flury and Hunter). The Registrar refused a grant of leave.

8 Two Notices of Motion have been filed. The plaintiff seeks a review of the decision of the Registrar. The second defendant seeks summary relief in respect of the Amended Summons.

9 Whealy J dismissed the Notice of Motion brought by the plaintiff. He stood over the Notice of Motion brought by the second defendant. In the judgment, he expressed what he described as a preliminary view “that the plaintiff may have no arguable case”. He reserved the costs of the proceedings before him.

10 The standing over of the second defendant’s Notice of Motion was done at the request of the plaintiff. The plaintiff alleged before Whealy J that there was an agreement with Mr Shaw (the former Attorney-General of this State) to act for him. The purpose of the granting of the adjournment was to enable Mr Shaw to appear for him when the hearing resumed.

11 The further hearing of the second defendant’s Notice of Motion was assigned to me by the List Judge. On 8 April 2008, that hearing resumed. The plaintiff was still acting in person. Again, Mr Bhalla appeared for the second defendant.

12 The file contains a copied letter signed by Mr Shaw and addressed to Mr Bhalla. The letter informs that Mr Shaw does not act for the plaintiff in the proceedings and that the plaintiff has been so informed. A copy of such letter has been tendered and was admitted as Exhibit 2.

13 The relevant principles applicable to the granting of summary relief are well established. Relief is only granted in what might be described as clear cases. The onus rests with the party seeking the relief.

14 The basis upon which the first area of relief is claimed is unclear. Neither the originating process nor the evidence before the Court shed any light on this matter. It was not a matter that was addressed by the plaintiff at any stage during the hearing.

15 The second area of relief has already been dealt with by the Registrar and Whealy J. There has been no appeal from the decision of Whealy J.

16 During the resumed hearing, further evidence was tendered by both parties. Apart from the previously mentioned Exhibit 2, the second defendant tendered a letter dated 1 August 2006 from the then Commissioner of Police (Mr Moroney) to the plaintiff. (It became Exhibit 3.) It had already tendered Exhibit 1 (its tender bundle) before Whealy J. The plaintiff tendered further documents (Exhibits A, B and C).

17 Largely, the second defendant relied on its written submissions which had been earlier placed before Whealy J.

18 The plaintiff addressed the Court at some length (largely, giving what might be described as a history of the matter).

19 As previously mentioned, the present proceedings are part of what has flowed from the dismissal of the plaintiff by the University of Sydney in 1979. His specialty was in marine science and he worked for the University for about five years. He says that although he was promised permanent employment, he was dismissed by the University on the alleged basis of a lack of money. It seems that he takes the view that this allegation was false.

20 Thereafter, during the lengthy period that has passed, that dismissal has been pursued by considerable activity concerning the plaintiff’s complaint (significantly by way of litigation).

21 There appears to have been unsuccessful litigation in the Industrial Commission. There appears to have been two pieces of unsuccessful litigation in the Administrative Decisions Tribunal (one of them was both at first instance and on appeal). These proceedings appear to have involved pursuit of missing documents (including what is described as the Gillett report). There were unsuccessful defamation proceedings in the Supreme Court. There appears to have been representations made to politicians. There appears also to have been a complaint made to the Ombudsman. Both of these extra-curial activities have also proved to be unproductive.

22 By reason of the lack of success of all of this activity, the plaintiff now finally comes to this Court in these proceedings. He asks this Court to refer the matter to the Police so that they can complete the investigation that commenced in about 1979.

23 Apart from his failure to identify any basis upon which that relief could be granted, there is a lack of evidentiary foundation for the complaints that he makes.

24 Exhibit 3 states, inter alia, that there has been a thorough examination of all material relevant to the matters that the plaintiff has raised. It further states that the result of this examination has revealed that there is insufficient evidence to support any allegation of perjury as alleged by the plaintiff and that there was no basis for requiring the matter to be directed to the Director of Public Prosecutions. The letter concludes with the following:

“NSW Police has devoted very extensive time and resources over a period of some 15 years investigating the matters which have been raised by you on many occasions. I have to advise you that in accordance with the decision not to proceed further, no further correspondence will be entered into in relation to these matters.
Whilst I appreciate that you may not agree with these determinations, I trust that I have clarified the NSW Police position for you.”

25 In response to this letter, the plaintiff tendered Exhibits A and B. Exhibit A is a letter which was written by the plaintiff after receiving Exhibit 2. Exhibit B is a subsequent letter written by the plaintiff to the present Commissioner. It is dated 3 April 2008.

26 I now return to the first area. The second defendant perceives that what is sought may amount to an application for an order in the nature of Writ of Mandamus against the Commissioner (see paragraphs 11 – 19 of its written submissions). It is unnecessary to set out that material herein. A summary will suffice for present purposes.

27 The relief pursued by the second defendant may be granted pursuant to s 69 of the Supreme Court Act 1970 by way of judicial review. The section is headed “proceedings in lieu of writs”. The granting of relief under that provision is discretionary.

28 The second defendant has referred the Court to certain cases (including Ex parte Blackburn [1968] 2QB 118 and Hinchcliffe v Commissioner of Police of The Australian Federal Police [2001] FCA 1747; 118 FCR 308). The cases deal with the questions of the discretion had by the Commissioner of Police and the willingness and/or power had by the Court to intervene in such discretionary matters.

29 In my view, it is clear that the limited basis on which there may be intervention is not present in the case asserted by the plaintiff. I consider that the second defendant has discharged the onus borne by a party seeking summary relief. There are two bases for coming to that view.

30 Firstly, it is clear that the plaintiff has no entitlement either under s 69 or otherwise to relief sought by him in this case. I have earlier dealt with that basis. Secondly, it is clear that even if a different view had been taken on that matter, for discretionary reasons any such entitlement would not be the subject of a grant of relief.

31 The matter is one of considerable antiquity (it arose nearly 30 years ago). Whilst the plaintiff has pursued many other avenues, what has been done does not explain the delay in approaching this Court. His own case suggests that material relied on by him may no longer be available. In all of the relevant circumstances, if there has not been a full inquiry, it may now be futile to take the matter further. Also, I do not consider that any further pursuit of the matter serves the public interest.

32 Accordingly, even if it be assumed that the plaintiff had an entitlement to relief, it seems to me that there are strong discretionary considerations which would lead to a result that such relief would not be granted.

33 In my view, the proceedings are hopeless and the relief sought by the plaintiff is doomed to failure. To allow these proceedings to continue would be an abuse of process.

34 The proceedings brought by the plaintiff are dismissed. The plaintiff is to pay the costs of the proceedings.

35 There is an application that costs be paid on an indemnity basis. As his proposed case is in the category of that which is hopeless and bound to fail, in my view, it is an appropriate case in which costs may be ordered on an indemnity basis. Accordingly, I make such order.

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