FEDERAL COURT OF AUSTRALIA

Scott v Human Rights and Equal Opportunity Commission [2010] FCA 1427

THE COURT ORDERS THAT:

1.    The application for leave to appeal is dismissed.

2.    The applicants pay the second respondent’s costs of the application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1    On 13 December 2010, the Court announced after hearing the submissions of the applicants, that it declined to grant the applicants leave to appeal from the judgment of North J in Scott v Human Rights and Equal Opportunity Commission [2010] FCA 1321. What follows are the reasons for the making of that order.

2    The applicants, Mr Ralph Scott and Mrs Sophie Scott, applied to the Court in 2008 for a review of a decision of the first respondent, then known as the Human Rights and Equal Opportunity Commission, but now known as the Australian Human Rights Commission (“the Commission”). The Commission had decided not to inquire into a complaint made by Mr and Mrs Scott that their human rights had been breached. The Commonwealth of Australia, the second respondent, sought summary judgment against Mr and Mrs Scott pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) (“the Federal Court Act”).

3    Section 31A(2)(b) of the Federal Court Act gives the Court power to give judgment for one party against another in relation to the whole or part of a proceeding if it is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding.

4    On 2 December 2010, North J gave judgment for the respondents against Mr and Mrs Scott. Mr and Mrs Scott now seek leave to appeal from the judgment of North J. Leave is required because the judgment is interlocutory; see Kowalski v MMAL Staff Superannuation Fund Pty Ltd (2009) 178 FCR 401 at [42] to [43]. The application for leave to appeal is made pursuant to s 25(2)(a) of the Federal Court Act.

5    Leave to appeal will only be granted if the Court considers that the judgment below is attended with sufficient doubt to warrant it being reconsidered by a Full Court. The Court is also required to consider whether substantial injustice would result if leave were refused, assuming the Judge below erred; see DÉcor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397.

6    For the reasons given below, I consider that the judgment of Justice North is not attended with sufficient doubt to warrant it being reconsidered. I also consider that no substantial injustice would result by the refusal of leave to appeal.

7    The judgment below is lengthy and carefully reasoned. It identifies the complaint of Mr and Mrs Scott and analyses the compliant in detail, recognising that the description given by the Scotts at times was difficult to understand. At [19], his Honour set out the complaint to the Commission as:

We are asking for investigation of the intention not to recognize physical impairment in 1993-1996, abuse of psychiatry in 1993-1996, deceit in 1993 and falsification of documents in 1993 re the alleged assessment of the CMO of 0% impairment, the intentional use of force of hunger from rejection of special benefit, hindering the appeal to the SSAT. [“the complaint”].

8    At [34] his Honour noted the power of the Commission to decide not to inquire into an act or practice if where some other remedy has been sought in relation to the complaint and the Commission is of the opinion that the complaint has been adequately dealt with; see s 20 (2)(c)(iii) of the Australian Human Rights Act 1986 (Cth) (“the Act”).

9    Justice North observed that a delegate of the President of the Commission informed Mr and Mrs Scott that, under s 20 (2)(c)(iii) of the Act, the Commission had decided not to inquire into the complaint. The delegate gave written reasons for the decision. The decision included references to judgments of this Court and the High Court of Australia where Mr and Mrs Scott had failed in applications which raised issues covered by the complaint. Justice North also referred to other proceedings before the Federal Magistrates Court and this Court concerning previous complaints made by Mr and Mrs Scott.

10    At [107] to [118] of his reasons for judgment, North J set out the claims of Mr and Mrs Scott with reference to grounds of review referred to in the Administrative Decisions Judicial Review Act 1977 (Cth) (“the ADJR Act”). Section 5(1)(e), s 5(2)(b), s 5(1)(h), s 5(3)(b), s 5(2)(e), s 5(1)(a), s 5(2)(g) and s 5(1)(j) were relied on by Mr and Mrs Scott.

11    At [119], North J noted the submission of Mr and Mrs Scott concerning alleged violation of their human rights by reference to the International Covenant on Civil and Political Rights and the Declaration on the Rights of Disabled Persons.

12    Justice North first considered whether Mr and Mrs Scott had a reasonable prospect of successfully prosecuting those parts of their application for review which sought the setting aside of previous Court judgments in which they were unsuccessful parties. His Honour held that Mr and Mrs Scott had no reasonable prospect of successfully seeking to set aside previous Court judgments. His Honour’s reasons for so doing were carefully expressed and all relevant issues were dealt with comprehensively.

13    Justice North examined the submissions of Mr and Mrs Scott that the Commission had:

    failed to take into account relevant considerations;

    based its decision on facts which did not exist;

    acted at the behest of another;

    failed to accord natural justice;

    exercised power unreasonably;

    decided contrary to law.

14    His Honour carefully considered all submissions raised in support of these claims and rejected each ground in a thorough examination of all arguments made by Mr and Mrs Scott. He concluded at [174] that they had no reasonable prospect of prosecuting their challenge to the decision of the Commission under the ADJR Act.

15    At [175] ff, North J dealt with an application by Mr and Mrs Scott to re-open previous matters decided adversely to them. His Honour observed at [180] that O 35 r 1 of the rules of Court, on which the applicants relied, “does not allow a Court in a later proceeding to rehear an earlier proceeding and make orders in the later proceeding in place of the orders originally made”. Justice North also rejected a submission made in reliance on O 35 r 7 saying at [182]:

This rule applies when the orders made in a proceeding do not reflect the intention of the Court… it does not apply to the judgments in the previous litigation brought by Mr and Mrs Scott.

At [216], after considering other related submissions, his Honour concluded that:

In the result, Mr and Mrs Scott have no reasonable prospect of prosecuting the application to reopen the previous litigation.

16    At [226], his Honour concluded that the application to review the decision of the Commission should be dismissed because it sought to canvass issues decided against the applicants in previous litigation. Justice North referred to “the public interest in the finalising of litigation” and the ensuing that past litigation is not a “waste of judicial resources”.

17    His Honour did not find it necessary to deal with the submission of the Commonwealth that the substantive proceeding should be dismissed due to the principles of res judicata (where a matter has already been adjudicated), issue estoppel (where an issue that has already been litigated and decided on the merits is prevented from being re-litigated) or Anshun estoppel (precluding parties in subsequent proceedings from raising causes of actions or issues which they could and should have raised in the former proceeding).

18    Justice North concluded at [228] that the proceeding should be dismissed as the applicants had no reasonable prospect of successfully prosecuting it. His Honour said that the proceeding should be dismissed, also, because it was an abuse of process. He adjourned for further consideration the part of the Commonwealth’s motion which sought orders, including that the applicants be declared vexatious litigants.

19    Mr and Mrs Scott filed a draft notice of appeal with their application for leave to appeal. The draft notice sets out five grounds. They are:

1.    The Court failed to draw the proper inference of the central concerns of the complaint to the First Respondent.

2.    The Court misapprehended the central fact to all the previous and to the current proceeding. The Court should have found that no medical practitioner assessed the Second Appellant’s total presented physical impairment as being insufficient for the grant of a disability support pension.

3.    The Court failed to ascertain that the Federal Court in the previous proceedings failed to state and apply the applicable law, namely that s.116(1) and Impairment Tables of the Social Security Act 1991 do not allow that the presented impairment be rejected by a non medical practitioner.

4.    The Court failed to ascertain that the Federal Court misapprehended the applicable law in the previous proceedings, namely that the exercise of discretion constitutes the invalid exercise of power when a decision-maker:

(a)    fails to objectively determine the conditions precedent to the exercise of discretion but nevertheless exercises that discretion,

(b)    uses the improper means of power by denial of procedural fairness, and/or

(c)    engages in tortious conduct in the absence of clear language allowing that conduct.

5.    The Court failed to ascertain that the Federal Court misapprehended the applicable law in the previous proceedings. The Court should have hold [sic] that malice does not require the establishing of the intention to harm. The Court should have hold [sic] that the act that is done wilfully and which is foreseeably likely to cause physical harm is malicious.

20    None of the above grounds identifies an appealable error made by the Court at first instance. Justice North was aware of the concerns of the complaint of the applicant. He fairly summarised and explained them, distilling the essence of them from a vast array of material. The Court below did not misapprehend any fact as alleged in the notice of appeal. The relevant facts were not controversial and were fully set out by his Honour. Further, his Honour carefully and persuasively set out why it was not open to the applicants to disturb previous findings of fact and law made by the Court in earlier judgments.

21    In submissions before the Court on the application for leave to appeal, the applicants failed to demonstrate any arguable basis for disturbing the judgment below. In my view it is not attended by any doubt, let alone sufficient doubt, to warrant it being reconsidered by a Full Court. No injustice, let alone substantial injustice would result if leave were refused, supposing the decision to be in error. That is because the proceeding, for the reasons identified by the trial judge is pointless and an abuse of process. It is noteworthy that the proposed grounds of appeal do not specifically challenge his Honour’s conclusion that the application of Mr and Mrs Scott is an abuse of process. However, the applicants did address that issue before the Court, albeit only by way of an assertion that there was no abuse of process. They also asserted that paragraph 1 of the draft proposed Grounds of Appeal raised the abuse of process issue. It is difficult to see how that it so. As the application is dismissed costs should follow the event.

Associate:

Dated:    17 December 2010