FEDERAL COURT OF AUSTRALIA

O’Donoghue v State of Western Australia [2013] FCA 903

THE COURT ORDERS THAT:

1.    The applicant's interlocutory application dated 4 April 2013 to join the Commonwealth of Australia as a respondent is dismissed.

2.    Pursuant to order 4 of the orders of 31 July 2013, the applicant's originating application filed 8 March 2013 is dismissed.

3.    The applicant pay the costs of the respondents and the Commonwealth of Australia, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

INTRODUCTION

1    This is one of several applications Mr O’Donoghue has commenced against various government authorities since the Republic of Ireland has sought to extradite him in connection with fraud charges.

2    He is now in custody in Dublin following his extradition on 10 April 2013 pursuant to a surrender warrant issued under s 23 of the Extradition Act 1988 (Cth) (EA). Prior to his extradition, Mr O’Donoghue was incarcerated in Hakea Prison in Western Australia. This was pursuant to a warrant issued by a magistrate under s 19(9) EA.

3    Mr O’Donoghue has been qualified as a solicitor in Ireland and has found little difficulty in preparing court documents and presenting arguments. He has not, however, enjoyed success in those arguments.

4    On 8 March 2013 Mr O’Donoghue filed an originating application under s 46PO(1) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act), following the notice of termination issued by the Australian Human Rights Commission (the Commission) on 17 January 2013 in relation to his complaint alleging unlawful discrimination under the Disability Discrimination Act 1992 (Cth) (the DD Act). The two named respondents to the originating application are the ‘State of Western Australia – Department of Corrective Services’ (the State) and ‘Dr Philip Hames’ (Dr Hames).

5    In his originating application, Mr O’Donoghue claims that:

1.    The respondents and the third respondent as disclosed agent, have individually and collectively, jointly and severally, and knowingly with malice [sic] aforethought colluded to discriminate against the applicant contrary to law.

2.    The respondents and the third respondent as disclosed agent have individually and collectively, jointly and severally and knowingly with malice [sic] aforethought colluded to victimise the applicant contrary to law and the second respondent has defamed the applicant.

3.    The respondents and the third respondent as disclosed agent have individually and collectively, jointly and severally and knowingly with malice [sic] aforethought colluded to operate, conduct, permit and promote an unlawful policy based on discrimination and victimisation contrary to law.

4.    The respondents and the third respondent as disclosed agent have individually and collectively, jointly and severally and knowingly with malice [sic] aforethought colluded to breach their respective duties of care including statutory duties according to law.

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6    By way of relief, Mr O’Donoghue seeks:

1.    An order of mandamus

2.    An injunction

3.    An apology from the second respondent

4.    An apology from the first respondent on behalf of its disclosed agent the second respondent

5.    Exemplary and punitive damages in the amount of $1,000,000.00

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7    Under the heading ‘Applicants [sic] details’, it is stated that:

1.    The applicant is an Irish citizen, held as a Commonwealth Prisoner at Hakea Prison in the State of Western Australia by Western Australia as disclosed agent of the Commonwealth of Australia.

2.    The applicant is incarcerated under the Extradition Act 1988 (Cth).

3.    The applicant has sought and the respondents have failed, refused and neglected to afford proper, adequate or reasonable dental care to the applicant since 2009 because of a policy which is unlawful and is discriminatory.

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8    Accompanying Mr O’Donoghue’s originating application is a copy of the notice of termination issued by the Commission, reasons for the delegate’s decision, a copy of Mr O’Donoghue’s original complaint to the Commission dated 22 September 2011 (the original complaint) and a copy of Mr O’Donoghue’s amended complaint dated 18 June 2012 (the amended complaint).

9    Mr O’Donoghue claims that he has sought but not received adequate or proper dental care from the respondents since his incarceration in 2009. In the original complaint Mr O’Donoghue claimed that he had five appointments at a Perth hospital and was advised that his teeth should be extracted because ‘the task was too difficult and the expertise or equipment was not available’ at the hospital. He asserted that the State ‘deliberately wish[es] to delay matters to such an extent that remedial work will be too late’.

10    In the amended complaint Mr O’Donoghue claimed that he was referred to another hospital and was advised that ‘the easiest option for the hospital was to extract his tooth however his dental problems were not beyond repair outside prison’. Mr O’Donoghue asserted that this reflected ‘the discriminatory policy operated by the Department of Corrective Services and the Department of Health’. He further asserted that Dr Hames, a doctor at Hakea Prison, ‘denigrated him in front of other medical staff at Hakea as a consequence of filing [his] complaint with the [Commission]’.

THE JOINDER APPLICATION

11    Mr O'Donoghue has filed no documents in the proceeding since filing his interlocutory application to join the Commonwealth as a respondent (the joinder application) along with a supporting affidavit on 4 April 2013. Under the heading ‘Applicants [sic] details’ of the joinder application are the following passages:

1.    The applicant is an Irish citizen held a Commonwealth prisoner in and by the State of Western Australia as disclosed agent of the Commonwealth of Australia.

2.    The applicant was first arrested in 2004 and remained on bail without breach until 3 April 2009 and then was incarcerated pursuant to s 19 of the Extradition Act 1988 (Cth) as a flight risk.

3.    The Commonwealth of Australia is vicariously liable for the acts or omissions of the State of Western Australia its servants or agents.

4.    The applicant has sought and the respondents, its servants and agents and the Commonwealth of Australia as disclosed principal, have failed, refused and neglected to provide or afford proper, reasonable or adequate dental care to the applicant since 2009 because of a policy which is unlawful, discriminatory and in breach of the International Covenant on Civil and Political Rights, the AHRC Act and federal and state law.

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12    In his supporting affidavit, Mr O’Donoghue recites his originating application and exhibits the notice of termination by the Commission, reasons for the delegate’s decision, a copy of the original complaint and a copy of the amended complaint.

13    At the first directions hearing on 4 April 2013, which Mr O'Donoghue attended in person, I ordered that he file and serve on the respondents an affidavit and a statement of issues, facts and contentions in relation to his application by 26 May 2013.

14    On 22 July 2013, the Commonwealth filed an outline of submissions in opposition to the joinder application. The Commonwealth’s grounds for opposing the joinder application are twofold:

1.    The Commonwealth was not a party to Mr O’Donoghue’s complaint to the Commission which was terminated on 17 January 2013; and

2.    It is not otherwise necessary or appropriate for the Commonwealth to be joined as a party under rule 9.05 of the Federal Court Rules 2011 (Cth).

15    In relation to the first ground, s 46PO(1) of the AHRC Act provides:

Application to court if complaint is terminated

(1)    If:

(a)    a complaint has been terminated by the President under section 46PE or 46PH; and

(b)    the President has given a notice to any person under subsection 46PH(2) in relation to the termination;

any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Circuit Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint. (emphasis added)

16    As submitted by Mr Macliver for the Commonwealth, pursuant to s 46PO(1) of the AHRC Act, this Court only has jurisdiction in relation to an application which alleges unlawful discrimination by one or more of the respondents to the terminated complaint, and, therefore, only has jurisdiction in respect of an application, the respondents to which are one or more of the respondents to the terminated complaint.

17    It is apparent from the notice of termination of Mr O’Donoghue’s complaint and the documents attached to it that the respondents to the terminated complaint were the State (acting through the Department) and Dr Hames.

18    Accordingly, pursuant to s 46PO(1) of the AHRC Act, the Court has jurisdiction in relation to the application as filed. However, the Court would not have had jurisdiction if the application had included the Commonwealth as a third respondent. The Commonwealth was not a respondent to the terminated complaint.

19    It follows that I must refuse the joinder application, because the Court has no jurisdiction in respect of an application by Mr O’Donoghue alleging unlawful discrimination by the Commonwealth in relation to the terminated complaint: see Lawrance v Commonwealth of Australia [2007] FMCA 1478. In Lawrance, the applicant had made a complaint to the Commission against named respondents which did not include the Guardianship Tribunal. The complaint was terminated and the applicant lodged an application with the Court pursuant to s 46PO of the Human Rights and Equal Opportunity Commission Act (Cth) (as that Act was then titled). After the application was transferred to the Federal Magistrates Court (as that Court was then named, now the Federal Circuit Court), the applicant sought to join the Guardianship Tribunal as a respondent. The Court found that the Commission had correctly identified the respondents to the terminated complaint in its list at the head of the notice of termination (at [40]), and also found that the Guardianship Tribunal was not a respondent to the terminated complaints (at [43]). His Honour stated (at [42]):

The applicant cannot make an application to the Court alleging unlawful discrimination by the Guardianship Tribunal (in SYG 2109/2006). The words “make an application” are not limited to the filing or lodging of the original documents; they extend to cover what is put to the Court in the case before it. The section does not allow the filing of an application with limited respondents, and thereafter adding respondents that were not respondents to the terminated complaint. It is therefore not open to now add the Guardianship Tribunal as a respondent.

20    In Lawrance v The Commonwealth of Australia [2006] FMCA 1792, the Court also held that the requirement that each respondent to an application under s 46PO must have been a ‘respondent to the terminated complaint’ is a jurisdictional requirement of an application (at [12]). In that matter, the applicant was seeking to amend her application and her proposed amended application identified 28 persons or organisations whom she wished to join to the proceeding. The application was refused for the same reasons.

21    Similarly, in Ioannou v Hellenic Community Aged Care [2012] FCA 1227 I granted the respondent’s summary judgment application on the basis that it was not a respondent to the applicant’s original complaint before the Commission. Mr Ioannou had filed an originating application in this Court pursuant to s 46PO(1) of the AHRC Act. The named respondent to that application was Hellenic Community Aged Care. However, the only named respondent to the terminated complaint before the Commission was ‘Commonwealth of Australia – Department of Human Services (Centrelink)’. I accepted the submission for Hellenic Community Aged care that there was no jurisdiction for it to be joined as a respondent to Mr Ioannou’s application under s 46PO(1) of the AHRC Act.

Commonwealth joinder is not otherwise necessary or appropriate

22    Rule 9.05 of the Federal Court Rules 2011 (Cth) (the Rules) provides by subrule 1(b) that a party may apply to the Court for an order that a person be joined as a party to a proceeding if the person is a person:

(i)    whose cooperation might be required to enforce a judgment; or

(ii)    whose joinder is necessary to ensure that each issue in dispute in the proceeding is able to be heard and finally determined; or

(iii)    who should be joined as a party in order to enable determination of a related dispute and, as a result, avoid multiplicity of proceedings.

23    It is the Commonwealth’s contention that r 9.05(1)(b) does not permit the joinder of a person in an application brought pursuant to s 46PO of the AHRC Act where that person could not have been joined as a respondent to the proceeding because they were not a respondent to the terminated complaint. The issue of the joinder (pursuant to the Rules) of a respondent to an application who was not a respondent to the terminated complaint under s 46PO of the AHRC Act was also considered by Jessup J in Bahonko v Sterjov [2007] FCA 359. His Honour stated (at [36]):

Under s 46PO of the HREOC Act, an application to the court may be made only in relation to “unlawful discrimination by one or more of the respondents to the terminated complaint”. The “terminated complaint” to which the section refers is the complaint in the Human Rights and Equal Opportunity Commission, the termination of which gave rise to the court's jurisdiction. In the present case, none of the parties proposed to be added was a respondent to the applicant's complaint in the commission. In the circumstances, none could have been joined as a respondent to these proceedings, and none can now be joined upon the basis that they ought to have been joined originally under para (b) of r 8(1) of O 6 of the Rules of Court.

24    The Commonwealth observes that although in Bahonko Jessup J held that the Minister could not have been made a respondent in the first instance because she was not a party to the terminated complaint, his Honour stated that he accepted that this consideration may not always be dispositive in an application under O 6 r 8(1)(b) of the former Federal Court Rules (at [46]). Nevertheless, his Honour went on to state (at [46]) that it would, in his view:

… be a most unusual case in which the court took the view that it was necessary to join a new party as a respondent in order to determine, effectively and completely, the matters in dispute when no relief could have been, or could now be, sought against that party. In my view the present is a long way from being such an unusual case. (emphasis added)

25    In the present case, it is not necessary that the Commonwealth be joined as a respondent to the proceeding by reason of any of the matters set out in r 9.05(1)(b) of the Rules. The conditions of Mr O’Donoghue’s imprisonment were entirely the State’s responsibility, and the Commonwealth has no responsibility for, does not act as a principal of, and is not vicariously liable for, the actions of the State in relation to Mr O’Donoghue’s imprisonment at Hakea Prison.

26    The Commonwealth’s position is further supported by s 53 EA which provides:

53    Conditions of imprisonment

The laws of a State or Territory with respect to:

(a)    the conditions of imprisonment of persons imprisoned in that State or Territory to await trial for offences against the law of that State or Territory;

(b)    the treatment of such persons during imprisonment; and

(c)    the transfer of such persons from prison to prison;

apply, so far as they are capable of application, in relation to persons who have been committed to prison in that State or Territory under this Act.

27    Further, none of the relief sought by the application requires the joinder of the Commonwealth as a respondent. Now that Mr O’Donoghue has been surrendered to Ireland and has departed Australia, the relief of mandamus and an injunction are pointless. Paragraphs three and four of Mr O’Donoghue’s originating application seek apologies against the respondents. The final relief sought is damages of $1 million. There is no basis for the Commonwealth to be joined so as to ensure that any award of damages against either or both of the State and Dr Hames is enforced.

28    The determination of Mr O’Donoghue’s claims of unlawful discrimination by the respondents to the terminated complaint does not require the joinder of the Commonwealth.

SPRINGING ORDER

29    On 31 July 2013, I made the following springing or guillotine order:

4.    The time within which the Applicant is to file and serve on the Respondents an affidavit and a Statement of Issues, Facts and Contentions in relation to the application be extended to 21 August 2013, failing which the application will be dismissed.

30    On 31 July 2013, I also made orders programming the joinder application for determination on the papers.

31    On 23 August 2013 the respondents wrote to the Court advising that they had not been served with an affidavit and a statement of issues, facts and contentions as ordered. The respondents sought a formal order that the application be dismissed.

32    There is no doubt as to Mr O’Donoghue’s capacity intellectually and logistically to comply with the orders despite his bald assertions to the contrary. He has made no attempt to do so. Since his extradition to Ireland Mr O'Donoghue has continued to send numerous facsimiles to the Western Australia District Registry and directly to chambers seeking informally inter alia a stay of the proceeding, adjournments of directions and interlocutory hearings, copies of correspondence on the Court file previously sent to him to be forwarded to him in Dublin and to a solicitor in Perth (who is not on the record), and for the Court to sit outside normal court hours and telephone him in Dublin to facilitate his appearance.

The law relating to springing orders

33    Rule 5.21 of the Rules, entitled ‘Self-executing orders’, provides that a party may apply to the Court for an order that, unless another party does an act or thing within a certain time:

(a)    the proceeding be dismissed; or ...

(d)    the party have judgment against the other party.

34    Rule 5.22 of the Rules sets out where a party is in default and includes, by r 5.22(b), where a party fails to comply with an order of the Court.

35    By not filing a statement of issues, facts and contentions by 21 August 2013 as required by my orders, Mr O'Donoghue is in default.

36    Rule 5.23(1)(b) of the Rules provides that if an applicant is in default, a respondent may apply to the Court for an order that the proceeding be dismissed for the whole or any party of the relief claimed by the applicant (i) immediately; or (ii) on conditions specified in the order.

37    On 23 August 2013, the respondents wrote to the Court seeking a formal order that Mr O'Donoghue's application be dismissed.

Consideration

38    The case against the Commonwealth is weak in the extreme for the reasons explained above, while the case against the respondents is unparticularised. In Fisher v Westpac Banking Corporation Ltd (unreported, Federal Court, French J, 9 February 1994), French J (as his Honour then was) saw fit to dismiss an application pursuant to a springing order, saying (at [27]-[28]):

27.    In the event, I am satisfied that the particulars filed on 17 January 1994 do not comply with the requirements of the requests in respect of which the order of 8 December 1983 [sic] was made. No particulars of the reply were filed within the required time and those filed out of time do not appear to be responsive to the request.

28.    Given the history of this matter, I do not consider that any further extension of the time for filing proper particulars should be granted. Although I do not think it appropriate to make a determination on the strike out element of the motion, the applicants' pleaded case is marginal. There has already been strong and adequate warning in this case about the need to comply with the Court's directions. In my opinion, the applicants' claim as against the third respondent should stand dismissed.

39    Likewise, in the present case, Mr O’Donoghue was put on notice at the first directions hearing (which he attended in person) of the need to particularise his allegations of unlawful discrimination on the grounds of disability against the respondents by filing a statement of issues, facts and contentions. In its present form, Mr O’Donoghue’s originating application merely cites ss 5, 6, 11, 24, 29A and 42 of the DD Act. Sections 5 and 6 of the DD Act define direct and indirect discrimination respectively while s 11 defines unjustifiable hardship. Section 24 makes it unlawful for a person to discriminate against another person on the ground of disability in relation to the provision of goods, services or facilities. Section 29 of the DD Act makes it unlawful to discriminate against a person on the ground of disability in relation to the administration of Commonwealth laws and programs. Section 29A provides that Div 2 of the DD Act does not make it unlawful for a person to discriminate against another person on the ground of disability if avoiding the discrimination would impose an unjustifiable hardship on the discriminator.

CONCLUSION

40    As similar considerations presently apply to those considered by French J in Fisher, the same orders (in substance) are to be made.

1.    The applicant's interlocutory application dated 4 April 2013 to join the Commonwealth of Australia as a respondent is dismissed.

2.    Pursuant to order 4 of the orders of 31 July 2013, the applicant's originating application filed 8 March 2013 is dismissed.

3.    The applicant pay the costs of the respondents and the Commonwealth of Australia, to be taxed if not agreed.

Associate:

Dated:    6 September 2013