FEDERAL COURT OF AUSTRALIA

Sheikholeslami v Brungs [2006] FCA 933

PRACTICE AND PROCEDURE – Application to dismiss applicant’s claim –power of the Court to control its proceedings to prevent abuse of process - applicant in default of Court orders – applicant’s response to subpoena oppressive – no specifics of claim provided – indemnity costs

Human Rights and Equal Opportunities Commission Act 1986 (Cth) s 46PO

Federal Court Rules O 35A r 3(1)

Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388

Walton v Gardiner (1993) 177 CLR 378

Wu v Avin Operations Pty Ltd [2006] FCA 36

Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2004] FCA 1718

Brown v Zomba Music Publishers Australia Pty Ltd [2004] FCA 324

ROYA SHEIKHOLESLAMI v MICHAEL BRUNGS AND UNIVERSITY OF NEW SOUTH WALES

NSD 757 OF 2005

TAMBERLIN J

SYDNEY

28 JULY 2006

THE COURT ORDERS THAT:

1.         The respondents’ Motion to dismiss the applicant’s claim is granted and the proceeding is dismissed.

2.         The applicant is to pay the costs of the respondent in the main proceedings on a solicitor-client basis.

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

REASONS FOR JUDGMENT

1                     The applicant on 17 May 2005 filed an application under s 46PO of the Human Rights and Equal Opportunities Commission Act 1986 (Cth) seeking an apology and damages in respect of loss and detriment caused to her while employed by the University of New South Wales.  The application makes claims in respect of alleged discriminatory acts during the period from 2000 to 2004 for mental anguish, for defamation, for loss of opportunity for advancement, for distress and for costs.

2                     The matter has had a long history and in the light of this history the respondents seek an order dismissing the applicant’s claim.  The respondents’ application is brought pursuant to O 35A r 3(1) of the Federal Court Rules which empowers the Court to dismiss proceedings where the applicant is in default of Court orders, and also under O 20 r 2 on the ground that the proceedings are an abuse of process or frivolous or vexatious.  On the hearing to dismiss the proceeding the applicant was represented by counsel.

3                     Since the commencement of the proceedings in May 2005, there have been eleven directions and interlocutory hearings and repeated failures by the applicant to cooperate in bringing the matter to a hearing. The applicant has also made several applications to the Court devoid of merit or substance.  On 23 September 2005, the applicant was ordered to provide particulars of her claim by 14 October 2005. On 17 October 2005, the applicant refused to provide the particulars requested and filed an affidavit contending that the letter of request was not “a legal document.” In particular, she refused to give details of compensation sought, to provide an expert report, to specify alleged defamatory statements, to identify work done since October 2004, or to identify acts of discrimination alleged.  There was no justification for, nor substance in, the applicant’s grounds for refusal.  The applicant was again requested to provide particulars after this refusal but failed to do so.  In order to progress the matter, the first respondent then decided to file a Defence without first obtaining particulars.  There was no satisfactory explanation advanced by the applicant for refusing to provide the particulars requested. 

4                     On 25 November 2005, the parties were ordered to provide limited categories of discovery by 16 December 2005.  The applicant did not do so.  The second respondent, the University of New South Wales, filed a Defence on 4 January 2006.

5                     On 16 December 2005, the applicant filed an affidavit which claimed that she did not possess, and had never had possessed, any document required to be discovered.  This assertion has since been demonstrated to be clearly untrue, as the applicant has now produced over 10,000 pages of documentation.  The applicant submitted that she believed the documents to be in possession of the respondents and that she therefore did not have to discover them.  Again, this is clearly not tenable.  It appears from material subsequently produced on subpoena that in fact there were many documents which come within the classes called for in the discovery categories that should have been discovered and were not discovered. 

6                     On 16 February 2006, the Court granted leave to the respondents to issue a subpoena since the applicant had refused to give discovery. The Court dismissed an application by the applicant to strike out the respondents’ discovery request.

7                     On 24 February 2006, the applicant refused to produce the documents that were the subject of the subpoena. On 10 March 2006, I dismissed the applicant’s Motion alleging that there was no proper discovery by the respondents and ordered her to pay costs. As mentioned earlier, the applicant finally produced in response to the subpoena a CD-Rom which I am informed contained in the order of 10,000 pages of material.

8                     The documents on the CD-Rom were produced in response to the same categories as set out in the original discovery order, in respect of which the applicant had earlier made a false affidavit. The PDF file saved on the CD-Rom was produced was “locked,” meaning that the some 10,000 pages of documentation included in this file were available only in a “Read Only” format and could not be printed from a computer. Moreover, the CD-Rom was accompanied by a letter from the applicant asserting that the CD-Rom produced only on the condition that its contents were not uplifted. On 3 April 2006, leave was granted to the respondents to uplift the documents on the CD-Rom so they could be examined. The documents were not classified or selected in any systematic way. From the evidence available, it appears that a significant proportion of the documents were not responsive to the subpoena. This was pointed out in a letter from the respondent’s solicitors to the applicant dated 11 April 2006. 

9                     On 21 April 2006, I made orders striking out the applicant’s Notice to Admit Facts dated 12 April 2006, which was made on a totally untenable basis.  I rejected the applicant’s application for leave to serve a subpoena and ordered that the applicant not be permitted to take further interlocutory steps without leave of the Court.  I also confirmed my previous order of 10 March 2006 that the applicant file and serve all her evidence by 28 April 2006.  On that date, the applicant swore an affidavit in response to this order that simply listed several paragraphs each referring to a bundle of documents relevant to a particular year.  A typical paragraph is as follows:

‘2.        Annexed and marked “A” is the Applicant’s evidence pertaining to material generated in 1995.’ 

10                  The remaining ten paragraphs were in similar form, taking the matter up to 2005 in annual increments.  No annexures were attached to the affidavit.

11                  On 1 May 2006, the applicant enclosed by way of service the annexures to the affidavit of 28 April 2006 which were presented in the form of four lever arch volumes of material. The annexures comprised simply bundles of documents for each year.

12                  It is obviously not possible for the respondent to prepare a case in response to this material in any meaningful way.  Within this material there is no reference to any conversation or factual context which identifies a specific instance of discrimination on any proscribed ground. Nor does the affidavit refer to the verification of any of the material or indicate of the relevance of any particular documents or records.  In other words, there is no indication as to what the mass of material provided with the affidavit relates to.  This “affidavit” and its annexures are vexatious on their face and clearly do not comply with the Order given by the Court to file evidence.  Despite the fact that the applicant had the benefit of twelve months to formulate and prepare her case, the Court was presented with a mass of unlinked material and no factual exposition of the applicant’s position.  On 18 May 2006, the applicant filed an affidavit which stated that to the best of her knowledge, ability and belief the applicant had complied on time and in accordance with the Federal Court Rules with all Court Orders made in the matter and with all directions given by me.  This is not correct.

THE CASE OF THE RESPONDENTS

13                  The respondents’ solicitor has filed affidavits setting out the detailed history of this matter which point to the long and persistent history of non-compliance and non-cooperation by the applicant with the Orders of the Court. 

14                  In relation to the subpoena, referred to above, the respondents note that it was returnable on 24 February 2006 when the applicant appeared and argued that she had not been provided with adequate conduct money to produce the documents. On this occasion, the applicant also stated before the Registrar that she had “lots of documents” to produce. The respondents also point to the fact that when the return of subpoena was stood over until 10 March 2006, the applicant again failed to produce any documents.  The respondents further noted that the CD-Rom finally produced contained some 10,000 pages in a PDF file that had been “locked” so that none of the pages could be printed and examined before leave was granted to the respondents to uplift the documents.  Among these documents only one medical certificate was produced, and there were no medical reports or specialist reports as referred to in the application filed on 17 May 2005.  Furthermore, no pay slips or other records showing income received since November 2004 were provided, and nor were any tax returns or Business Activity Statements (BAS) produced.  On the hearing before me concerning the respondents’ application to dismiss, the applicant stated from the witness box that she did not think bank statements were records of income.

15                  I agree with the respondents that approach taken by the applicant in relation to the subpoena evidences an attitude of deliberate non-cooperation which amounts to oppressive conduct. The way in which this litigation has been conducted by the applicant has rendered it impossible for the respondents to meaningfully address any case against them.  The applicant’s allegations of discrimination and related claims concern a period of some four years, yet there has been a persistent failure to identify any specific incident which has any connection to discrimination.  The respondents’ evidence is that they have incurred large costs in the order of $50,000 to date, leaving aside the stress, inconvenience and other factors which attend involvement in litigation. A significant proportion of this is directly attributable to the way in which the applicant has run this matter.

16                  This is a case in which the principle stated in Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388 is applicable.  In that case, the Full Federal Court dealt with a dismissal application and noted that:

‘The discretion conferred by O 10, r 7 is unconfined, except for the condition of non-compliance with a direction.  As it is impossible to foresee all of the circumstances under which the rule may be sought to be used, it is undesirable to make any exhaustive statement of the circumstances under which the power granted by the rule will appropriately be exercised.  We will not attempt to do so.  But two situations are obvious candidates for the exercise of the power: cases in which the history of non-compliance by an applicant is such as to indicate an inability or unwillingness to cooperate with the court and the other party or parties in having the matter ready for trial within an acceptable period and cases – whatever the applicant’s state of mind or resources – in which the non-compliance is continuing and occasioning unnecessary delay, expenses or other prejudice to the respondent.  Although the history of the matter will always be relevant, it is more likely to be decisive in the first of these two situations.’  (Emphasis added)

17                  In that case, the Court emphasised at 396 that even in circumstances where each non-compliance is minor - and that is not the situation in this matter- the cumulative effect of an applicant’s defaults may satisfy a Judge that an applicant is unwilling to cooperate, or for some reason, is unable to do so.  This conclusion would not readily be reached, but where it is reached, fairness to the respondents can require the summary dismissal of the proceedings. This principle has also been applied in later cases: see for example Wu v Avin Operations Pty Ltd [2006] FCA 36; Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2004] FCA 1718; Brown v Zomba Music Publishers Australia Pty Ltd [2004] FCA 324.  In my view, having regard to the way in which the matter has been conducted by the applicant and the detailed submissions and evidence adduced by the respondents, these principles must apply in the present case.

18                  I am also satisfied that the way in which these proceedings have been conducted amounts to an abuse of process under O 20 r 2 which gives the Court power to control its own processes and to prevent their misuse.  Of course, this is a power which ought to be sparingly exercised. However, in my view, an exceptionally strong and clear case has been made here for application of these principles.  As noted by the High Court in Walton v Gardiner (1993) 177 CLR 378 at 392 - 393, it is important that the Court administers justice with fairness and impartiality to both parties, and does not allow its process to be converted into instruments of injustice or unfairness.

19                  In this case, notwithstanding the submissions of Mr Seymour of Counsel, who appeared for the applicant on this application, I am satisfied that the circumstances are sufficiently special to justify granting the application to dismiss the proceedings.

20                  I am also satisfied that this is a case in which indemnity costs ought to be awarded so as to ensure that the respondents are not out of pocket in relation to the great expense and inconvenience to which they have been subjected as a consequence of the applicant’s conduct in this matter.  I therefore dismiss the proceedings, and order that the applicant in the main proceedings pay the costs of the respondents on a solicitor-client basis.

Associate:

Dated:              28 July 2006