FEDERAL COURT OF AUSTRALIA

Scott v Australian Human Rights Commission [2013] FCA 569

THE COURT ORDERS THAT:

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

2.    The applicants’ interlocutory application dated 26 February 2013 be dismissed.

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

REASONS FOR JUDGMENT

1    Mr and Mrs Scott seek leave to institute a proceeding. They have made the application because they are precluded by an order of the Court from starting a proceeding without leave of the Court. The draft application filed with the Court in relation to which leave is sought, relates to an application for judicial review of a decision of the Australian Human Rights Commission (“the AHRC”) made on 27 November 2012 to cease to inquire into and to terminate a complaint made by Mr and Mrs Scott. That decision was made by the AHRC on the grounds that the subject matter of the complaint had been adequately dealt with by the courts and that the complaint had been lodged more than 12 months after the alleged unlawful discrimination took place.

2    Mr and Mrs Scott have been seeking redress since at least 1999, for what they consider to be a failure by Commonwealth Government authorities between 1993 and 1996, to provide them with certain social security benefits. The circumstances relating to that claimed failure to pay specified benefits are set out at length in Scott v Pedler [2003] FCA 650 at [1]-[26] (Gray ACJ) and Scott v Pedler [2004] FCAFC 67 at [8]-[28] per Conti J (with whom Gyles and Allsop JJ agreed).

3    A detailed overview of the various proceedings instituted by Mr and Mrs Scott in relation to the same subject matter, is provided by North J in Scott v Human Rights and Equal Opportunity Commission [2010] FCA 1323 (“Scott v HREOC”) at [48]-[106].

4    After two hearings before the Full Court of the Federal Court of Australia and two unsuccessful special leave applications to the High Court of Australia, and having seemingly exhausted all avenues of redress in the courts, Mr and Mrs Scott lodged a complaint with the Human Rights and Equal Opportunity Commission (“HREOC”, now the AHRC) in May 2006. In August 2006, HREOC determined not to investigate the complaint, citing the applicants’ extensive litigation history and stating that the subject matter of the complaint was misconceived and had been adequately dealt with: see Scott v Human Rights and Equal Opportunity Commission [2007] FCA 2055 at [5] (Kenny J). An application for judicial review of that decision was summarily dismissed and an application for leave to appeal the summary dismissal was refused: Scott v Human Rights and Equal Opportunity Commission [2007] FMCA 1642; Scott v Human Rights and Equal Opportunity Commission [2007] FCA 2055.

5    Mr and Mrs Scott made a further complaint to HREOC in February 2008. Once again HREOC determined not to investigate the complaint and once again Mr and Mrs Scott sought a review of that decision. In dismissing that proceeding as an abuse of process in Scott v HREOC, North J summarised what he called the “substantial edifice of litigation brought by Mr and Mrs Scott” and commented at [220]:

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 [a disability support pension] and [a special benefit] 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.

6    In separate proceedings brought shortly thereafter, the Commonwealth sought and obtained an order under Rule 1 of Order 21 of the former Federal Court Rules 1976, that Mr and Mrs Scott be prohibited from instituting proceedings without leave of the Court: Commonwealth of Australia v Scott [2011] FCA 768. Rule 1 of Order 21 is the predecessor to the present Rule 6.02.

7    The requirement that leave be granted for Mr and Mrs Scott to institute proceedings did not inhibit them from lodging a further complaint with the AHRC, and in December 2010 they proceeded to do so. The subject matter of that complaint was substantially the same as that of Mr and Mrs Scott’s 2006 and 2008 complaints to HREOC.

8    Correspondence in relation to their latest complaint continued up until 27 November 2012, when a letter was sent to Mr and Mrs Scott communicating the following:

    a decision was taken by the AHRC to cease to inquire into Mr and Mrs Scott’s allegations of human rights breaches under ss 20(2)(c)(i), (iii) and (iv) of the Australian Human Rights Commission Act 1986 (Cth), on grounds the allegations were made more than 12 months after the alleged unlawful discrimination took place and in any event had been adequately dealt with; and

    a decision was taken by a delegate of the President of the AHRC to terminate their complaints of racial and disability discrimination under s 46PH(1)(b) of the Australian Human Rights Commission Act 1986 (Cth), on the grounds that it was lodged more than 12 months after the alleged unlawful discrimination took place,

(together, “the 27 November 2012 decision”).

9    On 14 December 2012, Mr and Mrs Scott sought leave to file an application for judicial review of the AHRC’s 27 November 2012 decision. A review was sought under ss  5(1)(e) and 5(1)(j) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”). In his reasons for dismissing that leave application in Scott v Human Rights Commission [2012] FCA 1466 (“Scott v HRC”), Tracey J stated the following at [17]-[21]:

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.

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.

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.

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.

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.

10    Having had their leave application dismissed by Tracey J on 24 December 2012, on 14 January 2013 Mr and Mrs Scott again sought leave to file an application for review of the AHRC’s 27 November 2012 decision. For the following reasons I have determined to dismiss that application.

11    In order to commence proceedings, Mr and Mrs Scott require leave of the Court. Their application for leave is made under Rule 6.03 of the Federal Court Rules 2011, which states:

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.

12    I determined to hear Mr and Mrs Scott’s application on the papers under Rule 6.03(3).

13    The discretionary power conferred by Rule 6.03 to grant leave to institute a proceeding will only be exercised where the Court is satisfied that that the proceeding is not vexatious and that a reasonable cause of action exists: Scott v HRC at [12] (Tracey J).

14    Mr and Mrs Scott filed lengthy affidavit material and submissions in support of their leave application. Those materials outline the basis upon which they seek to advance their case if leave is granted.

15    On 26 February 2013, Mr and Mrs Scott also indicated their intent to have their draft application for judicial review varied to include additional prayers for relief not earlier raised. That intent was indicated in an interlocutory application dated 26 February 2013 seeking an order that the draft application be deemed to include the additional prayer for relief sought to be included. An order of this Court is not necessary to amend a draft application made in the current circumstances and the interlocutory application will be dismissed.

16    In correspondence between the Court and Mr and Mrs Scott, the possibility was raised with them that given the decision of Tracey J in Scott v HRC and the nature of their present application, the present application may be regarded as an abuse of process and dismissed on that basis. Mr and Mrs Scott were invited to file submissions outlining why their leave application was not an abuse of process.

17    In response, Mr and Mrs Scott filed submissions outlining what they contended were the differences between their further application for leave and the application that was before Tracey J. In those submissions Mr and Mrs Scott contended that the new draft application for review in relation to which leave is sought, raises new grounds for challenging the AHRC decision not previously raised before Tracey J.

18    The draft application for judicial review accompanying the leave application indicates that review is sought under ss 5(1)(e) and (j) of the ADJR Act. Those subsections provide:

(1)    A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Magistrates Court for an order of review in respect of the decision on any one or more of the following grounds:

…

(e)    that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;

…

(j)     that the decision was otherwise contrary to law.

19    An “improper exercise of power conferred by an enactment” as referred to in s 5(1)(e) is stated by s 5(2) to include:

(a)    taking an irrelevant consideration into account in the exercise of a power;

(b)     failing to take a relevant consideration into account in the exercise of a power;

(c)    an exercise of a power for a purpose other than a purpose for which the power is conferred;

(d)    an exercise of a discretionary power in bad faith;

(e)    an exercise of a personal discretionary power at the direction or behest of another person;

(f)    an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;

(g)    an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power;

(h)    an exercise of a power in such a way that the result of the exercise of the power is uncertain; and

(j)     any other exercise of a power in a way that constitutes abuse of the power.

20    As I have said, Mr and Mrs Scott’s application for leave dealt with by Tracey J was based upon the two grounds specified in paragraphs (e) and (j) of s 5(1) of the ADJR Act. At [15] of Scott v HRC, Tracey J said:

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. [Emphasis added]

21    The application for leave now made seems to be a response to the observation made by Tracey J that the draft application that was before him did not refer to any of the particular grounds contained in s 5(2) in support of the general ground in paragraph (e) of s  5(1). The draft application for which leave is now sought particularises the s 5(1)(e) ground of an “improper exercise of power” by reference to the particular grounds set out in paragraphs (a), (b) and (g) of s 5(2). Although those particular grounds were not spelt out in the draft application which Tracey J considered, as his Honour said at [15] he dealt with the application for leave on the basis that Mr and Mrs Scott relied on all of the particular grounds specified by s 5(2).

22    In Scott v HREOC, North J at [218] distilled from the relevant authorities the following propositions in relation to the exercise of the Court’s power to dismiss a proceeding as an abuse of process:

1.    One form of abuse of process is the use of the process of a court to relitigate disputes which have already been decided by the court.

2.    An attempt to relitigate an issue or dispute which has been resolved in earlier litigation may constitute an abuse of process even though the earlier proceeding did not give rise to res judicata, issue estoppel or Anshun estoppel.

3.    There are public policy considerations which inform the exercise by the Court of the power to dismiss a proceeding as an abuse of process where the proceeding involves relitigation of a dispute already dealt with in an earlier proceeding. Those considerations include:

a.    the need for finality in litigation;

b.    the need to avoid the waste of judicial resources;

c.    the need to avoid vexing the respondent more than once for the same     reason; and

d.    the need to maintain public confidence in, and respect for, the         administration of justice.

4.    On the other hand, the power should be used sparingly so that freedom of access to the Courts is not unreasonably curtailed.

5.    The Court must assess the extent of the oppression and unfairness to the respondent if the dispute is relitigated.

6.    Further, the Court must balance the justice to the applicant against the factors which constitute the alleged abuse of process.

7.    In the exercise of assessment and balancing it may be relevant to consider some or all of the following factors:

a.    The significance of the issue sought to be relitigated in the first proceeding, including whether it was an evidentiary or ultimate issue;

b.    The opportunity available and taken to fully litigate the issue;

c.    The terms and finality of the finding on the issue;

d.    The identity between the relevant issues in the first and subsequent proceedings; and

e.    The plea of fresh evidence including the nature and significance of the evidence and the reason why it was not part of the earlier proceeding.

23    The application before me is in substance the same as that which was considered and rejected by Tracey J. The format is different in that in this proceeding, a draft application for judicial review was filed which refers to matters concerning the Commonwealth Government’s alleged failure to provide social security benefits, whereas in the proceeding before Tracey J, the application for which leave was sought was described by an affidavit that referred predominantly to the decision making process of the AHRC. However the matters addressed are in substance the same. In their submissions, Mr and Mrs Scott did not assert that any fresh evidence not put before Tracey J was being relied upon in the leave application before me.

24    It would be an abuse of the Court’s process to allow Mr and Mrs Scott to reagitate their application for leave when the same application has already been rejected.

25    In the balancing exercise which should be undertaken, I have assessed whether any injustice would be occasioned upon Mr and Mrs Scott by the dismissal of their application. I can discern no injustice whatsoever. No new ultimate issue is now sought to be agitated by Mr and Mrs Scott. Even if the matters now sought to be raised could be characterised as new, those issues could have and should have been put before Tracey J. Mr and Mrs Scott provide no explanation of why any matter said by them to be a new ground was not raised before Tracey J. The prior failure by Mr and Mrs Scott to particularise their grounds of challenge was addressed by Tracey J without any disadvantage to Mr and Mrs Scott by reason of the failure to specify the particular grounds in s 5(2) upon which they now seek to rely. Even if it had not been addressed, the prior failure to particularise provides no justification for Mr and Mrs Scott to be given yet another opportunity to agitate what I consider to be a vexatious proceeding devoid of any reasonable cause of action.

26    If I had not dismissed the application for leave because it is an abuse of process, I would have refused leave for the same reasons as those given by Tracey J in the earlier application.

27    The application for leave to start a proceeding must be dismissed.

Associate:

Dated:    13 June 2013