FEDERAL COURT OF AUSTRALIA

Simundic v University of Newcastle [2007] FCA 676

VESNA SIMUNDIC v UNIVERSITY OF NEWCASTLE

NSD 2344 OF 2006

MOORE J

11 may 2007

SYDNEY

THE COURT ORDERS THAT:

1.                  The applications be dismissed.

2.                  The applicant 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

1                     By notice of motion filed 18 December 2006, the respondent, the University of Newcastle, seeks orders that the proceedings instituted by the applicant on 29 November 2006 be dismissed with costs.  The applicant filed a general application (Form 5) and a claim under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) ("HREOC Act") alleging unlawful discrimination (Form 167), together with a supporting affidavit.  The Form 5 application and affidavit state that the applicant withdrew her case from the Supreme Court of New South Wales due to the behaviour of the University's legal representatives and that she wishes to have her case transferred to this Court.  In the Form 5 application, the proceedings are described simply as concerning personal injury, defamation, breach of contract and the conduct of the University's legal representatives for which she claims the University is responsible.  In the Form 167, next to "Describe the discrimination you are complaining of", the applicant has written "PTSD [Post Traumatic Stress-Disorder] that University ignored" and "abuse; defamation".  The Disability Discrimination Act 1975 (Cth) ("DD Act") is identified as the relevant Act which renders unlawful the conduct about which the applicant complained. 

Background

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.

The motion

9                     The grounds upon which the University sought to have the proceedings dismissed pursuant to the notice of motion were as follows.  First, it contended that the proceedings were frivolous, vexatious and disclosed no arguable cause of action. 

10                  Secondly, the proceedings were an abuse of process given the previous applications made by the applicant on the same grounds to the Administrative Decisions Tribunal of New South Wales ("the ADT") and the Supreme Court, both of which were ultimately dismissed. 

11                  Thirdly, to the extent that a claim was made under the DD Act, the University submitted that the proceedings could not be maintained by reason of s 13(4) of the DD Act.  Section 13(4) provides that a complaint cannot be made under the HREOC Act concerning 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 under the DD Act.  The University relied on the previous proceedings in the ADT. 

12                  Fourthly, to the extent that a claim is made under the HREOC Act, the Federal Court had no jurisdiction as the applicant had not previously made a complaint to the Human Rights and Equal Opportunity Commission ("HREOC") and no such complaint had been terminated by the President of HREOC pursuant to s 46PO of the HREOC Act.  Indeed, the applicant would be prevented from making any such complaint to HREOC by s 13(4) of the DD Act due to her previous application to the ADT. 

13                  Fifthly, to the extent that a claim is made for personal injury, negligence and breach of contract, the proceedings are statute barred.  Further, the University submitted that it was an abuse of process to attempt to bring the same claims in this Court which had no jurisdiction to hear such claims. 

14                  Sixthly, to the extent that a claim is made in defamation concerning the email of August 1999, the proceedings were statute barred and this Court had no jurisdiction to hear any such claim. 

Applicant's submissions

15                  The applicant made both written and oral submissions.  The applicant's written submissions addressed the grounds identified by the University.  In relation to the contention that the proceedings were frivolous, vexatious and disclose no arguable cause of action, the application submitted that her claims about the Department of Social Work at the University were the truth and that the abuse she had suffered had ruined her life.  In relation to the University's submission that the proceedings were an abuse of process due to previous applications to the ADT and Supreme Court having been dismissed, the applicant stated that her discrimination complaint to this Court concerned discrimination between September 2004 and October 2006, whereas her application to the ADT concerned conduct occurring before the Supreme Court proceedings.  The applicant's written submissions also outlined in more detail the nature of her complaints of discrimination against officers of the Supreme Court and the University's solicitors. 

16                  In relation to the University's submission that this Court had no jurisdiction in relation to the claim under the HREOC Act, the applicant submitted that she had in fact complained to HREOC in 2001, but that the Commission did not want to be involved and did not respond to her allegation. 

17                  In relation to the University's contention that the applicant's claims for personal injury, negligence and breach of contract are statute barred and an abuse of process, the applicant stated that this was "incorrect".  She submitted that the discrimination she suffered in the Supreme Court had an effect on the success of her claims for personal injury, negligence and breach of contract.  She stated also that a jury would have been satisfied that her claims were not statute barred, allowing her to receive damages. 

18                  In relation to the defamation claim, the applicant submitted that this claim would have been appropriately addressed in the Supreme Court if not for the action of the University's solicitors.  The applicant also explained the circumstances in which she came to consent to the dismissal of the defamation proceedings in the Supreme Court, which were, briefly, her lack of confidence in the process and the University's alleged failure to comply with orders of the Court.

Consideration

19                  This Court has no jurisdiction to entertain the proceeding brought by the applicant.  It is to be remembered that these proceedings are brought against the University and no one else.  It is convenient to deal firstly with the claim under the HREOC Act.  An application of this kind can only be made to this Court when a complaint is terminated by the President of HREOC and a notice is given under s 46PH(2) of the HREOC Act in relation to the termination: see s 46PO(1) of the Act.  Plainly, a complaint in the relevant sense must be made before it can be terminated by the President of HREOC.  The applicant stated that she did in fact make a complaint to HREOC in 2001.  However, the effect of s 13(4) of the DD Act is that having already lodged a complaint with the ADB in 2000, the applicant was not entitled to make a complaint to HREOC at that later date.  This is the likely explanation as to why HREOC did not accept her complaint, although there was no evidence on this point.

20                  The applicant has stated that the discrimination claims the subject of these proceedings concern discrimination in the Supreme Court, rather than discrimination by the University which was the subject of the complaint to the ADB and the proceedings in the ADT and Supreme Court.  However, this distinction does not overcome the hurdle imposed by s 46PO(1) of the HREOC Act.  There has been no suggestion that the applicant has at any time complained to HREOC about the discrimination she allegedly suffered in the Supreme Court.  In the absence of such a complaint having been made, and the requirements of s 46PO(1) having been met, this Court has no jurisdiction to deal with these claims.

21                  To the extent that these proceedings raise causes of action in negligence, contract and defamation, the University's contention that the Court has no jurisdiction to deal with these aspects of the proceedings must be accepted.  The applicant, who was unrepresented, did not make any meaningful submissions as to the source of any jurisdiction this Court might have to determine these aspects of her application and none can be discerned.  In the absence of any matter of substance engaging jurisdiction to deal with the application under the HREOC Act the accrued jurisdiction has not been enlivened.  It is unnecessary to consider the argument that causes of action in negligence and contract are statute barred.

22                  The applicant has made an application that a jury determine her case.  It is clear that the immediate issues in this case concern the Court's jurisdiction.  The applicant's case fails at the outset.  Unfortunately for the applicant, this cannot be overcome by her evident conviction, no doubt earnestly held, that she has been ill treated by the University and its legal representatives.

23                  The applications should be dismissed with costs.

Associate:

Dated:         11 May 2007