FEDERAL COURT OF AUSTRALIA

Shumack v Commissioner, Australian Federal Police [2005] FCA 1476

PRACTICE AND PROCEDURE – application for summary disposal under Federal Court Rules O 20 r 2 – frivolity – abuse of process – no reasonable cause of action – previous litigation – proceeding dismissed – possibility of order pursuant to O 21 raised.

Federal Court Rules, O 20 r 2, O 21 r 1, r 2

PETER JAMES SHUMACK v COMMISSIONER, AUSTRALIAN FEDERAL POLICE

ACD 19 OF 2005

GYLES J

13 OCTOBER 2005

SYDNEY (VIA VIDEO LINK TO CANBERRA)

THE COURT ORDERS THAT:

1                     The proceeding be dismissed.

2                     The applicant pay the costs of the respondent. 

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

REASONS FOR JUDGMENT

1                     This is the hearing of a motion brought by the respondent seeking orders that the applicant's proceedings be dismissed pursuant to O 20 r 2 of the Rules of Court, with costs. 

2                     The proceeding commenced by application filed on 4 August 2005.  At the same time, an affidavit was filed purporting to set out some underlying facts.  I do not set out the terms of the application.  Suffice to say that it clearly does not comply with the rules of Court in relation to the form of an application.  It does not properly identify any cause of action known to the law.  It consists of a statement of what might be called grievances.

3                     When the matter came before me on the last occasion I indicated to the applicant that the form of the document was not appropriate and that if it remained in that form it was very likely that it would not survive.  It does remain in its original form and I am quite satisfied that no reasonable cause of action is disclosed and that the proceeding, on its face, is vexatious and an abuse of the process of the Court.

4                     Furthermore, the evidence relied upon by the respondent indicates that very similar complaints, or complaints at least including those included in this application, had been sought to be pursued by the applicant in the Supreme Court of the Australian Capital Territory, and that successive statements of claim have there been struck out.  It is therefore submitted that there is an additional basis on which it may be held that the proceedings are an abuse of process.  There appears to be much substance in the latter point although it is not strictly necessary for me to come to any view about that because of the hopelessly inadequate form of the application itself.

5                     The applicant expresses a series of grievances commencing with his dismissal in 1997 which had led to proceedings in the Industrial Commission and before the High Court.  Indeed, it was the appearance before McHugh J in the High Court which was the start of a narrative of events which the applicant endeavours to rely upon in this case.

6                     The applicant has made it clear that he will endeavour to persist with his grievances, and, of course, that is his right. If he can isolate causes of action known to the law, and express them in a way which can be recognised as such, and which can be dealt with by a respondent then it may be that he will be able to pursue claims here or in some other court. However, that has not occurred to date.  Meanwhile, the successive proceedings are vexing to a respondent.  The fact that the respondent happens to be a public officer does not mean that they are any the less vexing or that the incurring of costs is any more justified than would otherwise be the case.

7                     I draw the applicant’s attention to the Rules of Court relating to vexatious litigants. Under O 21 r 1, orders can be made which have the effect that a person cannot institute or continue a proceeding without the leave of the Court if a proceeding is vexatious and that person is habitually and consistently and without reasonable cause institutes other vexatious proceedings in the Court or any other court.  Order 21 r 2 deals with vexatious litigants arising out of proceedings in this Court alone.  I do not propose to make any order under O 21 at the moment but I do warn the applicant that that power is there, and if he persists in bringing proceedings which are vexatious in form then it is very likely that steps will have to be taken to prevent it.  Every time proceedings are filed which are not in proper form and are, in that sense an abuse of process, it does impose vexation upon the respondent to those proceedings, let alone the time and money taken up so far as the resources of the Court are concerned.

8                     All I can say is that the applicant, if he is at all able to, should get some legal guidance as to whether he does have a cause of action arising out of his grievances and, if so, to put the matter into proper form. 

9                     The order of the Court is that the proceeding is dismissed and the applicant is to pay the costs of the respondent. 

Associate:

Dated:              18 October 2005