FEDERAL COURT OF AUSTRALIA

Simundic v University of Newcastle [2007] FCAFC 144

PRACTICE AND PROCEDURE – appeal from a single Judge of this Court – appeal from interlocutory orders – whether the Court has jurisdiction to entertain appellant’s causes of action – whether conditions precedent to the institution of proceedings under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) made out – appeal dismissed.

Disability Discrimination Act 1992 (Cth)s 13(4)

Evidence Act 1995 (Cth) s 56(2)

Federal Court of Australia Act 1976 (Cth) ss 24 and 31A

Human Rights and Equal Opportunity Commission Act 1986 (Cth)ss46PO and 46PH(2)

Federal Court of Australia Rules 1979 (Cth) O 81 r 5

Carlton & United Breweries Ltd v Castlemaine Tooheys Ltd (1986) 161 CLR 543 cited

Dai v Telstra Corporation Ltd (2000) 171 ALR 348 cited

Lashansky v Bruvecchis Pty Ltd [2005] FCAFC 64 cited

Weatherall v Satellite Receiving Systems Aust Pty Ltd (1999) 92 FCR 101 cited

Zines, L “Federal Associated and Accrued Jurisdiction” in Opeskin B and Wheeler F (eds) The Australian Federal Judicial System (2000)

VESNA SIMUNDIC v UNIVERSITY OF NEWCASTLE

NSD 982 OF 2007

ALLSOP, LANDER AND SIOPIS JJ

31 AUGUST 2007

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

THE COURT:

1                     On 31 May 2007 the applicant in the proceeding before the primary judge filed a notice of appeal against orders made by his Honour on 11 May 2007 dismissing her application and ordering her to pay the respondent’s costs.

2                     The notice of appeal does not particularise any grounds of appeal but merely recites the appellant’s complaints about the respondent’s conduct and the conduct of other parties.

3                     On 29 November 2006 the appellant commenced proceedings in this Court, purportedly under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (HREOC Act), alleging unlawful discrimination by the respondent.  The relief sought on the application is for:

2.         I ask the Federal Court to accept my case:

            – to be transferred from S.C. Registry to Federal Court Registry.

            – my file with all the documents to be moved to F.C.

            – any additional document to be lodge (sic) by email.

3.         My matter with University is about:

            (1)        PERSONAL INJURY

            (2)        DEFAMATION

            (3)        BREACH OF CONTRACT

                                          +

                        During the S.C. Proceeding

(4)       Criminal Conduct of Phillips-Fox that I take University responsible.

4                     The relief seems to have little association with the cause of action under the HREOC Act.

5                     The application was accompanied by a Form 167, required under Order 81 rule 5 of the Federal Court of Australia Rules 1979 (Cth), and an affidavit sworn by the appellant.  In her affidavit, the appellant claimed that she withdrew her case from the Supreme Court of New South Wales because of conduct on the part of the respondent’s solicitors.  She asks that this Court accept her claim.  A reading of the application, Form 167 and the affidavit reveals only one cause of action raised, namely, a claim under the HREOC Act, notwithstanding a reference to defamation and breach of contract in the application.  The application also sought an order transferring proceedings in the Supreme Court to this Court.

6                     The respondent, by notice of motion filed on 18 December 2006, sought orders that the application be dismissed and the appellant pay the respondent’s costs.  Accompanying the notice of motion was an affidavit of a partner in the firm of solicitors acting for the respondent, which exhibited a number of documents which established the history of the appellant’s complaints in relation to the respondent in the Anti-Discrimination Board of New South Wales, the Administrative Decisions Tribunal, and the Supreme Court of New South Wales.

7                     That history was summarised by the primary judge in [2]-[8] of his reasons:

[2]     It is convenient to outline briefly the history of the applicant's grievance with the University and its legal representatives.  In 1996, the applicant enrolled in a Bachelor of Social Work at the University of Newcastle.  She ceased to be enrolled in 2000.  She did not obtain the qualification.

[3]     The applicant lodged a complaint against the University with the Anti-Discrimination Board of New South Wales (“ADB”) on 7 November 2000.  The complaint concerned, inter alia, things allegedly said and done by certain University employees, in particular, Lianne Flynn, who was a lecturer in the Department of Social Work, and Jo Gaha, the Head of the Department, between August 1998 and August 2000.  One particular incident concerned an email sent by Ms Gaha to the Vice Chancellor in August 1999, and seen by other staff, indicating that she thought the applicant was “clinically disturbed” and posed a risk to staff and students.

[4]      The complaint was referred to the Administrative Decisions Tribunal of New South Wales (“ADT”) after unsuccessful conciliation in the ADB.  On 21 September 2004, the ADT dismissed the complaint: see Simundic v University of Newcastle [2004] NSWADT 206. 

[5]      On 18 October 2004, the applicant commenced proceedings against the University in the Supreme Court of New South Wales.  The amended statement of claim filed 7 April 2005 pleaded causes of action in negligence, contract and defamation, the last of which concerned the email of August 1999.

[6]      On 6 June 2006, Associate Justice Harrison dismissed a motion by the University to have the proceedings summarily dismissed or the statement of claim struck out: see Simundic v University of Newcastle [2005] NSWSC 586.  The applicant was directed to file an application for extension of time.

[7]      On 22 June 2006, James J considered two applications made by the applicant by notice of motion: see Simundic v University of Newcastle [2006] NSWSC 563.  One was an application that the trial be with a jury, and the other an application for an extension of time under the Limitation Act 1969 (NSW).  The University conceded that the cause of action in defamation was not statute barred.  His Honour found that on any view the other causes of action had accrued by the time the applicant ceased to be a student of the University in 2000 and hence that she was out of time.  James J dismissed the application to extend time under the Limitation Act.  The application for a jury was dismissed on the basis that the causes of action in negligence and breach of contract were statute barred, and in the case of the defamation action, the applicable statute, Defamation Act 1974 (NSW), left no scope for her application.

[8]      On 23 October 2006, the applicant's defamation claim was listed before Nicholas J.  On the basis of the applicant's statements and the documents produced by the University, including a facsimile received from the applicant, his Honour concluded that the applicant no longer intended to proceed with the matter and that the appropriate order was to dismiss the proceedings.

8                     The respondent sought dismissal of the application on alternative grounds.  First, on the ground that the proceedings were frivolous, vexatious and disclosed no arguable cause of action; secondly, that the proceedings were an abuse of process given previous applications to the Administrative Decisions Tribunal and the Supreme Court of New South Wales, both of which were previously dismissed; thirdly, that the proceedings were not maintainable under the Disability Discrimination Act 1992 (Cth) (DD Act); fourthly, that the Court did not have jurisdiction to hear the proceedings under the HREOC Act; fifthly, that any causes of action arising in personal injury, negligence and breach of contract were statute barred; and sixthly, to the extent the proceedings were in defamation they were statute barred and, in any event, the Court had no jurisdiction to hear such a claim.

9                     The primary judge found that the Court lacked jurisdiction to entertain the appellant’s proceeding.  He said that no proceeding could be brought under the HREOC Act because an application of that kind could only be made after a complaint to the Human Right and Equal Opportunity Commission (HREOC) was terminated by the President, and the President had given notice under s 46PH(2) of the HREOC Act.  No such notice had been given in this case.

10                  The appellant complained that she had been discriminated against in the Supreme Court by the solicitors for the University and, perhaps, though it is not clear, by officers, judicial and non-judicial, of the Supreme Court.  The primary judge found that this was not a matter that this Court had jurisdiction to entertain because there had been no complaint to the HREOC and, again, no notice had been given by the President.  In any event, these proceedings were against the University and not any other party in the Supreme Court. 

11                  Lastly, the primary judge found that the Court did not have jurisdiction to entertain the claims in negligence, contract and defamation.  For those reasons, he dismissed the appellant’s proceeding.

12                  The appellant’s proceeding was dismissed because the primary judge found that the Court lacked jurisdiction, and therefore it followed that no reasonable cause of action was disclosed.  The order dismissing the proceedings, however, is not a final order: Weatherall v Satellite Receiving Systems Aust Pty Ltd (1999) 92 FCR 101; Dai v Telstra Corporation Ltd (2000) 171 ALR 348.  It is an interlocutory order: Lashansky v Bruvecchis Pty Ltd [2005] FCAFC 64.  Section 24 of the Federal Court of Australia Act 1976 (Cth) provides that an appeal cannot be brought from an interlocutory judgment of the Court constituted by a single Judge unless the Court or a judge gives leave to appeal: s 24(1A).  On 25 July 2007, a Judge of this Court, with the respondent’s consent, granted leave.

13                  The appellant, who was unrepresented on this appeal, was invited by the Court to direct her attention to the primary judge’s reasons for the purpose of demonstrating to the Court error on his Honour’s part.  Apart from stating that his decision was an abuse of process, the appellant was unable to articulate any error on his Honour’s part.  During the hearing of the appeal, the appellant handed up to the Court a number of documents which she invited the Court to receive as evidence.  The documents were put before the Court to show that the appellant had been discriminated against by the respondent whilst attending the respondent’s institution and for the further purpose of demonstrating improper conduct by the respondent’s legal representatives in proceedings brought by the appellant in the Supreme Court of New South Wales.  The Court indicated that it would read the documents and rule on their admissibility.  The documents are not relevant to this appeal and were not relevant in the proceeding before the primary judge. They will not be admitted: s 56(2) of the Evidence Act 1995 (Cth).  An affidavit of the appellant dated 10 July 2007 was read subject to objection.  It was equally, and for like reasons, irrelevant and should be rejected.

14                  The question before the primary judge and on this appeal, was whether the appellant’s proceeding should be dismissed because the appellant has no reasonable prospect of successfully prosecuting the proceedings: s 31A of the Federal Court of Australia Act.

15                  The appellant’s cause of action in the application is identified as a claim under the HREOC Act alleging unlawful discrimination. As already noticed, paragraph 2 of the appellant’s application seeks the transfer of the proceedings in the Supreme Court of New South Wales (which have been dealt with by that Court) to the Federal Court.  She also indicates that her claim includes personal injury, defamation and breach of contract.

16                  The primary judge construed the application as raising a cause of action under the HREOC Act and further causes of action in negligence, contract and defamation.  In our opinion, that was a generous construction of the proceeding.  However, the respondent did not argue that his Honour was wrong to conclude that the further common law causes of action were raised.

17                  In respect of the cause of action under the HREOC Act, his Honour found that the Court had no jurisdiction to entertain the proceeding.

18                  Section 46PO of the HREOC Act empowers a person who has made a complaint to the HREOC, or on whose behalf a complaint to the HREOC was made, to apply to the Court alleging unlawful discrimination by the respondent to the complaint.  However, there are three conditions precedent to the right to bring such a proceeding: a complaint must have been made; the complaint must have been terminated by the President under s 46PE or s 46PH and the President must have given notice to the complainant; and the President must have given notice under s 46PH(2) of the HREOC Act.  The last condition has not been met.  No notice has been given. 

19                  Moreover, although the appellant claimed before the primary judge and the Full Court that she had made a complaint to the HREOC, s 13(4) of the DD Act provides that a complaint cannot be made under the HREOC Act concerning any discrimination dealt with under the DD Act where a person has made a complaint or initiated proceedings under a law of a State or Territory relating to discrimination dealt with by the DD Act.  As the appellant had already lodged a complaint with the Anti-Discrimination Board of New South Wales (which conducted an unsuccessful conciliation) and the Administrative Decisions Tribunal of New South Wales (which dismissed the complaint after a hearing) any purported complaint made to the HREOC was incompetent.  Thus the first condition precedent also cannot be made out.

20                  For these reasons, the appellant cannot maintain any proceeding based on a cause of action under the HREOC Act alleging unlawful discrimination.  The proceeding is not maintainable under the HREOC Act because the conditions precedent to the institution of the proceeding have not been made out and, indeed, cannot be made out.

21                  The primary judge also dismissed the appellant’s proceeding insofar as it raised causes of action in negligence, contract and defamation on the basis that this Court does not have jurisdiction to entertain those causes of action.  If those causes of action were raised, as opposed to being the subject of a request for transfer to this Court, the primary judge was correct if it can be concluded that there has been no proper invocation of federal jurisdiction here: Carlton & United Breweries Ltd v Castlemaine Tooheys Ltd (1986) 161 CLR 543 at 553.  We need not decide the question (in particular in the absence of argument) whether the absence of the satisfaction of the conditions precedent in s 46PO leads to the conclusion that there has been no proper invocation of federal jurisdiction: see Zines L “Federal, Associated and Accrued Jurisdiction” in Opeskin B and Wheeler F (eds) The Australian Federal Judicial System (Melbourne University Press, 2000) pp 294-95.  This is unnecessary for decision because the Supreme Court of New South Wales has already entertained these causes of action and dismissed the actions in negligence and contract as statute-barred and the action in defamation on the appellant’s own motion.  Even assuming these causes of action were raised and even assuming that the Court has jurisdiction to hear them as part of some federal matter, they would be dismissed as an abuse of process.  The primary judge was right to dismiss the proceeding summarily.

22                  The appeal should be dismissed.  The appellant must pay the respondent’s costs.

Associate:

Dated:         31 August 2007