FEDERAL COURT OF AUSTRALIA

Robinson v Commissioner of Police, New South Wales Police Force [2014] FCA 67

THE COURT ORDERS THAT:

1.    The proceedings are dismissed pursuant to r 5.23 of the Federal Court Rules 2011.

                      2.    The applicants pay the respondent’s costs of the proceedings as taxed if not agreed.

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

REASONS FOR JUDGMENT

1    These proceedings were commenced on 14 December 2011. They follow a complaint made to the Australian Human Rights Commission (“the AHRC”). Before I deal in more detail with the subject of the present proceedings, some background and history is in order.

Previous proceedings in this Court

2    On 15 October 2010 proceedings were commenced in this Court following an earlier complaint to the AHRC. Those proceedings were assigned to the docket of Yates J. As refined in amended points of claim, the allegations concerned accusations of discrimination on the ground of disability, occurring during interchanges between the applicants and members of the New South Wales Police Force on 21 March 2009.

3    In the course of preparing those matters for hearing, the applicants filed additional material upon which they sought to rely. In a judgment published on 23 September 2011 (Robinson v NSW Police Service [2011] FCA 1081) Yates J ruled inadmissible in those proceedings so much of the material as related to the interaction between the applicants and the New South Wales Police other than on 21 March 2009. The applicants thereupon made a further complaint to the AHRC. The complaint concerned the additional matters, and also the matters on 21 March 2009. In due course the applicants commenced the present proceedings which, to some extent therefore, overlap the earlier proceedings.

The present proceedings

4    The present proceedings are concerned with allegations of discrimination arising from interchanges between the applicants and the New South Wales Police Force (particularly the first applicant) in the period from 2006 to 2011. They include the same matters which were dealt with by Yates J in the earlier proceedings concerning events on 21 March 2009. Yates J dealt with the proceedings commenced on 15 October 2010 in a judgment given on 20 July 2012 (Robinson v Commissioner of Police, NSW Police Force [2012] FCA 770). He declined to extend the scope of the earlier proceedings to include the matters which are now the subject of the present proceedings. The application filed by the applicants on 15 October 2010 was dismissed with costs.

5    The applicants filed an appeal. On 20 June 2013 the appeal was dismissed with costs (Robinson v Commissioner of Police, New South Wales Police Force [2013] FCAFC 64). The second applicant then made an application to the High Court of Australia on 18 July 2013 for special leave to appeal against the judgment of the Full Court. On 19 August 2013 the Deputy Registrar of the High Court advised solicitors for the respondent that the application for special leave to appeal was deemed to have been abandoned.

6    In the meantime, after Yates J declined to associate the present proceedings with the earlier proceedings, the present proceedings were adjourned from time to time until his Honour had dealt with the earlier proceedings, and then until judgment on the appeal had been given. After advice from the High Court that the application for special leave to appeal was deemed to be abandoned, the present proceedings were listed for directions before Yates J on 28 August 2013.

7    The respondent had determined that, having regard to the material upon which the proceedings were based, namely the material which was put before the Australian Human Rights Commission by way of complaint, it would apply to the Court for summary dismissal of the present proceedings.

8    Yates J made directions that any interlocutory application seeking summary dismissal should be filed by 6 September 2013, supported by detailed written submissions and an affidavit. I am satisfied that the applicants were served with the material which was filed by the respondent, in conformity with the directions made on 28 August 2013, namely an interlocutory application seeking summary dismissal of the present proceedings, detailed written submissions and an affidavit in support.

9    His Honour also directed that the applicants file and serve all material upon which they proposed to rely by 4 October 2013. No material was filed.

Application for summary dismissal

10    The written submissions for the respondent disclosed that the application for summary dismissal was advanced on a number of bases. Insofar as the present proceedings seek to deal with factual matters decided in the earlier proceedings, it was argued that the doctrine of res judicata applies, and the findings against the applicants have merged in the earlier judgment. Insofar as Yates J determined that the provisions of s 24 of the Disability Discrimination Act 1992 (Cth) were not engaged (because neither the respondent nor members of the Police Force provided “services” to the applicants) the respondent argued that those legal conclusions rendered unavailable reliance on any of the events referred to in the present proceedings because the issues raised, although arising from different occasions, are legally indistinguishable from those dealt with in the first proceedings. Further arguments were also advanced to the effect that neither applicant could in the present proceedings satisfy other elements necessary to establish a case for discrimination on the grounds of disability.

11    The applicants have not complied with the directions made on 28 August 2013 that they file and serve any material upon which they wish to rely by 4 October 2013. Despite the fact that the proceedings came before Yates J on further occasions, no material in relation to the present interlocutory application was filed by the applicants, even after that date.

12    On 20 October 2013 the first applicant sent an email to the Court which Yates J construed as, in substance, a suggestion that he should recuse himself from the further hearing of the present proceedings. On 23 October 2013, directions were made that the email stand as an interlocutory application by the applicants for the removal of Yates J from hearing the proceeding. That application was listed for hearing on 22 November 2013. The proceedings (including the present interlocutory application) were otherwise adjourned for directions at the same time.

13    On 22 November 2013, Yates J heard oral argument from the parties on the question of whether he should recuse himself. He also had before him written material supplied by the applicants the previous day. On 4 December 2013, Yates J determined that he should remove himself from hearing the proceedings and that the proceedings should be re-docketed (Robinson v Commissioner of Police, New South Wales Police Force [2013] FCA 1294).

14    The proceedings were, shortly thereafter, allocated to my docket. At a directions hearing on 20 December 2013 I directed that the interlocutory application filed by the respondent on 6 September 2013 be listed for hearing. The applicants did not appear on that occasion. That hearing took place today. The applicants did not appear.

15    The interlocutory application filed on 6 September 2013 relied upon the provisions of s 31A of the Federal Court of Australia Act 1976 (Cth) or, alternatively, r 26.01 of the Federal Court Rules 2011 (Cth). In each case the contention relied upon was that the applicants had no reasonable prospect of successfully prosecuting the proceedings or that no reasonable cause of action was disclosed. As Ms Eastman candidly pointed out during the course of her submissions, the interlocutory application has been made by reference to the material provided, or necessarily incorporated, when the proceedings were commenced. At the moment, what is before the Court is largely material by way of narrative concerning the interactions between the applicants and members of the New South Wales Police Force over a period of some years. No consideration has yet been given by the Court to whether the matter should proceed by way of identification of particular points of claim or through any other attempt to achieve greater specificity of the applicants’ complaints.

16    I have decided that, rather than dealing with the interlocutory application as advanced, it would be more appropriate in light of the present circumstances to deal with the proceedings under a different part of the Federal Court Rules 2011 – r 5.23 – which allows the Court to make orders dismissing a proceeding in the event of default by an applicant.

17    Dealing with the proceedings in that way will leave open the possibility that the applicants can apply to set aside the orders I will make and explain, if they are able to do so, their inaction to this point in relation to the interlocutory application.

18    There is no doubt in my mind that the applicants are in default having regard to r 5.22. They have failed to do things required under the rules, namely comply with directions made by the Court, they have failed to comply with orders of the Court and they have failed to attend a hearing.

19    I make it clear that the occasion has not yet arisen to consider the contentions upon which the respondent relies in support of the interlocutory application for dismissal of the proceedings. Should at some stage in the future the applicants be permitted to set aside the order which I propose to make, it may be necessary to give attention to those matters. On the other hand, it may not be. The applicants may have decided that they have no further interest in pursuing the matters in the present proceedings.

20    I therefore propose to order, pursuant to r 5.23, that the present proceedings be dismissed because the applicants are in default. I note that the respondent has not made a specific application for such an order, but it is within the power of the Court to proceed upon its own initiative in the present case (r 1.40).

21    The respondent has sought an order for costs. The costs of the recusal application were ordered to be the respondent’s costs in the present proceedings. The reason why the proceedings will stand dismissed is because the applicants are in default. In my view, ordinary principles suggest that the respondent is entitled to an order for its costs and I propose to make an order to that effect.

22    The orders which I make are:

1.    The proceedings are dismissed pursuant to r 5.23 of the Federal Court Rules 2011.

2.    The applicants pay the respondent’s costs of the proceedings as taxed if not agreed.

Associate:

Dated:    11 February 2014