FEDERAL COURT OF AUSTRALIA
Ugur v Human Rights and Equal Opportunity Commission [2008] FCA 1461
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Federal Court of Australia Act 1976 (Cth)
Federal Court Rules
Guardianship Act 1987 (NSW)
Human Rights and Equal Opportunity Commission Act 1986 (Cth)
Racial Discrimination Act 1975 (Cth)
Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372; [2008] FCAFC 60
JF Keir Pty Ltd v Sparks [2008] FCA 611
Macedonian Teachers’ Association of Victoria Inc v Human Rights and Equal Opportunity Commission (1998) 91 FCR 8
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21
Paramasivam v University of New South Wales [2007] FCA 875
Sea Culture International Pty Ltd v Scoles (1991) 32 FCR 275
Ugur v Human Rights and Equal Opportunity Commission [2007] FCA 2066
White Industries Aust Ltd v Federal Commissioner of Taxation (2007) 160 FCR 298; [2007] FCA 511
H E O UGUR v HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION and COMMONWEALTH OF AUSTRALIA
NSD 1907 of 2007
JAGOT J
26 SEPTEMBER 2008
SYDNEY
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IN THE FEDERAL COURT OF AUSTRALIA |
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NEW SOUTH WALES DISTRICT REGISTRY |
NSD 1907 of 2007 |
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BETWEEN: |
H E O UGUR Applicant
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AND: |
HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION First Respondent
COMMONWEALTH OF AUSTRALIA Second Respondent
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JAGOT J |
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DATE OF ORDER: |
26 SEPTEMBER 2008 |
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WHERE MADE: |
THE COURT ORDERS THAT:
1. Pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) and Order 35A r 2(1)(f) and Order 35A r 3(1)(a) of the Federal Court Rules, the proceedings are dismissed.
2. The exhibits may be returned.
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 1907 of 2007 |
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BETWEEN: |
H E O UGUR Applicant
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AND: |
HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION First Respondent
COMMONWEALTH OF AUSTRALIA Second Respondent
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JUDGE: |
JAGOT J |
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DATE: |
26 SEPTEMBER 2008 |
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PLACE: |
SYDNEY |
REASONS FOR JUDGMENT
1 By notice of motion filed on 26 August 2008 the second respondent, the Commonwealth of Australia, sought an order against the applicant, H E Orhan Ugur, that the proceedings be dismissed on three grounds. The grounds are:
(1) Mr Ugur has no reasonable prospects of successfully prosecuting the proceedings (s 31A(2) of the Federal Court of Australia Act 1976 (Cth)).
(2) The proceedings are an abuse of process (Order 20 r 5(1)(b) of the Federal Court Rules).
(3) Mr Ugur has failed to prosecute the proceedings with due diligence (Order 35A r 2(1)(f) of the Federal Court Rules).
2 The Commonwealth’s notice of motion was supported by an affidavit of Dale Watson, solicitor. Ms Watson’s affidavit summarised the background to the case to date.
3 Mr Ugur, who is not legally represented, opposed the notice of motion. He sought an adjournment of the proceedings to some later date such as December 2008 (or some other time) and an order revoking the Commonwealth’s joinder as the second respondent to the proceedings.
4 Mr Ugur filed two initiating processes on 24 September 2007 (although both bear the proceedings number NSD 1907/2007). These documents nominate the Human Rights and Equal Opportunity Commission (HREOC) as the respondent. Mr Ugur filed an affidavit in support sworn 12 September 2007. At this time, and until January 2008, Mr Ugur was in detention at the Villawood Immigration Detention Centre. He was also, between about 16 February 2007 and 18 February 2008, subject to a guardianship order under the Guardianship Act 1987 (NSW).
5 The first initiating document is an application for review of the decision of a delegate of the President of HREOC on 9 August 2007 to terminate the complaint of unlawful discrimination on the ground that the complaint was lacking in substance (as provided for in s 46PH(1)(c) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (the HREOC Act)). The application for review seeks an order that the Court refer the matter back to HREOC for further investigation and interlocutory orders for the production of documents by bodies which are not parties to the proceedings (namely, the Department of Immigration and Citizenship (the Department) and the Commonwealth Ombudsman).
6 The second initiating document is a claim alleging unlawful discrimination (as provided for in s 46PO of the HREOC Act). Under s 46PO(3) the unlawful discrimination in the application must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint or must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint. The claim alleges unlawful discrimination and cruel and inhumane treatment by various bodies (including bodies which are not parties to the proceedings) because of Mr Ugur’s race and nationality. Mr Ugur claims remedies relating to the production of documents by the Department and the Commonwealth Ombudsman, and orders for the discontinuance of the guardianship order and for HREOC to re-examine and review Mr Ugur’s claims of discrimination and human rights abuses alleged to have been suffered while in detention.
7 Mr Ugur’s affidavit in support alleges mistreatment and torture during his time in immigration detention by various bodies and entities including the Department because of his race or nationality. He complained to the Commonwealth Ombudsman (who is not a party to these proceedings) about his treatment, particularly with respect to the appointment of a guardian. Mr Ugur said in his affidavit that HREOC terminated investigation of his complaint to “cover up” the “misconduct” of the Commonwealth Ombudsman. The affidavit annexes many other documents. This material includes correspondence between Mr Ugur and HREOC and other material including: - (i) a letter to HREOC dated 8 August 2006 alleging that Mr Ugur had been used “as an experiment”, (ii) a letter from HREOC of 31 August 2005 relating to an earlier complaint to the effect that there was no or insufficient supporting information, (iii) a letter to HREOC of 31 July 2006 alleging torture, (iv) a letter from Legal Aid New South Wales advising that legal aid had been refused, (v) a letter to HREOC of 9 November 2006 in which Mr Ugur said he wanted to present a fresh case, (vi) a complaint to HREOC dated 15 February 2007 with an attached letter complaining about discrimination by the Commonwealth Ombudsman including with respect to the guardianship order, (vii) a more detailed complaint to HREOC dated 13 March 2007 making a variety of allegations of discrimination mostly by the Commonwealth Ombudsman and the Department including with respect to the guardianship order, (viii) a letter to HREOC of 8 April 2007 making various complaints about discrimination and violation of Mr Ugur’s human rights including with respect to medical treatment, medical reports and the appointment of the guardian based on the medical reports, (ix) a letter from HREOC of 8 June 2007 stating, amongst other things, that nothing in the information provided by Mr Ugur (apart from his belief) supported the view that his race or national origin were factors in the matters about which he complained and requesting any further supporting information within 14 days, and (x) a letter to HREOC of 16 July 2007 requesting more time to provide further information (with numerous annexures relating to communications with the Commonwealth Ombudsman).
8 To understand the positions of the Commonwealth and Mr Ugur it is necessary to record the background to the proceedings and the Commonwealth’s notice of motion seeking orders dismissing the proceedings.
Background
9 HREOC issued the notice of termination under s 46PH(2) of the HREOC Act on 9 August 2007. The notice records that the complaint had been terminated pursuant to s 46PH(1)(c) of the HREOC Act (satisfaction that the complaint was lacking in substance). The reasons for this decision identify the complaint as being against the Department and the Commonwealth Ombudsman and involving allegations of breach of human rights and discrimination under the Racial Discrimination Act 1975 (Cth). The notice of termination continues:
You state that you are stateless and are currently being held in immigration detention at Villawood Immigration Detention Centre (Villawood IDC). You state that the Department applied to the Guardianship Tribunal (the Tribunal) to appoint a Guardian for you in order that you may reside out of detention in the community and that the Ombudsman supported this application. You allege that the Department and the Ombudsman both provided false information and reports about your health to the Guardianship Tribunal. You allege that the Department and the Ombudsman breached your human rights and discriminated against you on the basis of your race or national origin in the manner in which they provided information to the Guardianship Tribunal.
10 This description of the complaint accords with Mr Ugur’s correspondence to HREOC in 2007 (see the references in Mr Ugur’s affidavit identified above).
11 The notice of termination records further as follows:
You have provided numerous documents to the Commission including letters of complaint to the Ombudsman, the Department and the Guardianship Tribunal, letters to your solicitors, Guardianship Tribunal Summary Sheets and letters regarding doctors’ appointments and reports. It appears from these documents that you believe you are not being treated as a person of sound mind. You also believe you are able to live in the community and do not believe that a Guardian should be appointed for you to do so.
On 8 June 2007, the Commission wrote to you and advised of its assessment that the acts about which you complain may not constitute a breach of human rights and/or may be lacking in substance and you were provided the opportunity to make submissions on this assessment. You provided your submissions and voluminous documentation in your faxes of 8, 11 and 19 July 2007 and 6 August 2007. You again state that you believe that you were treated as a person not of sound mind when there was medical evidence to the contrary. You state that you believe the Guardianship Order is racially motivated and it is to prevent you from using your human rights in Australia.
…
In your most recent submissions you have again provided extensive documentation including letters of complaint you have made to the Ombudsman, the Department, GSL, and the Guardianship Tribunal and responses to these; copies of your client request forms; letters to legal representatives and medical practitioners; letters regarding medical appointments, reports and invoices from medical practitioners; copies of reports from the Commonwealth and Immigration Ombudsman: Guardianship Tribunal Summary Sheets; transcripts of hearings before the Guardianship Tribunal on 21 December 2006 and 16 February 2007; correspondence to the Administrative Decisions Tribunal about your appeal application; Application to Appeal Panel for Urgent Interlocutory Order; copies of Summons to Give Evidence to the Administrative Appeals Tribunal and correspondence and documents from the Australian Government Solicitor. I note that you believe that there is more information that you can provide to support your allegations. However, I consider that there is more than sufficient information before me to allow me to make a decision on whether I should continue to inquire into your complaint.
12 The notice of termination contains various sub-headings under the heading “My Decision” including “Human Rights”, “The Ombudsman”, “The Department” and “Allegations of race discrimination”.
13 Under the heading “Human Rights” the notice of termination states, amongst other things, the following:
I have considered all the information you have provided in this matter. I have decided to decline to continue to inquire into your complaint alleging a breach of human rights on the basis that:
· I am satisfied that the act or practice is not inconsistent with or contrary to any human right;
· I am of the opinion that the subject matter of the complaint has already been adequately dealt with by another statutory authority;
· I amof the opinion thatthe subject matter of the complaint could be more effectively or conveniently dealt with by another statutory authority.
I make this decision pursuant to sections 20(2)(a), 20(2)(c)(v) and 20(2)(c)(vi) of the HREOC Act.
From the information you have provided to the Commission, I am satisfied that in relation to the issues of initiating proceedings to have a guardian appointed for you and the proceedings themselves neither the Department nor Ombudsman have breached articles 5 or 7 of the ICCPR [International Covenant on Civil and Political Rights]…
14 Under the heading “The Ombudsman” the notice of termination states, amongst other things, the following:
I have carefully considered all the documents you have provided to the Commission and I am of the opinion that the Ombudsman did not play a direct role in the proceedings before the Guardianship Tribunal. In relation to the issue of guardianship, it appears that the Ombudsman’s actions are confined to the Commonwealth & Immigration Ombudsman preparing two reports for the Minister for Immigration and Multicultural Affairs dated 18 May 2006 and 24 October 2006. These reports look at your detention history, visa applications, your health and welfare, mental health and capacity.
…
In writing these reports it appears that a concern of the Ombudsman was that you were getting the medical care that medical practitioners had assessed that you need. It recommended that the Department pursue the issue of guardianship so that you could obtain the inpatient treatment recommended by Dr Smith. While you do not agree with the assessment of your health and the recommendations contained in the Ombudsman’s reports, I am satisfied that the Ombudsman’s actions in preparing these reports and providing them to the Minister do not constitute torture or cruel, inhuman or degrading treatment or punishment. I am of the view that these actions are not inconsistent with or contrary to article 7 of the ICCPR and do not constitute a breach of your human rights under the HREOC Act.
While the Ombudsman’s reports appear to be a factor in the Department applying to the Guardianship Tribunal to appoint a guardian for you, the Ombudsman did not play any direct role in the proceedings before this Tribunal. From the transcripts of the proceedings you have provided it appears that these reports were part of the evidence considered; however, the Ombudsman did not appear before the Tribunal or take part in these proceedings. In relation to the conduct of the proceedings before the Tribunal or take part in these proceedings. In relation to the conduct of the proceedings before the Tribunal, there is no act or practice by the Ombudsman that could constitute a breach of your human rights.
15 Under the heading “The Department” the notice of termination states, amongst other things, the following:
As I understand it, your concerns with the Department are that it applied to the Guardianship Tribunal to have a guardian appointed for you so that you could live in the community. You also claim that the Department provided false information and reports about your health to the Tribunal. From the information before me about the proceedings before the Guardianship Tribunal and the events leading up to this, it would appear that the Department made an application to the Guardianship Tribunal for a guardian to be appointed for you as they had medical evidence that you needed medical treatment which you were not receiving. The Department felt that you would be better off residing in the community. However, it had concerns that you would not be able to adequately care for yourself and receive appropriate medical care and treatment. Therefore, the Department was of the opinion that a guardian should be appointed for you. While you do not agree with the Department’s assessment of your mental health or the need for a guardian, I am satisfied that these actions by the Department do not breach article 7 of the ICCPR and therefore human rights under the HREOC Act. I consider that these actions do not constitute torture, or cruel, inhuman or degrading treatment or punishment in relation to you.
…
I am of the opinion that these are all matters that have either been raised by you and dealt with in the hearings before the Guardianship Tribunal or could be more effectively dealt with through the processes in place for people to seek a review of decisions made by the Guardianship Tribunal. These are not matters for this Commission. Additionally, as the Guardianship Tribunal has attributes similar to a court of justice, I consider that when it is exercising its hearing and determination functions it is immune from suit under Commonwealth anti-discrimination or human rights law.
If you are unhappy with the decision of the Guardianship Tribunal of 16 February 2007 to appoint a public guardian for you or the processes before the Tribunal in exercising this hearing function, you can lodge an appeal with the Administrative Decisions Tribunal or the Supreme Court. You have lodged an appeal with the Administrative Decisions Tribunal and also made an application for an urgent interlocutory order. I understand that your concerns about the proceedings before the Tribunal, which are summarized above, are specific grounds of appeal put forward by you in these proceedings. For these reasons I have also decided to decline to continue to inquire into your complaint under sections 20(2)(c)(v) and 20(2)(c)(vi) of the HREOC Act.
16 Under the heading “Allegations of race discrimination” the notice of termination states the following:
You have also alleged discrimination on the basis of race and national origin. I am satisfied that there is no evidence in the information you have provided to the Commission, apart from your belief, that your race or national origin were factors in the decision by the Department to apply for a guardian for you or in the manner in which it provided information to the Guardianship Tribunal. There is also no evidence that your specific race or national origin were factors that influenced the content of the two reports which were prepared by the Ombudsman about you which I have referred to above. For these reasons I have decided to terminate your complaint of race discrimination under section 46PH(1)(c) of the HREOC Act on the basis that I am satisfied that it is lacking in substance.
17 As noted, Mr Ugur commenced the proceedings on 24 September 2007. On 30 October 2007 the proceedings were before Gyles J for a directions hearing. The Commonwealth appeared at the directions hearing seeking an order that it be joined as a second respondent to the proceedings. Mr Ugur objected to the Commonwealth being joined as a party. Gyles J adjourned the matter for directions and the Commonwealth’s application to be joined for hearing on 11 December 2007.
18 On 11 December 2007 Gyles J ordered that the Commonwealth be joined as a second respondent to the proceedings (Ugur v Human Rights and Equal Opportunity Commission [2007] FCA 2066). Gyles J also granted the applicant liberty to apply to revoke the order joining the Commonwealth once the position in relation to the guardianship order was resolved. Gyles J adjourned the proceedings for further directions on 18 March 2008. As noted, Mr Ugur was released from detention in January 2008. The guardianship order lapsed on 18 February 2008.
19 On 18 March 2008 Mr Ugur advised the Court that the guardianship order had lapsed. Mr Ugur sought an adjournment to obtain legal advice. The respondents did not oppose the adjournment. Gyles J observed that, as the guardianship order had lapsed relatively recently, an adjournment for Mr Ugur to obtain legal advice was not inappropriate. Mr Ugur sought until July 2008 due to a mention in the Supreme Court proceedings on 5 May 2008. Gyles J adjourned the proceedings for further directions on 22 July 2008 on the basis that Mr Ugur should inform the Commonwealth about the status of his legal aid application. Mr Ugur also applied to revoke the order joining the Commonwealth, which Gyles J rejected on the basis that a further application to that effect could be made on 22 July 2008.
20 On 22 July 2008 Mr Ugur advised the Court that his various applications for legal aid had not been resolved and he wished the proceedings to be adjourned until November 2008. The Commonwealth opposed the adjournment and submitted that the time had come for Mr Ugur to either prosecute his application or for the matter to be dismissed for want of prosecution. The Commonwealth also noted that Mr Ugur had filed two applications. The first challenged HREOC’s termination of the complaint but the second relied on the termination to found the claim for unlawful discrimination. The two claims were inconsistent. Mr Ugur informed the Court that he went to the Supreme Court of New South Wales on 5 May 2008 and had asked for a copy of the written reasons for the Supreme Court’s decision. Gyles J observed that he did not consider that he should deal with the proceedings in a pre-emptive fashion. Rather, Mr Ugur should be given another opportunity of putting his proceedings in a form that could properly be dealt with, it being a matter for the Commonwealth to apply for dismissal of the proceedings if it so wished. Gyles J adjourned the proceedings until 22 September 2008 and granted leave to any party to make any interlocutory motion returnable at that time.
21 On 4 August 2008 HREOC wrote to the Commonwealth Ombudsman in order to provide information about the proceedings so that the Ombudsman could consider what, if any, role the Ombudsman wished to take in the matter.
22 The Commonwealth, as noted, filed its notice of motion for orders dismissing the proceedings on 26 August 2008 (the motion being returnable on 22 September 2008).
Statutory provisions and principles
23 Section 31A(2) and (3) of the Federal Court of Australia Act provides as follows:
(2) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is defending the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
24 Although there has been debate about whether the word “may” in s 31A(2) vests in the Court a power conditional on certain facts being found or discretion (see, for example, Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372; [2008] FCAFC 60 at [127] – [128] and JF Keir Pty Ltd v Sparks [2008] FCA 611 at [12]), certain aspects of the operation of the provision are clear. First, s 31A(3), in terms, discloses that s 31A(2) involves a less stringent test than that applicable at common law for summary dismissal. Secondly, and as Rares J observed in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 236 ALR 720; [2006] FCA 1352 at [46], “s 31A regulates the attainment of justice by creating an entitlement in a party to be protected from claims or defences which fail to meet the threshold prescribed in the section”. Thirdly, and again as Rares J said in Boston Commercial Services at [45], “in assessing what reasonable prospects of success are for the purposes of s 31A, the court must be very cautious not to do a party an injustice by summarily dismissing the proceedings where… contested evidence might reasonably be believed one way or the other so as to enable one side or the other to succeed. As soon as the evidence may have such an ambivalent character prior to a final determination, I am of opinion that then, as a matter of law, at that point there are reasonable prospects of success within the meaning of s 31A. Unless only one conclusion can be said to be reasonable, the moving party will not have discharged its onus to enliven the discretion to authorise a summary termination of the proceedings which s 31A envisages”. This is consistent with the statement by Tamberlin J in Paramasivam v University of New South Wales [2007] FCA 875 at [14] that “… it is essential that the Court must be careful not to do an injustice by summarily dismissing proceedings, or denying an applicant an opportunity to ventilate their case …”. Fourthly, and as Lindgren J noted in White Industries Aust Ltd v Federal Commissioner of Taxation (2007) 160 FCR 298; [2007] FCA 511 at [50], s 31A “is concerned with the bringing and defending of proceedings, not just with pleadings; with substance, not just with form”.
25 Order 20 r 5 of the Federal Court Rules provides as follows:
(1) This rule applies to a proceeding commenced on or after 1 December 2005 if the Court is satisfied that, for the proceeding generally or for a claim for relief in the proceeding:
(a) …
(b) the proceeding or claim is an abuse of the process of the Court.
(2) The Court may order that the proceeding be stayed or dismissed generally or in relation to the claim for relief.
(3) The Court may receive evidence on the hearing of an application for an order under subrule (2).
26 It has been said that the power to stay or dismiss a proceeding for an abuse of process “is a power which ought to be very sparingly exercised and only in exceptional cases”(Sea Culture International Pty Ltd v Scoles (1991) 32 FCR 275 at 279).
27 Order 35A(3) r (1) provides that:
(1) If an applicant is in default, the Court may order that:
(a) the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the applicant; or
(b) a step in the proceeding be taken within the time limited in the order; or
(c) the proceeding be stayed or dismissed, as to the whole or any part of the relief claimed by the applicant, if the applicant does not take a step ordered by the Court in the proceeding in the time limited in the order.
28 Order 35A r 2(1)(f) of the Federal Court Rules is in these terms:
(1) For this Order, an applicant is in default if the applicant:
(a) …
…
(f) fails to prosecute the proceeding with due diligence.
Submissions
29 With respect to s 31A(2) of the Federal Court of Australia Act, the Commonwealth submitted that: - (i) Mr Ugur had not identified any basis for judicial review of HREOC’s termination decision as contemplated by the Administrative Decisions (Judicial Review) Act 1977 (Cth) in either the application, supporting affidavit or any other material, and (ii) Mr Ugur’s claim for unlawful discrimination simply repeated the allegation that HREOC had not investigated his complaint in detail and sought the same orders for documents, discontinuance of the (now lapsed) guardianship order, and for HREOC to re-examine and review Mr Ugur’s complaint. In short, the Commonwealth said that nothing in any of the material adduced by Mr Ugur suggested any arguable case supporting his claims. Insofar as his most recent material extended to new bodies (such as the University of New South Wales) they were outside the scope of his judicial review and unlawful discrimination claims (noting the effect of s 46PO(3) of the HREOC Act with respect to the latter).
30 With respect to Order 20 r 5(1)(b) of the Federal Court Rules, the Commonwealth submitted that Mr Ugur had been put on notice on 22 July 2008 that he could not both seek to set aside HREOC’s termination decision and rely on that decision as the basis for his claim of unlawful discrimination. His claims are inconsistent and cannot both be maintained. To maintain both was a form of abuse of process.
31 With respect to Order 35A r 2(1)(f) the Commonwealth submitted that: - (i) the proceedings had been on foot since 24 September 2007, (ii) Mr Ugur was released from detention and the guardianship order lapsed in January and February 2008 respectively, (iii) the Commonwealth did not object to the adjournment on 18 March 2008 for Mr Ugur to obtain legal advice, (iv) by the next mention on 22 July 2008 Mr Ugur had not been subject to a guardianship order for nearly five months but again applied for a lengthy adjournment which the Commonwealth opposed, (v) Mr Ugur has had ample opportunity to take steps to enable the case to proceed in some manageable way but has not done so despite being aware of the Commonwealth’s position since 22 July 2008, and (vi) none of the impediments relied on by Mr Ugur in his objection to the notice of motion are factually supportable.
32 Mr Ugur handed up a relatively lengthy document, to which he spoke, in support of his position that: - (i) the Commonwealth’s notice of motion should be dismissed, (ii) the Commonwealth’s joinder as party should be revoked, and (iii) the proceedings should be adjourned to some date such as December 2008 to enable him to get legal assistance under Order 80 of the Federal Court Rules and to call as witnesses a range of people involved in his detention and medical assessment for the purpose of the lapsed guardianship order. I understand Mr Ugur’s submissions, insofar as relevant to the Commonwealth’s notice of motion, to be to the following effect:
(1) He initially filed only one document to commence the proceedings but the Registry requested that the two documents be filed. He was in detention and had no access to legal advice so did not understand that only one or other claim could be made.
(2) He requested a copy of the written reasons for the decision of the Supreme Court dismissing his summons but only received those reasons on 8 August 2008. The Commonwealth filed its notice of motion only two weeks later, which was a very short time after he received the Supreme Court’s written reasons.
(3) He had complied with all Court orders. This was the first hearing without the guardianship order being in place. I understand this latter submission to mean that, although the guardianship order lapsed in February 2008, Mr Ugur considered the decision of the Supreme Court to be relevant and he only received the written reasons of the Supreme Court on 8 August 2008. The Supreme Court proceedings appear to have involved Mr Ugur appealing against the guardianship order which lapsed, leading to the dismissal of Mr Ugur’s summons.
(4) His complaint was clear, genuine and had reasonable prospects of success but HREOC did not want to hear him and terminated his complaint suddenly on 9 August 2007 without requesting information from the Department or the Commonwealth Ombudsman or allowing him to obtain information under a Freedom of Information request pending before the Administrative Appeals Tribunal on 4 April 2008. Hence, HREOC did not give Mr Ugur a reasonable opportunity to present his case, did not allow him to receive relevant information, did not consider his submission, and did not act fairly.
(5) Mr Ugur believed that the Public Guardian had influenced HREOC to protect the interests of government.
(6) Mr Ugur believed that HREOC did not check matters and had been misled by false evidence (this appears to be a reference to medical assessments of Mr Ugur while he was in detention for the purpose of the guardianship order).
(7) Mr Ugur had outstanding Freedom of Information applications to various bodies including the Office of the Public Guardian and the Department. He also had some 27 boxes of legal documents that were not returned to him until some time in July 2008.
(8) Mr Ugur had not received a response to his correspondence from Legal Aid.
(9) The Commonwealth had not provided any evidence supporting its notice of motion.
Discussion
33 Mr Ugur is unrepresented. This fact reinforces the importance of the principles that, when dealing with an application for summary dismissal under s 31A(2) of the Federal Court of Australia Act, the Court should exercise caution and focus on substance rather than form. With those matters in mind I am nevertheless satisfied that Mr Ugur has no reasonable prospect of successfully prosecuting his proceedings.
34 Insofar as the proceedings relate to the validity of the termination decision, the President of HREOC may terminate a complaint of unlawful discrimination if satisfied that the complaint was lacking in substance (s 46PH(1)(c) of the HREOC Act). The President (via a delegate) reached this state of satisfaction as recorded in the notice of termination dated 9 August 2007. HREOC (through the delegate) also decided not to continue to inquire into Mr Ugur’s complaint about alleged breaches of human rights, having formed the states of satisfaction and opinion referred to in ss 20(2)(a), 20(2)(c)(v) and 20(2)(c)(vi) of the HREOC Act. These provisions are as follows:
20
…
(2) The Commission may decide not to inquire into an act or practice, or, if the Commission has commenced to inquire into an act or practice, may decide not to continue to inquire into the act or practice, if:
(a) the Commission is satisfied that the act or practice is not inconsistent with or contrary to any human right;
…
(c) in a case where a complaint has been made to the Commission in relation to the act or practice:
...
(v) where the subject matter of the complaint has already been dealt with by the Commission or by another statutory authority - the Commission is of the opinion that the subject matter of the complaint has been adequately dealt with; or
(vi) the Commission is of the opinion that the subject matter of the complaint could be more effectively or conveniently dealt with by another statutory authority.
35 A decision conditional on a state of mind being held is not immune from judicial review but the review process cannot transgress into the merits of the decision (see, for example, the summary of the applicable principles in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [131] – [137]).
36 HREOC was entitled to make the relevant decisions if the relevant states of satisfaction and opinions (as referred to in the statutory provisions founding its decisions) were lawfully formed. Nothing in Mr Ugur’s material indicates any basis for setting aside the decisions as invalid. His application discloses no such ground. Nor does the affidavit in support. The submissions on the notice of motion asserting reasonable grounds for his case against HREOC, to the extent that they could relate to the validity of the termination decision, are a series of generalised assertions unconnected to the nature of the functions vested in HREOC and the grounds upon which its decisions may be vitiated.
37 This conclusion is reinforced by consideration of Mr Ugur’s claims about the termination decision as disclosed in the filed documents. HREOC did not terminate the complaint “suddenly” as alleged. By letter dated 8 June 2007 HREOC informed Mr Ugur that nothing in the information he had provided, apart from his belief, indicated that his race or national origin were factors in the decisions of the Department and Commonwealth Ombudsman to apply for a guardianship order or in the manner in which they provided information to the Guardianship Tribunal. HREOC gave Mr Ugur 14 days to provide further evidence or information in support of the complaint and noted that the President or delegate may terminate the complaint about racial discrimination as one lacking in substance. Mr Ugur, on the evidence, did not submit any further information within the 14 day period stipulated. He asked for more time to do so on 16 July 2007 (outside the 14 day period). HREOC had no legal obligation to await the outcome of Mr Ugur’s apparently numerous requests for documents from various sources under Freedom of Information legislation. HREOC was entitled to reach the view that it had more than sufficient information from Mr Ugur to determine the status and substance of his complaints. HREOC gave Mr Ugur a reasonable opportunity to support his complaints by the letter dated 8 June 2007, considered (in detail) the wealth of information he had provided, and reached the decisions recorded above. HREOC was entitled to do so. Nothing supports the allegations of Mr Ugur that HREOC did not consider his material or acted unfairly in some way.
38 Mr Ugur’s beliefs about improper influence or improper purposes are without any evidentiary foundation. His allegations that HREOC acted on false and misleading material also do not rise above mere assertions of his belief. His position vis-à-vis legal aid applications did not preclude HREOC from taking the action it did.
39 The Commonwealth, for its part, was entitled to submit that nothing in any of the material filed by Mr Ugur in any way supported the claims against the validity of the termination notice or of unlawful discrimination. In other words, the Commonwealth was entitled to rely on Mr Ugur’s material to support its application under s 31A(2) of the Federal Court of Australia Act.
40 I consider that only one conclusion is reasonably open in this case, namely, that HREOC was entitled to and did in fact and law form the required states of satisfaction and opinions necessary to found the decisions it made about Mr Ugur’s complaints.
41 Insofar as the proceedings involve a claim of unlawful discrimination, none of the material indicates any connection between Mr Ugur’s race or national origin and the treatment about which he complains. Section 9(1) of the Racial Discrimination Act 1975 (Cth) provides that:
(1) It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.
42 The words “based on” are not limited to cause and effect but still require a sufficient connection between the impugned conduct and the designated characteristic (Macedonian Teachers’ Association of Victoria Inc v Human Rights and Equal Opportunity Commission (1998) 91 FCR 8 at 33D-E). Mr Ugur believes and has asserted that to be the case but the material does not in any way support the assertion of connection. Mr Ugur’s belief, unsupported by any evidentiary material providing a foundation for it, is not sufficient to satisfy the threshold in s 31A(2).
43 For these reasons I am satisfied that the Commonwealth has established that Mr Ugur has no reasonable prospect of successfully prosecuting the proceedings. The consequence is that the proceedings should be dismissed under s 31A(2) of the Federal Court of Australia Act.
44 Although strictly unnecessary, it is appropriate that I record my conclusions with respect to the balance of the Commonwealth’s notice of motion.
45 I accept the Commonwealth’s submission that Mr Ugur’s claims are inconsistent and cannot both be maintained. However, in the circumstances, I would not dismiss the proceedings as an abuse of process on this ground. If this were the only difficulty with the proceedings I would require Mr Ugur to elect whether he wished to proceed with the review of the termination decision or the unlawful discrimination claim.
46 I accept the Commonwealth’s submission that Mr Ugur has failed to prosecute the proceedings with due diligence as referred to in Order 35A r 2(1)(f) of the Federal Court Rules. The proceedings have not progressed since they were filed in September 2007. While Mr Ugur was subject to a guardianship order the unsatisfactory state of the pleadings was explicable. However, and contrary to Mr Ugur’s submissions, he has been wholly responsible for his own circumstances since February 2008. Mr Ugur’s submissions referred to many circumstances (such as the Supreme Court proceedings, the written reasons of the Supreme Court only becoming available on 8 August 2008, attempts to gain legal aid, and outstanding Freedom of Information applications). None of those matters, on analysis, provides any acceptable justification for the fact that nothing of substance has happened to date. This is in circumstances where the Commonwealth and Gyles J put Mr Ugur on notice of the difficulty with the presentation of his claims and more than adequate opportunity to rectify the problem. Despite this the matter remains in an unsatisfactory state with Mr Ugur seeking a further adjournment to some time in December 2008 or some other unspecified time.
47 In short, on and from 18 February 2008 (the date of lapsing of the guardianship order, a fact of which Mr Ugur was aware on 18 March 2008 if not earlier), Mr Ugur has consistently sought to adjourn the proceedings on various grounds. As at 22 July 2008 the Commonwealth opposed any further adjournment, identified the problems with Mr Ugur’s claims (which Gyles J in substance endorsed), and foreshadowed its intention to move for summary dismissal. The proceedings, in respect of which Mr Ugur is the applicant and responsible for articulating his claims in some meaningful way within the Court’s jurisdiction, remain in the same state as at today’s date. It is not necessary for the Commonwealth to point to a breach of a specific Court order to make good its claim for relief under Order 35A r 2(1)(f) (as the terms of Order 35A r 2(1)(a) disclose). Mr Ugur has not, in the circumstances referred to above, prosecuted these proceedings with due diligence. For this reason also, the proceedings should be dismissed as referred to in Order 35A r 3(1)(a).
48 Insofar as it might be relevant, I note that Mr Ugur raised the making of an order with respect to legal assistance under Order 80 (for what appeared to be the first time on 22 September 2008). I cannot see any basis in the proceedings for the making of such an order. Mr Ugur also referred to what he perceived to be a need to call evidence from various persons apparently to enable him to decide what steps to take next in the proceedings. I do not agree with that perception.
49 For these reasons I make the order the Commonwealth sought dismissing the proceedings by reference to s 31A(2) of the Federal Court of Australia Act and Order 35A r 2(1)(f) and 35A r 3(1)(a). The Commonwealth’s notice of motion did not seek any order for costs and therefore I make no such order.
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I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot. |
Associate:
Dated: 26 September 2008
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The Applicant appeared in person. |
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Solicitor for the First Respondent: |
Ms F Simmons |
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Solicitor for the Second Respondent: |
Ms D Watson |
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Date of Hearing: |
22 September 2008 |
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Date of Judgment: |
26 September 2008 |
