Turner v State of Victoria (Dept. of Human Services)
[2010] FMCA 920
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TURNER v STATE OF VICTORIA (DEPT. OF HUMAN SERVICES) & ANOR | [2010] FMCA 920 |
| HUMAN RIGHTS – Two claims with same date of lodgement – whether abuse of process – whether claims could have been included in first claim – whether second claim has claims of a different legal character only. |
| Federal Magistrates Court Rules2001, rr.8.02, 13.10(c) Australian Human Rights Commission Act1986 (Cth), s.46PO(3)(b) Federal Magistrates Act1999, s.39(3) |
| Applicant A321 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 306 Charles v Fuji Xerox Australia Pty Ltd (2000) 105 FCR 573 Crvenkovic v La Trobe University [2009] FCA 374 Dye v Commonwealth Securities Limited (No 2) [2010] FCAFC 118 Grigor-Scott v Jones (2008) 168 FCR 450 Johnson v Gore Wood & Co (a firm) [2002] 2 AC 1 Lancet & Lancet [2008] FMCAfam 525 Rana v Commonwealth of Australia [2008] FCA 907 Ridgeway v The Queen (1995) 184 CLR 19 SZAJB v Minister for Immigration and Citizenship [2008] FCAFC 75 Travers v State of New South Wales [2000] FCA 1565 |
| Applicant: | JOSHUA TURNER (BY HIS NEXT FRIEND, ANJA TURNER) |
| First Respondent: | STATE OF VICTORIA (DEPARTMENT OF HUMAN SERVICES) |
| Second Respondent: | KNOXBROOKE INCORPORATED |
| File Number: | MLG 915 of 2010 |
| Judgment of: | Turner FM |
| Hearing date: | 4 November 2010 |
| Date of Last Submission: | 16 November 2010 |
| Delivered at: | Melbourne |
| Delivered on: | 3 December 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Perkins |
| Solicitors for the Applicant: | Access Law |
| Counsel for the First Respondent: | Ms Benson |
| Solicitors for the First Respondent: | Department of Human Services |
| Counsel for the Second Respondent: | Mr Harrington |
| Solicitors for the Second Respondent: | Lander & Rogers |
ORDERS
The application MLG915/2010 filed 24 June 2010 is dismissed as being an abuse of process.
Costs follow the event.
The respondents are to file and serve within seven days schedules of the costs they seek, plus supporting submissions.
The applicant is to file and serve within a further seven days, submissions in response to both respondent’s submissions.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 915 of 2010
| JOSHUA TURNER (BY HIS NEXT FRIEND, ANJA TURNER) |
Applicant
And
| STATE OF VICTORIA (DEPARTMENT OF HUMAN SERVICES) |
First Respondent
| KNOXBROOKE INCORPORATED |
Second Respondent
REASONS FOR JUDGMENT
By Application in a Case filed on 24 August 2010, the second respondent Knoxbrooke Incorporated Ltd (“Knoxbrooke”) seeks an Order pursuant to r.13.10(c) of the Federal Magistrates Court Rules 2001 (the “Rules”) that the application filed on 24 June 2010 be dismissed on the basis that it is an abuse of process.
The Application in a Case was heard on 4 November 2010. Mr Perkins appeared with Mr Hancock for Joshua Turner (by his next friend, Anja Turner); Ms Benson appeared for the State of Victoria and Mr Harrington appeared for Knoxbrooke.
Mr Perkins submitted on a preliminary point that the Court should refer this matter to the Full Court of the Federal Court or to the High Court. When pressed, he did not pursue the point. The Court notes its power to transfer a matter to the Federal Court pursuant to r.8.02 of the Rules. The Court has had regard to the matters in s.39(3) of the Federal Magistrates Act 1999 and finds no reason to transfer the matter to the Federal Court.
Submissions by Mr Harrington
He argues that this matter is an abuse of process because:
a)It does not assert any new fact or matter occurring after the making of the complaint to the Australian Human Rights Commission (the “Commission”) in matter MLG90/2010 on or about 7 April 2009, or the filing of the MLG90/2010 proceedings in the Court on 22 January 2010.
b)MLG915/2010 replicates the factual assertions contained in the earlier MLG90/2010 proceeding. Accordingly, the allegations in each proceeding of unlawful discrimination arise:
out of the same (or substantially the same) acts, omissions or practices that were the subject of the termination (sic ‘terminated’) complaint”: see s.46PO(3)(b) of the Australian Human Rights Commission Act 1986 (Cth) (the “AHRCA”).
c)Where there is any new assertion in MLG915/2010, that new assertion simply bears a different legal character to a legal claim in MLG90/2010. Given that identical facts are relied upon to ground the legal claims in each proceeding, any new claim bearing a different legal character is properly the subject of an application to amend MLG90/2010: see Katz J in Charles v Fuji Xerox Australia Pty Ltd (2000) 105 FCR 573 at [39] – [40]. Put simply, the applicant needs only one vehicle, not two.
Mr Harrington referred to the decision in Grigor-Scott v Jones (2008) 168 FCR 450 at [19] about the intent to limit a complaint brought to the Court to the same complaint that was before the Commission. There is no dispute that that is what has happened here.
Mr Harrington then referred to the decision in Dye v Commonwealth Securities Limited (No.2) [2010] FCAFC 118 at [31] and [43] for the same principle referred to in Grigor-Scott.
In Dye at [46] the Full Court referred to the decision in Travers v State of New South Wales [2000] FCA 1565 on the same restriction of limiting the claims before the Court to those raised for consideration by the Commission.
Mr Harrington relied on the above decisions to submit that there is no need for proceeding MLG915/2010 because there is no (new) factual matter asserted in MLG915/2010, which at its highest articulates some further legal claims. He argues that if the applicant seeks to add legal claims he can seek to amend MLG90/2010. The answer of course lies in determining what MLG915/2010 seeks to add to the applicant’s case.
The file in MLG90/2010 shows that the amended complaint to the Commission covered the time period to 31 July 2009 (Notice of Termination, p.3), and that the complaint was terminated on
26 November 2009.
The file in MLG 915/2010 shows that the complaint in MLG90/2010 was lodged with the Commission on 8 April 2009; and that the complaint in MLG 915/2010 was lodged on 31 July 2009, and terminated by the Commission on 29 April 2010. Mr Perkins submits that MLG915/2010 is dated 11 January 2010 (which is correct) however, it was lodged on 31 July 2009 (p.1 of Attachment B to the Application to the Court). The Court must decide the matter on the material before it. Mr Perkins stated that:
“the cut-off date, on both applications, are the dates of lodging of the complaints” (Transcript (“T”) p.30, l.8).
The complaint in MLG915/2010 was lodged on 31 July 2009. The amended complaint in MLG90/2010 covered until 31 July 2009.
Mr Harrington submits that there is nothing to be gained by the applicant having two applications and that everything being agitated against the State of Victoria is agitated in MLG90/2010 (T p.13, l.30).
Mr Harrington referred to the letter from Access Law to his client on
2 July 2010 (p.98 of the Affidavit of Susannah Palmer sworn 23 August 2010) which explained the reason for MLG915/2010 as follows:
The reason for this 2nd Application is that the Federal Magistrates’ Court’s jurisdiction is limited to the matter that the AHRC dealt with: Crvenkovic v La Trobe University [2009] FCA 374. As the Applicant alleges ongoing discrimination, it is necessary to bring fresh proceedings so as to confer the Court with jurisdiction to deal with the complaint up to the most current time practicable.
In Crvenkovic (supra) Justice Tracey referred at [3] to the decision of Justice Katz in Charles v Fuji Xerox Australia Pty Ltd (supra):
in which his Honour held (at 580) that s.46PO(3) prevented a complainant from relying, in a proceeding in the Court, on any act of unlawful discrimination which occurred after the relevant complaint had been lodged with the Commission.
Justice Tracey followed that decision and made a direction accordingly.
Ms Benson adopted the submissions of Mr Harrington.
Mr Perkins submitted as to Crvenkovic (supra) that it is “confronting to lawyers that when a proceeding on (sic “for”) damages is issued and it is not possible to get damages in respect of things that post date the lodging of the complaint”. Be that as it may, that is the effect of the AHRCA. Mr Perkins admitted that MLG915/2010 doesn’t allege any different facts; it’s just put in place to cover damage after the lodging of the first complaint (T p.20, l.4). However that ignores the fact that the Amended Complaint in MLG90/2010 covered up to 31 July 2009, which was the date MLG915/2010 was lodged. This distinguishes the present case from Crvenkovic which does not relate to the filing of a second complaint.
The application in MLG90/2010 was lodged with the Commission on
8 April 2009, and the applicant “amended the Complaint to extend the time period covered to include up to the date of the request of the amendment ie up to 31 July 2009” (Notice of Termination, Attachment “A” p.2). MLG915/2010 was lodged on 31 July 2009. The cut-off dates in the amended complaint in MLG 90/2010 and in the complaint in MLG915/2010 are the same.
Applying the reasoning in Crvenkovic and Charles, the applicant cannot rely on any act of discrimination in either matter that occurred after 31 July 2009.
The Court accepts the submission by Mr Harrington that MLG915/2010 essentially replicates the factual assertions agitated in MLG90/2010. (Second Respondents’ Outline of Argument on Application to Strike Out [10] to [14]).
In the Notice of Termination in MLG915/2010 the delegate stated:
You have lodged an earlier complaint on behalf of Mr Tuner which appears to have exactly the same subject matter of this complaint.
MLG915/2010 therefore does not cover acts of discrimination outside those alleged in MLG90/2010.
The Court accepts the submission by Mr Harrington that “the only point of textual difference between MLG90 and MLG915 is the legal character of the claims made in each proceeding” (Second Respondents Outline at [12] and [20]).
The decision by Justice Katz in Charles (set out in Crvenkovic (supra) at [6]) explains how claims of a different legal character than were claimed in the application can be pursued.
Rule 13.10(c) of the Rules provides that:
The Court may order that a proceeding be stayed, or dismissed generally…, if the Court is satisfied that:
(c) the proceeding or claim for relief is an abuse of the process of the Court.
In SZAJB v Minister for Immigration and Citizenship [2008] FCAFC 75 Justice French (as he then was) stated at [37]:
The Federal Magistrates Court, like the Federal Court, has an implied incidental power to prevent abuse of its processes. There are many ways in which the processes of a court may be abused. One way involves the use of the procedures of the court to try to relitigate controversies which have already been decided. The Court prevents misuse of its procedures by the doctrines of res judicata and issue estoppel and their extension by analogy to issues which ought reasonably to have been litigated in original proceedings: Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1980-1981) 147 CLR 589. The power of the courts to prevent abuse of their processes extends beyond the strict limits of those doctrines. It is of long standing. As Lord Halsbury said in 1889:
My Lords, I think it would be a scandal to the administration of justice if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same case again. ...
I believe there must be an inherent jurisdiction in every Court of Justice to prevent such an abuse of its procedure and I therefore think that this appeal must likewise be dismissed.
“A defendant should not be vexed twice in the same matters”: Johnson v Gore Wood & Co (a firm) [2002] 2 AC 1 House of Lords at page 2.
“…the claim to re-litigate the same application for relief is an abuse of process within the meaning of that term discussed by Mason CJ and Deane and Dawson JJ in Walton v Gardiner [1992] HCA 12; (1993) 177 CLR 378 at 393”: Applicant A321 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 306 per Wilcox J at [19].
It is an abuse of process to not raise issues in initial proceedings and then raise them in subsequent proceedings: Rana v Commonwealth of Australia [2008] FCA 907 per Lander J at [58].
“The jurisdiction of a superior court in such a case of abuse of process was described by Lord Diplock in Hunter v The Chief Constable of the West Midlands Police (1982) AC 529 at [536] as
the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right thinking people.”
The following passages are extracted from Lancet & Lancet [2008] FMCAfam 525 per Federal Magistrate Reithmuller:
“In Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27, Gleeson CJ, Gummow, Hayne and Crennan JJ said:
6. … In Walton v Gardiner[15], the majority, Mason CJ, Deane and Dawson JJ, accepted as correct the passage in Hunter[16] in which Lord Diplock spoke of "the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people". His Lordship went on to describe as "very varied" the circumstances where "abuse of process" can arise[17]. It will be necessary to return to that consideration later in these reasons.
7. In Hunter[18], Lord Diplock disavowed the use of the word "discretion" in describing the exercise of the power to prevent abuse of process. Thereafter, in R v Carroll[19], Gaudron and Gummow JJ observed that the use of the term "discretion" in this context indicates no more than that, although there are some clear categories, "the circumstances in which proceedings will constitute an abuse of process cannot be exhaustively defined and, in some cases, minds may differ as to whether they do constitute an abuse". They added[20]:
"It does not indicate that there is a discretion to refuse a stay if proceedings are an abuse of process or to grant one if they are not. However, as with discretionary decisions, properly so called, appellate review of its exercise looks to whether the primary judge acted upon a wrong principle, was guided or affected by extraneous or irrelevant matters, mistook the facts, or failed to take into account some material consideration."
In Ridgeway v The Queen (1995) 184 CLR 19 at 74 -75, Gaudron J explained[32]:
"The powers to prevent an abuse of process have traditionally been seen as including a power to stay proceedings instituted for an improper purpose[33], as well as proceedings that are 'frivolous, vexatious or oppressive'[34]. This notwithstanding, there is no very precise notion of what is vexatious or oppressive or what otherwise constitutes an abuse of process. Indeed, the courts have resisted, and even warned against, laying down hard and fast definitions in that regard[35]. That is necessarily so. Abuse of process cannot be restricted to 'defined and closed categories'[36] because notions of justice and injustice, as well as other considerations that bear on public confidence in the administration of justice, must reflect contemporary values and, as well, take account of the circumstances of the case[37]. That is not to say that the concept of 'abuse of process' is at large or, indeed, without meaning. As already indicated, it extends to proceedings that are instituted for an improper purpose[38] and it is clear that it extends to proceedings that are 'seriously and unfairly burdensome, prejudicial or damaging'[39] or 'productive of serious and unjustified trouble and harassment'[40]."
Earlier, in Rogers v The Queen (1994) 181 CLR 251 at 286, McHugh J observed[41]:
“Although the categories of abuse of procedure remain open, abuses of procedure usually fall into one of three categories: (1) the court's procedures are invoked for an illegitimate purpose; (2) the use of the court's procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court's procedures would bring the administration of justice into disrepute.”
The Court must take account of the actual circumstances of the alleged abuse of power in each case: Ridgeway v The Queen supra at [37].
Mr Perkins referred to Orders made in other matters as follows:
·Order the consolidation of two proceedings
: Walker v State of Victoria (P)VID829/2008 Justice Tracey 2 June 2009; Crvenkovic v La Trobe University (P)VID559/2008 Justice Tracey 31 July 2009; Davis v State of Victoria (P)VID897/2008 Justice Gray
4 August 2009; Benic v Department of Education & Early Childhood Development (State of Victoria) (P)VID248/2009 Justice North 30 October 2009; and Abela v State of Victoria (Department of Education & Early Childhood Development) (P)MLG1380/2008 Turner FM 30 November 2009
·Order that the matter be heard and determined together
: Woodward v State of Victoria (Department of Education & Early Childhood Development) (P)VID830/2008 Justice Gordon
21 August 2009; and Wade v State of Victoria (Department of Education & Early Childhood Development) (P)VID257/2009 Justice Bromberg 16 April 2010.
It has not been shown that any of the Orders above obtain to the same circumstances as in these proceedings.
The Court finds that where the matters in MLG915/2010 are repetitive of and could have been included in MLG90/2010 it is oppressive for the respondent’s in MLG915/2010 to have to deal with both applications.
The making of claim MLG915/2010 in this Court is an abuse of the process of this Court.
“A defendant should not be vexed twice in the same matters”: Johnson v Gore Wood & Co (supra)
The Court Orders that application MLG915/2010 is dismissed as being an abuse of process.
The Court orders that costs follow the event.
The respondents are to file and serve within seven days schedules of the costs they seek, plus supporting submissions.
The applicant is to file and serve within a further seven days, submissions in response to both respondents submissions.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Turner FM
Date: 3 December 2010
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