FEDERAL COURT OF AUSTRALIA
Lawrance v The Commonwealth of Australia [2007] FCA 1524
Disability Services Act 1986 (Cth)
Evidence Act 1995 (Cth) s 55, s 56, s 135
Federal Court of Australia Act 1976 (Cth) s 4, s 24
Federal Court Rules O 52 r 4(2), O 52 r 4(3)
Federal Magistrates Act 1999 (Cth) s 45
Federal Magistrates Court Rules 2001 r 15.29
Freedom of Information Act 1982 (Cth)
Freedom of Information Act 1989 (NSW)
Human Rights and Equal Opportunity Commission Act 1986 (Cth) s 46PO
The Constitution (Cth) s 73
Ah Toy v Registrar of Companies (1985) 10 FCR 280
Botzatsis v Spenakakis (1997) 97 ACrimR 296
Brooks v The Upjohn Company (1998) 85 FCR 469
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 81 ALJR 352
Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
Driclad Pty Limited v Federal Commissioner of Taxation (1968) 121 CLR 45
Ex parte Bucknell (1936) 56 CLR 221
Lawrance v Commonwealth & Anor (No 4) [2007] FMCA 1408
Lawrance v Commonwealth of Australia & Anor (No 3) [2007] FMCA 806
Lawrance v Commonwealth of Australia & Ors [2006] FMCA 1792
Lawrance v The Commonwealth of Australia & Ors (No 2) [2007] FMCA 797
Moller v Roy (1975) 132 CLR 622
R v Ireland (1970) 126 CLR 321
R v Steffan (1993) 30 NSWLR 633 at 639; Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667
The Commonwealth v Mullane (1961) 106 CLR 166
Yap v Granich and Associates [2001] FCA 1735
NSD 1600 OF 2007
BUCHANAN J
17 OCTOBER 2007
SYDNEY
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IN THE FEDERAL COURT OF AUSTRALIA |
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NEW SOUTH WALES DISTRICT REGISTRY |
NSD 1600 OF 2007 |
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BETWEEN: |
AROHA LAWRANCE Applicant
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AND: |
THE COMMONWEALTH OF AUSTRALIA First Respondent
THE STATE OF NEW SOUTH WALES Second Respondent
THE SECRETARY - DEPARTMENT OF FAMILIES, COMMUNITY SERVICES & INDIGENOUS AFFAIRS Third Respondent
THE GENERAL MANAGER - CRS AUSTRALIA Fourth Respondent
THE AUSTRALIAN GOVERNMENT SOLICITOR Fifth Respondent
ANDRAS MARKUS Sixth Respondent
THE REGISTRAR - FEDERAL COURT OF AUSTRALIA Seventh Respondent
KIM LACKENBY Eighth Respondent
MICHAEL WALL Ninth Respondent
MICHAEL PACKER Tenth Respondent
JOHN PETKOVSHEK Eleventh Respondent
JULIET CURTAIN Twelfth Respondent
GERARD ENGLISH Thirteenth Respondent
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BUCHANAN J |
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DATE OF ORDER: |
17 OCTOBER 2007 |
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WHERE MADE: |
SYDNEY |
THE COURT ORDERS THAT:
1. The application is dismissed with costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA |
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NEW SOUTH WALES DISTRICT REGISTRY |
NSD 1600 OF 2007 |
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BETWEEN: |
AROHA LAWRANCE Applicant
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AND: |
THE COMMONWEALTH OF AUSTRALIA First Respondent
THE STATE OF NEW SOUTH WALES Second Respondent
THE SECRETARY - DEPARTMENT OF FAMILIES, COMMUNITY SERVICES & INDIGENOUS AFFAIRS Third Respondent
THE GENERAL MANAGER - CRS AUSTRALIA Fourth Respondent
THE AUSTRALIAN GOVERNMENT SOLICITOR Fifth Respondent
ANDRAS MARKUS Sixth Respondent
THE REGISTRAR - FEDERAL COURT OF AUSTRALIA Seventh Respondent
KIM LACKENBY Eighth Respondent
MICHAEL WALL Ninth Respondent
MICHAEL PACKER Tenth Respondent
JOHN PETKOVSHEK Eleventh Respondent
JULIET CURTAIN Twelfth Respondent
GERARD ENGLISH Thirteenth Respondent
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JUDGE: |
BUCHANAN J |
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DATE: |
17 OCTOBER 2007 |
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PLACE: |
SYDNEY |
REASONS FOR JUDGMENT
BUCHANAN J:
INTRODUCTION
1 This judgment deals with an application for leave to appeal against interlocutory decisions and rulings made by The Federal Magistrates Court of Australia (the FMCA) on 8 and 9 August 2007. The principles to be applied are stated in Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 (‘Décor’). Without limiting the Court’s overall discretion, the question to be addressed is whether, in all the circumstances, the decision under challenge is attended with sufficient doubt to warrant its being reconsidered and whether substantial injustice would result if leave to appeal was refused, supposing the decision to be wrong. A matter relevant to the second aspect is whether the interlocutory decision under challenge is one that ‘has the practical effect of finally determining the rights of the parties’ (see Ex parte Bucknell (1936) 56 CLR 221 at 225; see also Yap v Granich and Associates [2001] FCA 1735 at [6]).
2 I am not persuaded that either element of the test stated in Décor has been satisfied. A matter of some practical significance is that the proceedings before the FMCA are almost complete. The FMCA has taken the evidence and given directions for the filing of written submissions. Until a final judgment is delivered it is not really possible to do more than speculate about the significance, if any, of the matters about which the applicant complains. In any event she has not made out a sufficient case of arguable error with respect to any of the rulings which she desires to challenge if leave to appeal is given.
PROCEDURAL HISTORY
3 The proceedings before the FMCA were brought, originally in this Court, under the provisions of s 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (‘the HREOC Act’) which invests jurisdiction in this Court and the FMCA to deal with matters arising in connection with a complaint terminated by the President of the Human Rights and Equal Opportunity Commission (‘HREOC’). Although the proceedings were commenced in this Court they were transferred by Madgwick J to the FMCA.
4 The jurisdiction granted by s 46PO of the HREOC Act is subject to a limitation stated in (s 46PO(3)):
‘(3) The unlawful discrimination alleged in the application:
(a) must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or
(b) must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.’
That limitation played an important role in a number of the challenged, and other, rulings made since the proceedings were commenced.
5 The complaint brought by Ms Lawrance was terminated by a ‘Notice of Termination’ issued on 30 May 2006. To that Notice there was attached a statement of reasons for that decision as well as a copy of Ms Lawrance’s complaint dated 26 September 2005, and amendments dated 7 November 2005 and 21 April 2006.
6 The complaint may be understood from the following extracts from the statement of reasons:
‘You have informed the Commission that you have been imputed with a disability which you state is an unlawful act in the absence of a diagnosis. You claim that staff at the Federal Court of Australia, including Ms Kim Lackenby, Mr Gerald English, Mr Michael Wall, Ms Juliet Curtin, Mr Michael Packer, Mr John Petkovshek, as well a person whose name you do not know, discriminated against you by placing pens in their mouths while talking to you. You claim that this is a deliberate attempt by staff to discriminate against you because you have been imputed with a disability. You further claim that this constitutes sex discrimination. You also claim that it is marital status discrimination because a married woman would not have been subjected to such treatment. You further claim that it is victimisation because you have complaints against various persons in the Federal Court of Australia and also because you complained about Hely J placing a pen in his mouth while you were in his courtroom. You have also claimed that this behaviour constitutes sexual harassment.
You further allege that Mr Andras Markus of the Australian Government Solicitor also placed his pen in his mouth in your presence, which you claim is imputed disability discrimination, marital status discrimination and victimisation. In a letter dated 7 November 2005 you further amended your complaint to include a complaint of sexual harassment against Mr Markus, claiming that the conduct was unwelcome and offensive.
You have also complained in letters dated 13 October 2005 that these actions are contrary to or inconsistent with your human rights, and in particular Articles 7, 17, 23 and 26 of the International Covenant on Civil and Political Rights (ICCPR).
You have also raised concerns about actions of Justices Jacobson and Bennett in your correspondence with the Commission.’
7 The complaint was terminated for reasons which were given. Of particular relevance for present purposes is the following (in relation to allegations of discrimination):
‘I am satisfied that there is insufficient evidence provided by you to show how the placing of a pen in a person’s mouth while talking with you would constitute discrimination on the basis of an imputed disability. I am satisfied that there is insufficient information provided by you to show a link between an imputed disability and the alleged less favourable treatment and I am satisfied that there is insufficient information provided by you to show that there was any less favourable treatment. You refer to a programme put in place because of an imputation of a disability, but you do not provide any details of this programme or who implemented it, how it is being administered or how this is linked to the alleged actions of the respondents. I am therefore satisfied that this complaint is lacking in substance and have terminated it pursuant to section 46PH(1)(c) of the Human Rights and Equal Opportunity Commission Act 1986.’
and (in relation to allegations of victimisation):
‘I am satisfied that the actions of people placing pens in their mouth do not constitute a detriment and therefore I am satisfied that your complaint is misconceived. Therefore I have terminated this complaint pursuant to section 46PH(1)(c) of the Human Rights and Equal Opportunity Commission Act 1986.’
8 Apart from the complaint against individuals Ms Lawrance also complained about the possibility of contribution to the alleged acts of discrimination by agencies of the Commonwealth and the State of New South Wales. As to complaints against the Commonwealth Department of Family and Community Services and Indigenous Affairs and CRS Australia the statement of reasons said:
‘I am satisfied that you have provided insufficient information to show how these agencies are linked to the alleged acts of placing pens in mouths. You appear to be alleging that these agencies are responsible for the involuntary medical treatment under the DSA that you suspect that you have been subjected to. However, there is no information provided by you to show a link between those two alleged acts and also insufficient evidence of any involuntary treatment or programme. There is insufficient evidence that there is any act by these departments that would constitute sex, marital status or imputed disability discrimination, victimisation or sexual harassment. I am satisfied that this aspect of the complaint is lacking in substance and have therefore terminated its pursuant to section 46PH(1)(c) of the Human Rights and Equal Opportunity Commission Act 1986.’
9 As to agencies of the State of New South Wales it was said:
‘You allege that the State of NSW is responsible for the alleged programme in which people place pens in their mouths. You claim that it is likely that employees and medical practitioners undertaking work for the NSW Department of Health, or private practitioners, have been given false information about you by Commonwealth employees and former Commonwealth employees. You state that you do not know what agencies and law is involved in the administration of involuntary treatment and you do not know what is occurring.
I am satisfied that this complaint is lacking in substance. I am satisfied that you have not provided sufficient information that would show a link between the alleged acts of the State of NSW and the allegations about the pens in the mouth. Further, you have stated that you do not know what agencies are involved and you do not know what they are doing. There is insufficient information provided by you to show that the State of NSW discriminated against you on the basis of your imputed disability, sex or marital status, contributed or aided or abetted any sexual harassment, or victimised you. Your supposition that the State of NSW is somehow involved through the Department of Health in the placing of pens in mouths by certain people named in your complaint is insufficient evidence. I am satisfied that the complaint is lacking in substance and misconceived. I have therefore terminated your complaints of imputed disability, sex and marital status discrimination, sexual harassment and victimisation pursuant to section 46PH(1)(c) of the Human Rights and Equal Opportunity Commission Act 1986. I have also declined to continue my inquiry that these alleged acts pursuant to section 20(2)(c)(ii) of the Human Rights and Equal Opportunity Commission Act 1986 on the basis that I am of the opinion that this complaint is misconceived and lacking in substance.
10 It may be seen that the complaints made were all related, in one way or another, to the allegations against identified individuals. That conduct, Ms Lawrance informed me at the hearing of the present application, occurred in each case in 2005.
11 The proceedings which were transferred from this Court to the FMCA were commenced by Ms Lawrance on 14 June 2006 against six respondents: The Commonwealth of Australia; The State of New South Wales; The Department of Families, Community Services and Indigenous Affairs; CRS Australia; The Australian Government Solicitor; and the Federal Court of Australia. The parties to the terminated complaint were 16 in number, including the initial respondents to the proceedings. By a proposed amended application attached to an affidavit filed in the FMCA on 28 August 2006 Ms Lawrance sought to substitute a new list of 28 respondents.
12 In Lawrance v Commonwealth of Australia & Ors [2006] FMCA 1792, delivered on 17 November 2006, the Federal Magistrate dealt principally with the application to join additional respondents. Consideration of that matter turned upon the terms of s 46PO of the HREOC Act. A number of individual persons were joined to the proceedings as they were found to have been ‘respondents’ to a complaint made to HREOC. A number of other individuals were not joined to the proceedings as they did not meet that description. Additionally the FMCA gave a series of procedural directions for the conduct of the matter. A further matter dealt with was an application made orally by the applicant that the FMCA should make an order the effect of which would be to grant her anonymity with respect to the proceedings. That application was refused.
13 In an important ruling about the scope of the proceedings before it the FMCA, in this judgment, referring to the parties to the terminated complaint, and the issues raised by the terminated complaint, said (at [40]) and [43] – [44]):
‘40. Having fully considered all the documents which constituted the applicant’s complaint to the Commission, and taking into account all the submissions of the applicant today, I find that her complaint identified in terms and in substance as “the respondents” to her complaint, only the persons which were identified as such by the Commission in the list which heads its notice of termination.
…
43. Within some of the documents filed by the applicant there are suggestions that this Court might have a jurisdiction broader than that conferred by s.46PO to grant remedies in relation to her complaints about other persons. There might implicitly be requests that I should allow amendments to the application which would allow these complaints to be pursued under unparticularised heads of associated jurisdiction (c.f. s.18 of the Federal Magistrates Act 1999 (Cth)). There are also submissions that I should join to this proceeding other proceedings pending in this Court, which concern related complaints or events.
44. However, I have decided that I should exercise all relevant procedural discretions, so as to confine the present proceeding to the application brought under s.46PO(1) in relation to the terminated complaint which is the subject of the notice of termination dated 30 May 2006. I consider that this proceeding should not be extended nor broadened to include any other claims or causes of action which the applicant might have against people who were not respondents to the terminated complaint.’
14 This ruling established an important limitation on the scope of the proceedings. Rulings challenged by the present application for leave to appeal were, as will be seen, made consistently with it. No application for leave to appeal was made against it. This is an important matter in evaluating the utility of allowing an interlocutory appeal, in proceedings which are almost complete, at this late stage.
15 In Lawrance v The Commonwealth of Australia & Ors (No 2) [2007] FMCA 797 delivered on 18 May 2007 the Federal Magistrate refused an application that he should disqualify himself from hearing the proceedings ‘on the ground of bias’. The bias alleged was said to be reflected in various paragraphs and passages of the earlier judgment of 17 November 2006 and include inaccuracies of fact as well as a suggestion that the Federal Magistrate had ‘yelled’ at Ms Lawrance. Those complaints were discussed and rejected.
16 On 18 May 2007 the Federal Magistrate also delivered judgment (and made orders in connection therewith) in Lawrance v Commonwealth of Australia & Anor (No 3) [2007] FMCA 806. He ordered some limited discovery by the fifth to thirteenth respondents and the filing of further affidavits, evidence in reply, outlines of submissions and lists of authorities. He fixed the matter for final hearing on 8 and 9 August 2007. In that judgment the Federal Magistrate declined to order discovery against the first to fourth respondents which include the Commonwealth of Australia and the State of New South Wales. He referred to s 45 of the Federal Magistrates Act 1999 (Cth) (‘the FMCA Act’) which provides:
‘(1) Interrogatories and discovery are not allowed in relation to proceedings in the Federal Magistrates Court unless the Federal Magistrates Court or a Federal Magistrate declares that it is appropriate, in the interests of the administration of justice, to allow the interrogatories or discovery.
(2) In deciding whether to make a declaration under subsection (1), the Federal Magistrates Court or a Federal Magistrate must have regard to:
(a) whether allowing the interrogatories or discovery would be likely to contribute to the fair and expeditious conduct of the proceedings; and
(b) such other matters (if any) as the Federal Magistrates Court or the Federal Magistrate considers relevant.’
17 The Federal Magistrate referred to the fact that the applicant had already exercised her rights under the Freedom of Information Act 1982 (Cth) and the Freedom of Information Act 1989 (NSW). He also stated that ‘in my opinion, the applicant was unable to present to me, with any precision, an acceptable formulation of any of the classes of documents which she now seeks’. He did, however, indicate his preparedness to entertain a further application for discovery (or subpoenas) if necessary in the course of a final hearing.
18 Pursuant to directions given by FMCA the respondents filed written objections to affidavits upon which Ms Lawrance indicated she wished to rely and Ms Lawrance filed a written response. At the beginning of proceedings on 8 August 2007 Ms Lawrance renewed her application for further discovery. It was rejected. She then indicated her desire to make an amendment to the proceedings to seek orders against the NSW Guardianship Tribunal. She also sought to rely, in the proceedings generally, on a further affidavit filed on 3 August 2007. The Federal Magistrate then made a series of rulings in the form of an ex tempore judgment which was subsequently revised from transcript (Lawrance v Commonwealth & Anor (No 4) [2007] FMCA 1408). That judgment contained a number of rulings on evidence and upon the application to seek an additional order. It referred also to the fact that a number of other rulings, not included in the judgment, were made during the proceedings on 8 and 9 August 2007.
19 After giving his rulings the Federal Magistrate commenced to hear the oral evidence. Ms Lawrance was cross-examined for the balance of the day. The following morning Ms Lawrance indicated to the Federal Magistrate that she desired to appeal against his ex tempore judgment and rulings of the previous day and sought an adjournment. The adjournment was refused.
20 Ms Lawrance had required a number of persons to attend to give evidence under subpoena. They were each respondents to the proceedings commenced by her. Federal Magistrate adopted a procedure that permitted her, in effect, to cross-examine these witnesses as though they were not in fact called by her.
21 Thereafter short evidence was called by the respondents. It dealt with issues relating to the steps which had been taken by the Commonwealth and its instrumentalities and the State of New South Wales to identify documents which might relate to Ms Lawrance. The deponents of two affidavits were cross-examined by Ms Lawrance.
22 When the taking of affidavit and oral evidence was complete Ms Lawrance indicated again that she desired an adjournment to pursue an interlocutory appeal but the Federal Magistrate adhered to the ruling he had earlier made.
23 At the conclusion of proceedings on 9 August 2007, orders were made for final submissions in the following terms:
‘1. The parties submissions in the proceeding shall be received in written form.
2. The applicant must file and serve her written submission no later than 4 September 2007.
3. The respondents must file and serve their written submissions before 25 September 2007.
4. The applicant must file and serve her written submission in reply before 16 October 2007.
5. Judgment will stand reserved on that date, and no further submissions by any party shall be considered.’
THE APPLICATION FOR LEAVE TO APPEAL AND AFFIDAVITS IN SUPPORT
24 The application for leave to appeal states:
‘1. The applicant applies for leave to appeal from the judgments of the Federal Magistrates Court of Australia given on 8 August 2007 at Sydney, and 9 August 2007.
2. Leave to appeal is required by section 24(1A) of the Federal Court Act 1976.
3. The grounds of the application appear in the accompanying affidavit.’
25 Order 52 r 4(2) of the Federal Court Rules requires that an application for leave to appeal of the kind now under consideration be accompanied by an affidavit showing:
‘(a) the nature of the case;
(b) the questions involved; and
(c) the reasons why leave should be given.’
26 It also requires (O 52 r 4(3)) that the ‘application must include a statement indicating whether the applicant wishes to have the application dealt with without an oral hearing’. No such statement appears in the application for leave to appeal but as the applicant is self-represented I did not allow that to impede the oral hearing of her application.
27 An affidavit affirmed and filed by the applicant on 14 August 2007 identifies the particular matters in respect of which leave to appeal is sought (which are all referred to as ‘judgments’) as follows:
‘(i) Refusing to grant disclosure orders against the Commonwealth of Australia (CRS Australia and DFCSIA or other Departments which administer the Disability Services Act 1986 (Cth)) (the DSA), and the State of New South Wales (the NSW Department of Health), on 8 August 2007.
(ii) Refusing to amend my application by adding orders sought against the Guardianship Tribunal, and in relation to any guardianship instrument, on 8 August 2007.
(iii) Refusing to join the Guardianship Tribunal on 8 August 2007.
(iv) Rulings on admissibility in relation to my evidence on 8 August 2007 and a CRS affidavit on 9 August 2007.
(v) Refusing to adjourn the matter on 9 August 2007 pending this application for leave to appeal.
(vi) Refusing to grant leave to question Bev Smith and others, on 8 August 2007.’
28 The affidavit filed on 14 August 2007 alleges that Ms Lawrance is being provided with ‘diagnostic and assessment services’ and ‘specialist disability services’ under the Disability Services Act 1986 (Cth) (‘the Disability Services Act’) and that she is being subjected to ‘involuntary medical treatment’. The Disability Services Act authorises the provision of financial assistance and rehabilitation services by the Commonwealth of Australia to persons with intellectual and physical impairments. It is clearly intended to be beneficial legislation with respect to those who fall within its terms. It does not anywhere in its text use the word ‘involuntary’, the phrase ‘medical treatment’ or the phrase ‘specialist disability services’. The only use of the phrase ‘diagnostic and assessment services’ occurs in s 20(2)(b) where it is provided that the Secretary of the responsible Commonwealth Department may arrange for the provisions of such services in connection with the provision of rehabilitation programs. The precise character of Ms Lawrance’s underlying grievance, so far as it concerns the Disability Services Act, is obscure but it is not necessary in this judgment to deal with any aspect of her case in that regard.
29 The affidavit also alleges that certain individual respondents who are employed by the Australian Government Solicitor and the Federal Court of Australia have subjected Ms Lawrance to ‘sexual harassment and unlawful marital status discrimination’ by ‘placing pens in or to their mouths in relation to me’. It appears to be alleged that this conduct is discriminatory ‘by imputing to me a psychiatric impairment in the provision of services’ and that, accordingly, ‘[t]he [individual] respondents have participated in the provision to me of diagnostic and assessment services’. The affidavit goes on to allege that ‘[t]he involuntary treatment and the pen conduct and associated [indecipherable] or disdainful conduct have been used to try to institutionalise me, and are profoundly inhuman’.
30 Ms Lawrance also suggests that some form of guardianship order has been made in relation to her. This suggestion appears to be deduction or supposition on her part as she says: ‘As I do not know how my rights have been affected, what laws apply, and whether it involves a guardianship order, or a guardianship instrument, I was unable to specifically name the Guardianship Tribunal in the complaint before the HREOC’.
31 A further matter to which the affidavit refers, in support of the application for leave to appeal, is a suggestion that a refusal to order ‘disclosure’ against the Commonwealth of Australia and the State of New South Wales may be seen to ‘in effect determine substantive rights and result in a substantial injustice to me’ because she has ‘no other way of obtaining information on what has happened to my rights, what laws apply, the identity of the persons, agencies or organisations administering treatment, providing consent and providing disability services’.
32 Another suggestion is that rulings on evidence made on 8 August 2007 occurred ‘in a process flawed by breaches of procedural fairness’ which ‘procedural fairness breaches were evident in earlier judgments made by Magistrate Smith on 14 December 2006 and 30 May 2007’. Finally, she complains in the affidavit about evidence given in the proceedings before the FMCA by a Ms Carmody and the fact that she was not allowed to call a Ms Smith for cross-examination.
33 Ms Lawrance filed a further affidavit on 4 September 2007. The body of this affidavit contains submissions and arguments about the issue of ‘disclosure’ (item (i) in the list of challenged decisions) and, in connection with that issue I think (although it is not entirely clear) there are allegations of breach of procedural fairness, in addition to other such allegations in the affidavit of 14 August 2007. It also contains a number of assertions and affirmations of Ms Lawrance’s sanity and mental health which do not appear to me to be in any way relevant to her present application. Attached to the affidavit filed 4 September 2007 were 15 exhibits totalling 531 pages. There was very little indication in the affidavit what their significance might be.
34 Exhibit A is the Application originally filed in this Court on 14 June 2006 (NSD 1149/2006) which was subsequently transferred to the FMCA.
35 Exhibit B (61 pages) is ‘Points of Claim’ filed with the Application in this Court on 14 June 2006. This document contains a long series of factual allegations and statements of argument. These are the matters which are the subject of proceedings before the FMCA.
36 Exhibit C (58 pages) is an affidavit affirmed and filed in this Court on 14 June 2006 with the original Application. This was one of the affidavits in respect of which the FMCA made rulings on 8 August 2007. The Federal Magistrate rejected 53 of 115 paragraphs. I deal later with the rulings on the admissibility of evidence and I will attempt then to illustrate the nature of the material with which he had to deal by further reference to this and other affidavits mentioned hereunder.
37 Exhibit D is a three page affidavit. It was rejected in its entirety by the FMCA.
38 Exhibit E is an affidavit affirmed on 7 July 2004. It does not appear to have been an affidavit upon which the FMCA made any ruling. It appears to have been made in different proceedings in this Court.
39 Exhibit F (98 pages) is an affidavit affirmed on 17 April 2007. It contains 147 paragraphs. It was rejected in its entirety by the Federal Magistrate.
40 Exhibit G (154 pages) is an affidavit affirmed on 29 May 2007. All but five paragraphs of this affidavit were rejected.
41 Exhibit H is a copy of the FMCA judgment of 8 August 2007. It contains some underlining and marginal comments to which I have paid no regard.
42 Exhibit I is a seven page ‘Notice of A Constitutional Matter’. It does not appear to have any significance for the present application for leave to appeal.
43 Exhibit J is a 37 page document representing the applicant’s answer to the objections to her affidavits before the FMCA.
44 Exhibit K is an affidavit filed on 21 June 2007 sworn by a solicitor in the office of the Australian Government Solicitor deposing on instructions that none of the fifth to thirteenth respondents have documents in their possession which fall within the classes of documents ordered to be discovered.
45 Exhibit L is a six page affidavit by the General Manager CRS Australia, Ms Carmody (who is the fourth respondent to the proceedings before the FMCA), deposing to searches made within CRS for documents from 1986 to 2004 which might relate to the applicant. The affidavit deposes that no relevant documents were identified. Ms Lawrance asserts in her affidavit affirmed on 14 August 2007 that this affidavit should have been excluded from evidence in the proceedings before the FMCA.
46 Exhibit M is an affidavit made by a solicitor employed in the New South Wales Department of Health. It deposes, principally, to information which would be necessary to efficiently or reasonably conduct a search for any medical records which might relate to allegations made in the proceedings by Ms Lawrance. She asserts in her affidavit filed on 4 September 2007 that this affidavit should not have been admitted into evidence. However, the admission of this affidavit is not one of the matters with respect to which leave to appeal is sought.
47 Exhibit N (23 pages) is an outline of the argument which the applicant advanced to the FMCA. It was filed on 26 July 2007.
48 Exhibit O is a ‘Summary of Submissions’ dated 4 September 2007. Those submissions traverse the factual matters which are the subject of the proceedings before the FMCA. They bear the title of the Federal Magistrates Court of Australia and the identifying code of the proceedings in that Court. They appear to be the submissions which the Federal Magistrate directed be filed by the applicant in the proceedings before him on or before 4 September 2007, in the orders which he made on 9 August 2007.
HEARING OF THE APPLICATION FOR LEAVE TO APPEAL
49 At the hearing before me on 13 September 2007 Ms Lawrance also made oral submissions. In large measure they concentrated on the contention that the Federal Magistrate had taken an unduly narrow view of the ambit of the terminated complaint and, hence, of the proceedings before him. In one way or another each of her contentions in support of the application for leave to appeal rested upon the argument that the decision in question, whether as to discovery, joinder of parties or additional issues, admissibility of evidence or permission to question persons not parties to the proceedings, should have been approached with a more expansive view of the legitimate scope of the proceedings. Viewed with this wider perspective, I understood Ms Lawrance to argue that it was apparent each of the challenged rulings was both wrong and prejudicial to the proper conduct of her case. Necessarily, this line of argument called into question the whole approach to the case adopted by the Federal Magistrate as a result of his view of the operation of s 46PO of the HREOC Act and the consistent application of this view in a series of rulings made by him, of which the challenged rulings were simply the latest. This circumstance is an important element against which to assess whether the tests to be applied can be satisfied.
‘The JUDGMENTS’ SOUGHT TO BE APPEALED
‘Judgment’ (i) (discovery)
50 Item (i) in the list of challenged decisions arises from matters referred to in the following passage in the published judgment of 8 August 2007:
‘30. Postscript. I also note that, at the start of the hearing on 8 August, I also ruled upon some other preliminary applications made by Ms Lawrance, including a request that I should revisit her application for discovery which was addressed in my third judgment cited above. I refused that application, indicating that my reading of the evidence did not cause me to alter my previously expressed opinions. My reasons for this, and other rulings in the course of the hearing which are not covered by this judgment, will appear from the transcript of what occurred during the hearing on 8 and 9 August 2007.’
51 The first occasion on which discovery was refused against the first to fourth respondents (although allowed on a limited basis against the individual respondents) was 18 May 2007. The FMCA concluded on that occasion ([2007] FMCA 806 at [4] – [8]):
‘4. In the present matter, I do not propose to give an extensive judgment explaining why I have generally not be persuaded that discovery would appropriately be ordered in this case. I have carefully considered all the arguments presented in writing and orally by the applicant, and have examined each of the categories which she lists in her list in relation to which she seeks an order. My particular difficulties with their formulation were made apparent to the applicant in the course of submissions, and should be obvious when they are read. In my opinion, the applicant was unable to present to me, with any precision, an acceptable formulation of any of the classes of the documents which she now seeks.
5. I have also taken into account evidence, presented by the respondents, relevant to considering the issues raised by s.45. This evidence included, on the part of the State of New South Wales, affidavits explaining the difficulties that the Crown Solicitor and agencies of that State would face dealing with an order in the general terms of most of the applicant’s request which are directed at agencies which administer the New South Wales health system. The evidence includes another affidavit explaining difficulties in relation to discovery which would face the Guardianship Tribunal. It also presents evidence indicating that further searching for documents, additional to that which has already been performed in that agency under the Freedom of Information Act 1989 (NSW),would appear to be futile.
6. A similar point has been made, on behalf of the Commonwealth respondents, by reference to extensive proceedings which have been conducted by the applicant under the Freedom of Information Act 1982 (Cth), seeking to discover records concerning herself and her concerns which, in part, are now the subject matter of this proceeding. Those proceedings also sought the identification and disclosure of documents concerning a program under the Disability Services Act 1986 (Cth) of the nature described in her complaints to HREOC and alleged in the current proceeding. The outcome of the administrative proceedings under the FOI Act is explained in reasoned decisions of the Administrative Appeals Tribunal (see Lawrance v Centrelink [2005] AATA 14 and Lawrance v CRS Australia [2005] AATA 466).
7. The applicant has had the opportunity to present, on a merits appeal to an independent tribunal, her challenge to a “nil return” response to her requests under the Freedom of Information Act 1982 (Cth), in relation to documents which essentially appear to me to be the same documents that she is now seeking discovery of under most of the paragraphs relevant to the general government agencies who are respondents to this present application. The decisions of the AAT were upheld respectively in Lawrance v Centrelink [2005] FCA 1318 and Lawrance v Chief Executive Officer, CRS Australia [2006] FCA 341. It appears to me that there is little prospect that an order for discovery is likely to be more fruitful than the administrative processes pursued by the applicant, and I consider that it would be oppressive and unjustified to require the respondents to repeat their searches.
8. I am not persuaded, on what the applicant has said to me, that the interests of the administration of justice would be served, in the present matter, by making orders for discovery in the general terms which she seeks.’
There was no application for leave to appeal against this decision.
52 Ms Lawrance’s complaint, in her affidavit of 14 August 2007, about ‘the refusal to order disclosure against the Commonwealth of Australia and the State of New South Wales’ suggests that she has ‘no other way of obtaining information’ and that ‘the refusal to grant disclosure goes to my ability to put my case to the Court’ because she has ‘absolutely no other way of obtaining information necessary to prove’ the matters which are at the foundation of her various assertions. This seems to amount to a concession that she does not have any case available to her based upon objective material in her possession but, in any event, it could not conceivably remove the need for adequate identification of the classes of documents with respect to which discovery was sought, if it was otherwise appropriate to order it.
53 At the hearing before me Ms Lawrance argued that the list of documents in respect of which she sought discovery was sufficiently specific. However, that submission really amounted to a collateral attack on the earlier ruling. After the first ruling, and before the hearing on 8 August 2007, Ms Lawrance filed (on 26 June 2007) a document entitled ‘Points of Claim’. It renewed the claim for discovery in the following way:
‘In relation to my request for disclosure, I request that a further order be made granting general disclosure/discovery.’
54 Discovery is statutorily discouraged in the FMCA by s 45 of the FMCA Act. In the light of his earlier ruling it was inevitable that any renewed application for discovery which was insufficiently specific and not apparently necessary would be refused by the Federal Magistrate. An application of this kind for ‘general’ discovery simply invited rejection.
55 In my view there is no reasonable prospect that an appeal against the refusal of discovery against the first to fourth respondents on 8 August 2007 would succeed.
‘Judgments’ (ii) and (iii) (the Guardianship Tribunal)
56 The matters addressed by (ii) and (iii) in the list of challenged decisions are dealt with in the judgment of 8 August in the following terms:
‘28. Before completing this judgment, I should also address an application for amendment made at the start of today's hearing by the applicant, which she formulated at page 37 of her “response to objections” filed on 3 August 2007. She applied to extend her principal application, as already amended, “to seek an order revoking all guardianship orders or instruments made in relation to me”. Her reference to guardianship orders or instruments appears to be a reference to determinations or actions of the NSW Guardianship Tribunal, which the applicant now suspects have been made without her knowledge or consent.
29. The applicant’s affidavits contain at various points her speculations and complaints about alleged Guardianship orders and proceedings. I have not found any of this material to be rationally probative, whether directly or indirectly, of the existence of any such order or instrument. Moreover, in my opinion, the orders sought in the amendment are not encompassed by the matters complained of to HREOC, and which have been brought to this Court. Nor was the Guardianship Tribunal a respondent to the terminated complaint. In my opinion, the amendment should therefore not be allowed, the Guardianship Tribunal should not be joined as a respondent, and all the applicant’s evidence directed at challenging the alleged guardianship order or instrument should not be admitted in this proceeding.’
57 It will be seen that one basis for refusing leave to amend the application (or to join the Guardianship Tribunal) was that such matters are beyond the jurisdiction of the FMCA by reason of s 46PO of the HREOC Act. Another was that there was no material to suggest the existence of orders or instruments of the kind which Ms Lawrance sought to have revoked. Nothing has been advanced in support of the application for leave to appeal which satisfactorily addresses the foundation for these rulings or calls their correctness into question. At the hearing before me Ms Lawrance confirmed that the Guardianship Tribunal was not referred to anywhere in the material she put before HREOC in connection with her terminated complaint and she did not know of the existence of any orders by the Guardianship Tribunal relating to her or whether the Guardianship Tribunal had given any consideration at any time to her circumstances. Her desire to seek any relief against the Guardianship Tribunal, or in relation to its orders, must be seen as speculative and clearly outside the scope of her terminated complaint. There is no prospect an appeal in relation to this issue could succeed.
‘Judgment’ (iv) (rulings on evidence)
58 The principal matter dealt with in the published judgment of 8 August 2007 was rulings on evidence. The applicant had filed, and sought to rely upon, 12 affidavits, described by the Federal Magistrate as ‘voluminous’, to which extensive objections were taken. A further affidavit was filed before him on 3 August 2007. The last mentioned affidavit was admitted in its entirety subject to further consideration of relevance and weight. Those parts of the earlier affidavits which contained a ‘narrative of events involving the personal respondents themselves and the particular conduct covered by her complaint to HREOC’ were admitted, subject to further consideration in a final judgment ‘as to their probative weight and relevance’. All of so much of ‘the applicant’s evidence in her first affidavit which affirms the absence of any mental condition, disability or impairment’ was admitted. Some opinion evidence by the applicant ‘which is of dubious admissibility’ was also admitted.
59 However, the Federal Magistrate rejected, under s 135 of the Evidence Act 1995 (Cth) (‘the Evidence Act’) and Rule 15.29 of the Federal Magistrates Court Rules 2001 (‘the FMC Rules’) ‘very extensive repetition and elaboration of … evidence … with reference to a multitude of factual circumstances having no … bearing on the issues in the proceedings’ relating to matters about which evidence was given in the first affidavit and not challenged by any respondent as well as ‘very extensive material which amounts to no more than submissions repeating the general contentions of fact and law made in the applicant’s points of claim documents, her particulars and her written submissions’.
60 Rule 15.29(1) of the FMC Rules provides:
‘(1) The Court or a Registrar may order material to be struck out of an affidavit at any stage in a proceeding if the material:
(a) is inadmissible, unnecessary, irrelevant, prolix, scandalous or argumentative; or
(b) contains opinions of persons not qualified to give them.’
61 Section 135 of the Evidence Act provides:
‘The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a) be unfairly prejudicial to a party; or
(b) be misleading or confusing; or
(c) cause or result in undue waste of time.’
62 It is also pertinent to draw attention to s 55(1) of the Evidence Act which provides:
‘(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.’
and s 56 of the Evidence Act which provides:
‘(1) Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.
(2) Evidence that is not relevant in the proceeding is not admissible.’
63 The Federal Magistrate also excluded details of the conduct of numerous persons other than the personal respondents relating to matters which he had earlier ruled, on 17 November 2006 (Lawrance v Commonwealth of Australia & Ors [2006] FMCA 1792), were outside the scope of the matters before him and outside the scope of the FMCA’s jurisdiction as granted by s 46PO of the HREOC Act. He stated that ‘[t]he applicant’s evidence of these matters is therefore irrelevant and inadmissible insofar as she continues to pursue complaints which I had found not to be within jurisdiction’. He indicated that he would have excluded the evidence upon discretionary grounds in any event.
64 No matter of any substance has been advanced in support of the application for leave to appeal so far as those rulings are concerned. That circumstance alone dictates rejection of the application so far as it concerns rulings on evidence. There are other obstacles also.
65 An appeal may be brought in this Court against a ‘judgment’ of the FMCA (Federal Court of Australia Act 1976 (Cth) (‘FCA Act’) s 24(1)(d)) provided that, in the case of an interlocutory judgment, leave is obtained (FCA Act s 24(1A)). ‘Judgment’ is defined by s 4 of the FCA Act to mean ‘a judgment, decree or order, whether final or interlocutory, or a sentence’. The words ‘judgment, decree or order’ have been held to have the same meaning as the words ‘all judgments, decrees, orders’ in s 73 of the Constitution (Ah Toy v Registrar of Companies (1985) 10 FCR 280; Moller v Roy (1975) 132 CLR 622). Judgments, accordingly, involve formal orders. An expression of reasons, for example, does not give rise, independently, to a right of appeal (Driclad Pty Limited v Federal Commissioner of Taxation (1968) 121 CLR 45 at 64; R v Ireland (1970) 126 CLR 321 at 330; Moller v Roy at 639).
66 Rulings made during the course of a proceeding may not be appealable (see generally The Commonwealth v Mullane (1961) 106 CLR 166 at 169). More specifically, there is room to doubt that, in most cases, a ruling on the admissibility of evidence will provide any opportunity to bring an interlocutory appeal. In criminal cases there is clear authority to the effect that a ruling on evidence made in advance of, or in the course of, a trial is not an interlocutory judgment or order (R v Steffan (1993) 30 NSWLR 633 at 639; Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667 at 670) although the general rule may give way to an exception in a ‘rare case’ where a ruling on evidence may form the basis for an appealable order – e.g. a stay of proceedings (Botzatsis v Spenakakis (1997) 97 ACrimR 296 (‘Botzatsis’) at 302 – 304). As Gleeson CJ observed in Botzatsis:
‘One of the reasons given for denying to a ruling on evidence, in the ordinary case, the quality of a judgment or order is that it can be changed during the course of the proceedings. It lacks finality. It does not require a decision of an appellate court to reverse it; at least in theory the judge can be persuaded to alter it.’
These remarks appear to apply equally to civil cases as to criminal ones.
67 In Ampolex Limited v Perpetual Trustee Company (Canberra) Limited NSWCA, unreported, 20 May 1996 Mahoney P (with whom Meagher JA and Cole JA agreed) said:
‘I think the thrust of authority is that a ruling that evidence is admissible, that is, evidence should be received into a trial, given in the course of a trial, is not an order for the purposes of leave to appeal or appeal.’
68 Consequently, in my view, there is a sound basis on which to conclude that the rulings about the admissibility of evidence contained in the judgment of 8 August 2007 (and in the transcript of proceedings) are not judgments within the meaning of s 24(1)(d) of the FCA Act. In any event, I have concluded that there is no sufficient basis to grant leave to appeal against the rulings assuming there is a power to do so.
69 I will endeavour to illustrate why that is so by reference to the material advanced again to this Court in connection with the application for leave to appeal, some of which, as I earlier explained, was copies of affidavits ruled inadmissible in whole or in part by the FMCA.
70 Exhibit C to the affidavit filed on 4 September 2007 is a copy of the affidavit filed initially in support of Ms Lawrance’s application. 53 paragraphs in this affidavit were rejected as irrelevant. The essential complaint Ms Lawrance makes is that identified people, in her presence, put pens in their mouth as a gesture of discriminatory and offensive behaviour. Paragraph 1 of the affidavit of 14 June 2006 reads:
‘The conduct the subject of this complaint is the placing of a pen in the mouth. In 2005 a number of employees of the Federal Court of Australia suddenly began engaging in this conduct in my presence.’
The first paragraph rejected by the FMCA in this affidavit was paragraph 19. It reads as follows:
‘I have never experienced this type of behaviour in any of my friends – or people who are now former friends. In December 1998 a woman who was a social acquaintance of mine, and who I had met about twice before, did place her pen in her mouth within my line of vision. This occurred as I was on a boat on the Hawkesbury River, and she was in a small dingy, approaching the boat I was in. She was at a distance to me of around 100-200 metres, and had a pen sticking out of her mouth as her dingy approached the boat I was in. She removed the pen, before leaving the dingy. Her name is Jeanette. I do not know her surname. I believe she is, or was, an employee of Hornsby Council. I did not know her at all well, having only met her a couple of times previously. I did not for a moment understand her conduct to be aimed at me. I had met her through a person by the name of Valerie Motelb. Valerie, a person I met for the first time in 1996, had never behaved in any such manner towards me, nor in any other manner that was offensive. No other friend, former friend or social acquaintance has ever behaved in this way in my presence or in my line of vision. I have not been aware of the existence of any gossip or rumour in social circles or amongst friends, former friends and social acquaintances that would form the basis of any lewd conduct, nor that was of a sexual nature, in relation to myself. I met Valerie Motelb through a woman I had known as a social acquaintance since I was 18 years of age. Her name is Andrea Taylor. She is no longer a person I regard as a friend, nor am I on friendly terms with her. I have had cause in recent years to be very concerned at her conduct behind my back after being informed by a then mutual friend, Andrea Howard, in 2000, that Andrea Taylor had been sending emails about me. I do not know who the recipients of these emails was, the content of the emails, nor when they were sent.’
In my view this paragraph was rightly rejected. It does not deal with conduct which might be attributed to any respondent in the proceedings and refers to events which have no connection with the proceedings against the respondents.
71 It would be tedious and unproductive to set out, or deal separately with, each of the other 52 paragraphs which were excluded. They were all excluded as irrelevant and, in some cases, under s 135 of the Evidence Act and Rule 15.29(1) of the FMC Rules as well. Until a final judgment is given in the matter there will not be a satisfactory basis against which to test any particular allegation that excluded evidence should have been admitted. So far as any assessment can be made at the present moment, in my view an insufficiently cogent case is established with respect to this affidavit (using it as an example) to grant leave to pursue the matter at an interlocutory stage.
72 Exhibit D to the affidavit filed on 4 September 2007 in connection with the application for leave to appeal provides a further example of the character of the material upon which the FMCA was required to rule. I shall set it out in full (excluding the names of particular individuals to whom it refers).
‘1. In relation to the issue of whether the conduct the subject of this complaint is properly characterised as conduct of a sexual nature, I wish to provide the following evidence.
2. I was interviewed by Ms X, the Principal Solicitor of Macarthur Legal Centre, in June 2001 for a position as a lawyer at the Centre. During this interview Ms X had briefly and unobtrusively raised her pen to her mouth. I did not understand this to be conduct that she was engaging in deliberately, nor did I understand it to be conduct of a sexual nature.
3. About two or three months after I commenced working at the Centre on 26 July 2001, I was given the file of a client of the Centre called Ms Y. Ms Y was a developmentally delayed young woman who had been sexually assaulted. She had written an account of the assault, which had involved oral sex. The account was written using horrifyingly graphic, crude, repellent language. It extended over several pages.
4. Several days after I had been handed this file, and as I read the complaint and dealt with the file, Ms X spent several days ostentatiously and loudly sucking on a chupa chup lollypop. She did this throughout the day, for several days on end, sitting down and walking around with the lollipop in her mouth and the little stick protruding from her mouth, and very noisily slurping on the lollipop.
5. Ms X’s conduct was abnormal, as was, by that stage, much of the conduct of employees of the Centre was, or had become. She did not do anything else along these lines, however, for example raising her pen to her mouth.
6. Whilst I found Ms X’s conduct to be extraordinary, I had no reason to think that this had anything to do with me, in the details of what was occurring. What I mean by this is that I had no reason to think that the subject of oral sex was one that persons would associate with me. However, I was deliberately isolated in that workplace by other employees who refused to establish a rapport with me, and I did notice – it was impossible not to – Ms X’s extraordinary conduct.
7. I did not realise I was being imputed with a paranoid personality disorder. It is clear to me now that this is what was happening. It is clear now, too, that Ms X’s conduct during the job interview was engaged in deliberately. Had I been aware of this at the time, I would not have remained at the interview, and I certainly would not have accepted any offer of employment. It is clear to me now, after the graphic conduct engaged in by Mr Z, and staff and registrars of the Federal Court, that Ms X’s conduct at the job interview was intended to be understood as conduct of a sexual nature – lewd.’
In my view the contents of this affidavit were correctly rejected. They predate matters, the subject of the proceedings, do not deal with conduct that might be attributed to any respondent and are wholly speculative in nature.
73 Exhibit F to the affidavit of 4 September 2007 contained 147 paragraphs in 98 pages. It was rejected in its entirety by the FMC by reference to Rule 15.29(1) of the FMC Rules and ss 55 and 135 of the Evidence Act. Having regard to the objections taken to this affidavit (summarised by the Federal Magistrate as ‘relevance, submission not evidence, repetitive, r.15.29(1)) and to the provisions of the FMC Rules and the Evidence Act set out earlier, I infer that the affidavit was rejected because its contents might all be described as, in one way or another, irrelevant, unnecessary, prolix, argumentative or likely to cause or result in undue waste of time. No part of this affidavit has been identified which might justify the conclusion that one of those epithets at least ought not be applied to it.
74 Exhibit G to the affidavit of 4 September 2007 is a 154 page affidavit. All but five paragraphs were rejected upon the same bases, and in response to the same objections, as applied to the affidavit which is Exhibit F. The same observations may be made about it as I made about the previous affidavit.
75 Exhibit L to the affidavit of 4 September 2007 is an affidavit by Ms Carmody. This is described in item (iv) as ‘a CRS affidavit’. After witnesses subpoenaed by Ms Lawrance had been examined on 9 August 2007 Ms Carmody, who is the fourth respondent, was called by counsel appearing for all respondents but the State of New South Wales. Counsel sought to read some parts, but not all, of the affidavit which is Exhibit L to Ms Lawrance’s affidavit of 4 September 2007. However, objection was taken by Ms Lawrance to the whole of Ms Carmody’s affidavit on the grounds of relevance and other grounds. It was provisionally admitted into evidence over Ms Lawrance’s objection. Ms Carmody then gave some short oral evidence in chief and was cross-examined by Ms Lawrance. It is apparent from the record of proceedings on 9 August 2007, that a final ruling about the admissibility of this affidavit has not yet been made. In my view the provisional ruling is clearly not a ‘judgment’ or ‘order’ but even if it was able to be appealed, leave should not be granted. This also appears to me to be a matter which must be taken up in the light of any final judgment rather than at an interlocutory stage.
76 Ms Lawrance has not sought leave to appeal against the ruling admitting into evidence the affidavit which is Exhibit M to the affidavit of 4 September 2007 but to complete the picture of proceedings on 8 and 9 August 2007 I shall mention it again briefly. After Ms Carmody’s evidence, counsel for the State of New South Wales sought to read the affidavit which is Exhibit M to Ms Lawrance’s affidavit of 4 September 2007. Objection was taken to the entirety of the affidavit. It was admitted as relevant when Ms Lawrance indicated to the FMCA that if it was excluded, as she sought, she would make a submission relying on the fact that the State of New South Wales led no evidence in response to her complaint. The deponent of this affidavit was then cross-examined by Ms Lawrance on the contents of the affidavit.
77 As I earlier indicated, even if, contrary to my present view, any of the rulings on evidence could properly be regarded as ‘judgments’ it is not appropriate to grant leave to appeal from them. Apart from the fact there is no cogent reason advanced to impugn their correctness, or doubt the proper application of the provisions by reference to which they were excluded (or, provisionally in one instance, admitted), there is, in my view, no utility in allowing these matters to be pursued at an interlocutory stage when the proceedings are close to finality. When a final judgment is available Ms Lawrance will have an opportunity to relate any complaint she wishes to make about evidentiary issues to particular aspects of the judgment, if any appeal is then pursued.
‘Judgment’ (v) (refused to adjourn)
78 Ms Lawrance sought, at the beginning and end of proceedings on 9 August 2007, an adjournment of the proceedings before the FMCA so that she could pursue the application for leave to appeal which is now before this Court. The decision whether to grant or refuse the adjournment was a matter within the discretion of the Federal Magistrate having regard to all the circumstances. There is no basis to think that he misunderstood, or failed to take into account, any matter which bore relevantly upon the exercise of that discretion. If leave to appeal was now granted a further application for an adjournment could be made to him. Refusal of an adjournment in that altered context might, although not necessarily, suggest some prejudice to Ms Lawrance’s right to pursue her legitimate interests. However, that is not the present position. Ms Lawrance has not been inhibited in bringing her application for leave to appeal by reason of the fact that the FMCA fixed a timetable for final written submissions. As I have come to the view that there is no basis for the grant of leave to appeal the decision not to grant an adjournment does not require further consideration in the context of the present application.
‘Judgment’ (vi) (leave to cross-examine)
79 Ms Lawrance asked for leave to cross-examine Ms Bev Smith early in proceedings on 8 August 2007. The request appears to have been made in connection with the renewed request for discovery against the Commonwealth, which was, shortly thereafter, rejected. I have already concluded that leave should not be granted to bring an interlocutory appeal against the refusal to order discovery. When seeking to cross-examine Ms Smith, Ms Lawrance relied on the fact that she had attached a ‘statement’ from Ms Smith to an affidavit filed on 29 May 2007 (which is also Exhibit G to the affidavit filed on 4 September 2007 in connection with the application for leave to appeal). She apparently wished to challenge Ms Smith on the content of her statement. However, that part of the affidavit of 29 May 2007 which referred to the statement was excluded from evidence by the rulings made shortly thereafter, as was the statement itself. As I have already indicated that leave to appeal should not be granted in respect of those rulings on evidence it follows that no foundation for a request to cross-examine Ms Smith exists and no question could arise for consideration on any appeal about that issue.
80 In any event, the request was, in my view, misconceived. No right to cross-examine Ms Smith arose from Ms Lawrance’s desire to introduce Ms Smith’s statement into evidence for some reason of her own and as part of her own case.
PROCEDURAL FAIRNESS
81 Ms Lawrance complains, in her affidavit of 14 August 2007, that she was ‘given insufficient time on 18 May 2007, and again on 8 August 2007, to make my submissions orally on disclosure and refer to my objective evidence’. She makes similar complaints in her affidavit of 4 September 2007. Where a breach of procedural fairness is established it will often be necessary for a matter to be heard again (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 81 ALJR 352). Sometimes it may be appropriate for an appeal court to intervene, at an interlocutory stage, to avoid lengthy and ultimately futile proceedings that would be vitiated (assuming always a proper and available foundation for an interlocutory appeal – see Brooks v The Upjohn Company (1998) 85 FCR 469 at 474). However, the present matter is close to finality. Even assuming some foundation for them, there is no good reason to deal with the allegations of breach of procedural fairness, in this or any other respect, on an interlocutory basis. There is every reason why such challenges should be considered in the light of a final judgment, if necessary.
CONCLUSION
82 Each of Ms Lawrance’s proposed grounds of challenge is to an interlocutory ruling in the proceedings. Each seems to me to lack substance. The FMCA has given directions for the filing and serving of written submissions which will be taken into account for the purpose of delivering a final judgment. That judgment may, if necessary, be the subject of an appeal. Whatever view is taken of the issues which Ms Lawrance wishes now to ventilate, they may be raised again if they are relevant to any challenge brought to the final judgment. In my view her rights will not be prejudiced if all the matters about which she complains at the moment do not receive earlier attention but are dealt with, if necessary, in the light of the judgment which is finally delivered. In the circumstances, I do not believe that either of the elements of the test stated in Décor has been met. Accordingly, the application for leave to appeal should be refused and I will so order. It is appropriate that the application be dismissed with costs.
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I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice BUCHANAN J. |
Associate:
Dated: 17 October 2007
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The Applicant: |
The applicant was self-represented |
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Counsel for the Respondent: |
Mr S Lloyd - 1st, 3rd - 13th Respondents Mr P Moorhouse - 2nd Respondent |
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Solicitor for the Respondent: |
Australian Government Solicitor - 1st, 3rd - 13th Respondents Crown Solicitors - 2nd Respondent |
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Date of Hearing: |
13 September 2007 |
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Date of Judgment: |
17 October 2007 |
