FEDERAL COURT OF AUSTRALIA

Mathews v State of Queensland [2014] FCA 1280

THE COURT ORDERS THAT:

The matter be dismissed against the third party with the third party’s costs of the proceeding and appeal to be taxed unless otherwise agreed.

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

REASONS FOR JUDGMENT

1    Mr Mathews has filed an originating application for relief under s 39B of the Judiciary Act 1903 (Cth) (“Judiciary Act”) against the State of Queensland in respect of a proceeding in BRG363 of 2014 in the Federal Circuit Court of Australia. In his supporting affidavit filed 16 September 2014 Mr Mathews claimed that he had been denied natural justice by the Federal Circuit Court because, inter alia:

    the primary judge had required him to appear in real time;

    Mr Mathews had disabilities which preclude him from speaking or arguing in real time;

    the primary judge was biased.

2    Last Thursday I made ex tempore orders in favour of the third party in this proceeding, Clark’s Logan City Bus Service (Qld) Pty Ltd (“Clark’s”), namely:

1.    The matter be dismissed against the Third Party with the Third Party’s costs of the proceeding and appeal be taxed unless otherwise agreed.

3    At the time of making those orders I gave my reasons. I now set out those reasons more precisely in written form.

4    The history to this application is set out in the submissions of the State filed 21 November 2014. In summary, Mr Mathews originally applied to the Federal Court of Australia under s 46PO of the Australian Human Rights Commission Act 1986 (Cth) (“the Act”), alleging unlawful discrimination by the State as a respondent to a complaint by Mr Mathews which was terminated by a delegate of the President of the Australian Human Rights Commission (“the Commission”) pursuant to s 46PH of the Act. The complaint of Mr Mathews was that on 5 March 2013 Translink officers required him to leave a Clark’s Logan City bus because he was accompanied by his assistance dogs, which Mr Mathews claimed constituted unlawful discrimination. On 6 February 2014 and 24 April 2014 the application was heard in this Court, with Mr Mathews attending by telephone. Rangiah J ordered the proceeding be transferred to the Federal Circuit Court. Despite a number of applications by Mr Mathews which were resolved against him – Mathews v State of Queensland [2014] FCA 424 and Mathews v State of Queensland [2014] FCA 574 – the matter proceeded in the Federal Circuit Court.

5    The matter was listed for a directions hearing in the Federal Circuit Court on 16 June 2014. Mr Mathews had applied for the proceedings to be conducted on the papers on the basis that he was unable to appear and represent himself in real time. As there was no appearance by Mr Mathews, the primary judge adjourned the hearing to 23 June 2014 and directed that Mr Mathews appear in person on that date: Mathews v State of Queensland [2014] FCCA 1657. Mr Mathews made no appearance on 23 June 2014 and the primary judge dismissed all outstanding applications for want of appearance: Mathews v State of Queensland (No 2) [2014] FCCA 1658. Mr Mathews brought a number of further interlocutory applications in the Federal Circuit Court, however did not appear at the hearing of any of them and those applications were dismissed for want of appearance: Mathews v State of Queensland (No 3) [2014] FCCA 1977 and Mathews v State of Queensland (No 4) [2014] FCCA 1978.

6    On 14 October 2014 I made orders in a directions hearing concerning the current matter, in the absence of Mr Mathews. Order 3 of that day required attendance by all parties by telephone or in person at the next directions hearing on 20 November 2014.

7    Between directions hearings a number of interlocutory applications had been filed. They were:

    An interlocutory application filed by the State on 6 November 2014 seeking summary dismissal of the proceedings instituted by Mr Mathews and costs.

    An interlocutory application filed by Clark’s on 6 November 2014 seeking orders pursuant to r 9.08 of the Federal Court Rules 2011 (Cth) (“Federal Court Rules”) that it cease to be a party to the proceedings, or alternatively an order pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) (“Federal Court Act”) and r 26.01 of the Federal Court Rules that judgment be given for it against Mr Mathews, and costs.

    An application filed by the State on 7 November 2014 seeking vexatious litigant orders pursuant to s 37AO of the Federal Court Act.

8    When the matter returned before me on 20 November 2014 there was no appearance by Mr Mathews. I note from the Court file that Deputy District Registrar Lynch emailed Mr Mathews on 13 November 2014 inviting him to contact the Registry should he wish to appear by telephone. No response from Mr Mathews appears on the Court file.

9    At the directions hearing the State sought directions taking the matter to hearing. However Clark’s sought orders in accordance with their interlocutory application of 6 November 2014.

10    After hearing submissions from Counsel for Clark’s, and having regard to Mr Mathews’ submissions of 19 November 2014 in which Mr Mathews addressed Clark’s interlocutory application, I ordered that the matter be dismissed as against Clark’s and that Mr Mathews be liable to pay its costs.

11    I made these orders for four reasons.

12    First, s 46PO of the Act provides relevantly as follows:

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.

Note:    Part IVA of the Federal Court of Australia Act 1976 allows representative proceedings to be commenced in the Federal Court in certain circumstances.

(2)    The application must be made within 60 days after the date of issue of the notice under subsection 46PH(2), or within such further time as the court concerned allows.

(3)    The unlawful discrimination alleged in the application:

(a)    must be the same as (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.

13    This Court has previously found that the effect of s 46PO of the Act is that the Court has no jurisdiction to permit inclusion of a person as a party in discrimination proceedings if the person was not a party to the original complaint to the Commission: Bahonko v Sterjov [2007] FCA 359 at [36]; Ioannou v Hellenic Community Aged Care [2012] FCA 1227 at [17]; O’Donoghue v State of Western Australia [2013] FCA 903 at [22]-[24]. It is not in dispute that Clark’s was not a party in the discrimination proceedings before the Commission. It follows that it cannot be a party to these proceedings, which clearly arise from the complaint of Mr Mathews terminated by the President of the Commission.

14    Second, I have perused Mr Mathews’ written submissions opposing the application by Clark’s to be removed as a party or have the proceedings against them dismissed. It appears from these submissions that Mr Mathews wishes to expand the terms of his original complaint to the Commission by adding a claim in tort against Clark’s. This is inconsistent with the terms of s 46PO of the Act. Further, much of Mr Mathews’ submissions constitutes scandalous allegations against the legal representatives of Clark’s and Translink officers involved in the incident of which he complained to the Commission. I am not assisted by Mr Mathews’ submissions.

15    Third, s 31A(2)(b) of the Federal Court Act permits the Court to give summary judgment against an applicant if (inter alia) the Court is satisfied that the applicant has no reasonable prospect of successfully prosecuting the proceeding. Rule 26.01(1)(a) of the Federal Court Rules is in similar terms. In light of matters I have set out in this judgment I am satisfied that Mr Mathews has no reasonable prospect of successfully maintaining an action in this proceeding against Clark’s.

16    Finally, it is usual that costs follow the event: Oshlack v Richmond River Council (1998) 193 CLR 72. There is no reason to depart from this rule in these circumstances. While Mr Mathews has framed his application to this Court in terms of the Court’s originating jurisdiction he is also seeking relief more usually sought in an appeal, namely the stay of orders of the Federal Circuit Court. Accordingly, it is appropriate to make the orders sought by Clark’s to similarly extend to costs recoverable by Clark’s to costs incurred in the Court below.

Associate:

Dated:    26 November 2014