FEDERAL COURT OF AUSTRALIA

Scott v Human Rights Commission [2012] FCA 1466

THE COURT ORDERS THAT:

1.     The applicants’ application for leave to start a proceeding be refused.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

REASONS FOR JUDGMENT

1    For almost two decades Mr and Mrs Scott have been aggrieved by what they consider to have been a failure by Commonwealth government authorities, between 1993 and 1996, to grant them certain social security benefits to which they claimed an entitlement. Their sense of grievance has been such that they have pursued litigation in this and other courts since, at least, 1999.

2    An account of this litigation is provided by North J in Scott v Human Rights and Equal Opportunity Commission [2010] FCA 1323 at [48]-[97].

3    As the litigation progressed a pattern emerged. Each case was founded on substantially the same sub-stratum of facts but, in the later cases, different or additional grounds were relied upon. North J provided an overview of the manner in which the various cases were prosecuted when he said (at [220]) that:

“Although the case was framed a little differently in each proceeding, the same dispute was litigated in each case. Mr and Mrs Scott contended that they suffered injury as a result of the conduct of officers of the Commonwealth in the process of initial rejection of the applications for DSP and SB by Mrs Scott. The proceedings considered the liability of the Commonwealth or its officers on a number of different legal bases including breach of statutory duty, breach of common law duty, misfeasance in public office, breach of absolute rights, other causes of action based on intentional infliction of injury, as well as claims for declaratory and injunctive relief based on allegations of the unlawful exercise of statutory power. It is likely that each proceeding was framed slightly differently simply in order to allow Mr and Mrs Scott to argue that their current proceeding did not involve exactly the same considerations as the previous proceeding. However, some claims, such as misfeasance in public office were directly repeated in more than one case. The present proceeding, in substance, concerns the same dispute, even if, as to the entirety of the proceeding, it might not attract the operation of the principles of res judicata, issue estoppel or Anshun estoppel.”

4    Shortly afterwards North J acceded to an application by the Commonwealth of Australia that Mr and Mrs Scott be restrained from instituting any further proceedings in the Court without leave of the Court: see Commonwealth of Australia v Scott [2011] FCA 768. This order was made on 20 June 2011.

5    Not deterred, Mr and Mrs Scott pressed on with a complaint which they had lodged with the Australian Human Rights Commission (“the Commission”) on 21 December 2010. Correspondence between Mr and Mrs Scott and the Commission continued until 27 November 2012 when a delegate of the President terminated the complaint on the ground that it had been lodged more than 12 months after the alleged unlawful discrimination took place: see s 46PH(1)(b) of the Australian Human Rights Commission Act 1986 (Cth).

6    Although aspects of this most recent complaint were repetitive of previous complaints to the Commission, Mr and Mrs Scott alleged, for the first time, that the decisions about which they complained had been tainted by racial and disability discrimination.

7    Mr and Mrs Scott have applied for leave to institute a proceeding against the Commission in which they will seek to challenge the Commission’s decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”).

8    In order to commence the proceeding Mr and Mrs Scott require the leave of the Court. Their application for leave is made under Rule 6.03 which provides:

“6.03     Applications for orders in relation to vexatious proceedings

(1)     A person against whom the Court has made an order under rule 6.02 that the person must not start or continue a proceeding must not start or continue a proceeding without the leave of the Court.

(2)     The Court may make an order under subrule (1) without notice to any other party.

Note 1     Without notice is defined in the Dictionary.

Note 2     The Court will give leave if satisfied that the proceeding is not vexatious and the person has a reasonable cause of action.

(3)     The application under subrule (1) may be determined without an oral hearing.”

9    North J’s order was made under Order 21 of the former Rules which was the predecessor to the present Rule 6.02.

10    Mrs Scott has filed a lengthy affidavit in support of the application. It sets out in great detail the circumstances in which the application came to be made and the basis upon which Mr and Mrs Scott would, were leave to be granted, wish to advance the judicial review proceeding.

11    In these circumstances I have determined to deal with the application without an oral hearing.

12    The discretionary power conferred by Rule 6.03 will only be exercised in an applicant’s favour if the Court is satisfied that the proceeding is not vexatious and that a reasonable cause of action exists: see Yap v Granich Partners [2008] FCA 1380 at [8]; Granich and Associates v Yap [2004] FCA 1567 at [9].

13    Mr and Mrs Scott have failed to satisfy me that the proposed proceeding is not vexatious or that they have a reasonable cause of action.

14    The Commission paid careful attention to Mr and Mrs’s Scott’s latest application to it. Having done so it concluded “that the subject matter of your current complaint … is the same or substantially the same of that of your previous complaints … and your numerous legal proceedings before the courts.” Apart from the novel racial and disability discrimination claims Mr and Mrs Scott had “lodged similar claims with the Commission in 2006 and 2008, which were declined on the basis that the subject matter had been adequately dealt with” in the Courts. In so far as the racial and disability discrimination complaints were concerned, the Commission had regard to the long delay in raising these issues and noted that they could have been raised in earlier curial proceedings or earlier complaints to the Commission. No explanation had been provided by Mr and Mrs Scott for not having earlier raised these grounds.

15    Mr and Mrs Scott wish to challenge the Commission’s decision under paragraphs (e) and (j) of s 5(1) of the ADJR Act. Paragraph (e) makes it a ground of review that a decision “was an improper exercise of the power conferred by the [relevant] enactment.” Such an improper exercise of power may have occurred for any of the diverse reasons provided for in s 5(2) of the ADJR Act. Mr and Mrs Scott do not refer to any of the particular grounds contained in s 5(2) and I must, for present purposes, assume that they would wish to rely on them all. Paragraph (j) provides a ground of review if the decision was “otherwise contrary to law.” Again, no particulars have been provided.

16    I have carefully examined the complaint made by Mr and Mrs Scott to the Commission, the extensive litigation which has occurred since 1999 and the Commission’s reasons for terminating the complaint.

17    The judicial review application which Mr and Mrs Scott seek to agitate in the Court would constitute yet a further attempt to air the same grievances which were the subject of the proceedings which have preceded it. The grounds remain substantially similar. The two novel grounds could easily have been pressed on earlier occasions.

18    I respectfully agree with North J’s analysis of the earlier proceedings and his conclusion that Mr and Mrs Scott’s persistent attempts to redress their perceived grievances have rendered them liable to orders restraining them from commencing further litigation without leave. I also respectfully agree with his Honour’s conclusion that Mr and Mrs Scott’s more recent attempts at litigation have been vexatious within the meaning of the Rules. The proposed application would, for the same reasons, properly be characterised as vexatious.

19    The Commission’s reasons for refusing to further entertain the present complaint are very straight-forward. The complaint would require the Commission to examine, yet again, aspects of the complaint which it had already dealt with and, in so far as the racial and disability discrimination grounds are concerned, could have been, but for some unexplained reasons were not, relied on in earlier complaints to the Commission.

20    The Commission has express statutory power to terminate a complaint which has been made in relation to conduct which has occurred more than 12 months before the complaint was lodged. This is a discretionary power. The Commission has provided clear and logical reasons for declining to exercise it discretion to entertain a complaint which has been late lodged. Mr and Mrs Scott have provided no reasons for their lengthy delay in pursuing claims of racial and disability discrimination.

21    There is nothing in the Commission’s reasons which could, even vaguely, suggest errors of the kind on which Mr and Mrs Scott would wish to rely in their proposed judicial review application. Mrs Scott’s affidavit does not contain any evidence which would be supportive of any of the proposed grounds.

22    For these reasons I have determined that Mr and Mrs Scott should be refused leave to commence the proposed proceeding against the Commission.

Associate:

Dated:    24 December 2012