FEDERAL COURT OF AUSTRALIA

Mathews v State of Queensland [2014] FCA 424

THE COURT ORDERS THAT:

1.    The applicant's interlocutory application filed on 8 April 2014 for further discovery, non-standard discovery and extended discovery from the respondent is dismissed.

2.    Clark's Logan City Bus Service (Qld) Pty Ltd make discovery of documents in its control that are directly relevant to the proceedings.

3.    The applicant is to pay the reasonable costs and expenses of Clark's Logan City Bus Service (Qld) Pty Ltd incurred in making discovery and giving production.

4.    Each of the applicant's interlocutory applications filed on 8 April 2014 for discovery against the following entities is dismissed:

(a)    Brisbane City Council including Brisbane Transport;

(b)    Campbell Newman;

(c)    Crime and Misconduct Commission;

(d)    Corporation of the Synod of the Diocese of Brisbane;

(e)    Douglas Porter, ex-Secretary and ex-Registrar, The University of Queensland;

(f)    Legal Services Commission;

(g)    Office of the Information Commissioner;

(h)    St John's College;

(i)    St John's College Council;

(j)    Brisbane Marketing Pty Ltd; and

(k)    The University of Queensland.

5.    The respondent's interlocutory application filed on 8 April 2014 is dismissed.

6.    The proceeding is transferred to the Federal Circuit Court of Australia.

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

REASONS FOR JUDGMENT

1    The applicant, Russell Gordon Haig Mathews, has filed the following interlocutory applications:

(a)    an application for further discovery against the respondent, State of Queensland; and

(b)    12 applications for non-party discovery (although whether these applications are for non-party discovery or for further discovery from the State is in issue).

2    The State has filed an application seeking an order that Mr Mathews be permitted to use or disclose documents obtained by him on discovery only for the purpose of the principal proceedings.

3    Mr Mathews commenced his principal proceedings by way of originating application supported by affidavit. His originating application reads as if it were a statement of claim because it sets out not only the relief that he seeks, but also the facts he relies upon in support of his claim for relief. In his originating application, Mr Mathews alleges that he has a number of disabilities, including brain damage. He alleges that on 5 March 2013, he was a passenger on a TransLink Clark’s Logan City bus, accompanied by his assistance dogs when three TransLink officers physically took hold of him and forced him off the bus. He alleges that the officers acted as they did because his dogs were with him on the bus.

4    Mr Mathews alleges that these officers engaged in unlawful discrimination in breach of various sections of the Disability Discrimination Act 1992 (Cth). He seeks compensation and other relief from the State, as their employer.

5    Mr Mathews made a complaint to the Australian Human Rights Commission. In that complaint, the allegations were substantially the same as those now contained in the originating application. The complaint was eventually terminated and Mr Mathews then commenced proceedings in this Court pursuant to s 46PO(1) of the Australian Human Rights Commission Act 1986 (Cth).

6    I will deal first with Mr Mathews’ application for further discovery from the State and his applications for what appears to be non-party discovery.

7    Mr Mathews argues that he is entitled to discovery from three parts of the Queensland government, namely, TransLink, the Queensland Police Service and the Transport Minister.

8    As to the Transport Minister, Mr Mathews asserts that:

The Transport Minister’s office is reputed to speak of my poor behaviour since 2010. Details of such poor behaviour should be provided to me by discovery.

9    As to the Queensland Police Service, Mr Mathews details what he says is, “an extended voluminous history of bullying, discrimination and mistreatment of myself by the State of Queensland”. He refers to complaints made by him to the Queensland Police Service and charges brought against him over a period of some 18 years.

10    It is apparent that Mr Mathews wishes to use these proceedings as a judicial inquiry into a long history of grievances he has had with the State and various government agencies.

11    Part 20 of the Federal Court Rules 2011 (Cth) deals with discovery of documents. Rule 20.11 provides:

A party must not apply for an order for discovery unless the making of the order sought will facilitate the just resolution of the proceeding as quickly, inexpensively and efficiently as possible.

12    Rule 20.14(1) provides that:

If the Court orders a party to give standard discovery, the party must give discovery of documents…that are directly relevant to the issues raised by the pleadings or in the affidavits.

13    Under Rule 20.14(2), the documents that are to be discovered are documents:

(a)    on which the party intends to rely;

(b)    which adversely affect the party’s own case;

(c)    which support another party’s case;

(d)    which adversely affect another party’s case.

14    Rule 20.15 allows a party to seek non-standard or more extensive discovery. An application for such discovery is required to be accompanied by an affidavit stating why the order should be made. An application under r 20.15 cannot be considered in isolation from r 20.11.

15    Rule 20.23(1) deals with discovery from a non-party and provides:

If a party believes that a person who is not a party has or is likely to have, or has had or is likely to have had, in the person’s control, documents that are directly relevant to an issue raised on the pleadings or affidavits, the party may apply to the Court for an order that the person make discovery of the documents to the party.

16    Rule 20.25 provides that a person against whom an order is sought or made under r 20.23 may apply to the Court for an order that the person who applied for discovery pay the person’s costs and expenses.

17    Section 46PO(3) of the Australian Human Rights Commission Act provides:

The unlawful discrimination alleged in the discrimination:

(a)    must be the same (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or

(b)    must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.

18    A proceeding brought upon termination of a complaint to the Commission lies only in respect of the subject matter of the complaint to the Commission: Grigor-Scott v Jones (2008) 168 FCR 450; Dye v Commonwealth Securities Ltd (No 2) [2010] FCAFC 118 at [46]-[48]; Robinson v NSW Police Service [2011] FCA 1081 at [19]-[26].

19    The substance of Mr Mathews’ complaint to the Commission was that he was physically forced off a bus because he was accompanied by his assistance dogs, and that this constituted unlawful discrimination. That complaint is reflected in his originating application. The complaint and the originating application define the issues in the proceeding that discovery must be directed towards.

20    Mr Mathews applies for further discovery from the State in respect of documents alleged to be held by the Queensland Police Service and the Transport Minister. However, even if any further documents exist, they have not been shown to be directly relevant to the issues in the proceeding. Further, they have not been shown to be relevant at all in the sense of tending to support Mr Mathews’ case or support or to adversely affect the State’s case.

21    Having regard to r 20.11, I do not consider that it is appropriate to order non-standard or more extensive discovery against the State of Queensland. Therefore Mr Mathews’ application seeking such discovery must be dismissed.

22    Mr Mathews seeks non-party discovery from Clark’s Logan City Bus Service (Qld) Pty Ltd. He seeks discovery of documents that are directly relevant to his proceeding, and also those that are indirectly relevant. Clark’s Logan City Bus Service (Qld) Pty Ltd does not oppose an order that it discover documents that are directly relevant, but opposes any order for discovery for documents that are only indirectly relevant.

23    Rule 20.23 applies only to documents in the non-party’s control that are directly relevant to an issue raised on the pleadings or affidavits. I may only make an order that a non-party provide discovery of documents directly relevant to the issues.

24    Clark’s Logan City Bus Service (Qld) Pty Ltd submits that Mr Mathews should be ordered to pay its costs and expenses of making discovery and giving production. Mr Mathews opposes such an order on the basis that he is impoverished, and further, that the employees of Clark’s Logan City Bus Service (Qld) Pty Ltd were complicit in conduct that he complains of against the State’s employees. I consider that it is appropriate that Mr Mathews be required to pay the reasonable costs and expenses of the non-party making discovery and giving production, as it should not be left out of pocket.

25    Mr Mathews has sought discovery against a number of other entities. He argues that, in truth, these are not non-parties, but are merely emanations of the State, although I note that in each application he describes the party to which it is directed as a “third party”. Mr Mathews’ submission may be doubted, but I am willing to assume that it may be correct for present purposes.

26    Mr Mathews seeks discovery from the following entities:

    Brisbane City Council

    Campbell Newman

    Crime and Misconduct Commission

    Douglas Porter (Former Registrar of the University of Queensland)

    Office of the Information Commissioner

    Legal Services Commission

    St John's College

    Council of St John's College

    Brisbane Marketing Pty Limited

    University of Queensland

    Corporation of the Synod of the Diocese of Brisbane

27    Mr Mathews seeks discovery from these entities to establish a case that they have discriminated against him over a period of many years. He describes this as:

…long term targeting of me with high handed and oppressive bullying program continuum by the State, widely defined to include statutory authorities and commissions.

28    This alleged long term targeting is clearly outside the scope of the complaint to the Commission and the proceedings before this court. Mr Mathews has not demonstrated that any of these entities have or are likely to have any documents in their control that are directly relevant, or even indirectly relevant, to the issues in this proceeding. Each of the applications seeking discovery from the entities listed earlier will be dismissed.

29    The State seeks an order to the following effect:

That the applicant shall be permitted to use or disclose the documents obtained by him pursuant to the order for discovery made by the court on 6 February 2014, the contents and information contained in them, only for the purpose of these proceedings and not for any other purpose.

30    In support of its application, the State relies upon the fact that Mr Mathews has published on a website a number of insulting and derogatory comments about an officer of Crown Law, as well as a letter sent by that officer to Mr Mathews. The State does not suggest that Mr Mathews has published any documents produced by the State upon discovery. It seeks to draw the inference from the fact that Mr Mathews has published correspondence from Crown Law on his website that he is likely to also publish documents obtained on discovery.

31    However, the State does not suggest that there was any obligation of confidentiality which prevented Mr Mathews from publishing the letter from Crown Law on his website. Mr Mathews acknowledges that he is under an implied undertaking to only use documents produced under an order for discovery for the purpose for which access was given and for no other purpose. He also acknowledges that he is not permitted to publish on any website any such documents.

32    In these circumstances, I do not consider that the State has demonstrated that there is a risk that Mr Mathews will breach his implied undertaking and I do not consider it appropriate to make the order as sought by the State. The State’s application will be dismissed.

33    I raised with the parties the question of whether the proceeding ought to be remitted to the Federal Circuit Court. Section 46PO(1) of the Australian Human Rights Commission Act provides that if a complaint has been terminated by the President of the Commission, any person who is an affected person in relation to the complaint may make an application to either the Federal Court or the Federal Circuit Court alleging unlawful discrimination. Rule 27.11 of the Federal Court Rules provides that:

A party may apply to the Court to transfer to the Federal Circuit Court of Australia a proceeding other than an appeal.

34    Rule 1.40 allows the Court to “exercise a power mentioned in these Rules in the proceeding…on its own initiative”.

35    Mr Mathews indicated that he considered it appropriate for the proceeding to be transferred to the Federal Circuit Court, and the State did not adopt any particular view as to that course. I consider that it is appropriate to transfer the proceeding to the Federal Circuit Court.

Associate:

Dated:    30 April 2014