FEDERAL COURT OF AUSTRALIA

Picos v Australian Federal Police [2015] FCA 118

THE COURT ORDERS THAT:

1.    The interlocutory application filed on 24 February 2015 is dismissed.

2.    The interlocutory application filed on 9 February 2015 seeking orders that Perry J be disqualified is dismissed.

3.    The applicant’s applications filed on 24 November 2014 and 2 February 2015 to amend the originating application are dismissed.

4.    The originating application filed on 30 July 2014 is summarily dismissed under s 31A(2) of the Federal Court of Australia Act 1976 (Cth) and rule 26.01 of the Federal Court Rules 2011 (Cth).

5.    The respondent is awarded its costs as agreed or assessed.

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

REASONS FOR JUDGMENT

TABLE OF CONTENTS

1.    INTRODUCTION

1    The Australian Federal Police (AFP), seeks summary dismissal of an application by Ms Picos for damages for alleged sexual harassment and unlawful discrimination against her in contravention of s 28G of the Sex Discrimination Act 1984 (Cth) (the SD Act). Specifically, the AFP contends that the Court lacks jurisdiction because a statutory precondition to the Court’s jurisdiction to entertain a claim under the SD Act is not satisfied, there having been no termination of any complaint by Ms Picos to the Australian Human Rights Commission (AHRC). Ms Picos has also applied for me to disqualify myself from continuing to sit on the proceedings.

2    For the reasons which I explain below:

(1)    I considered that it was fair and appropriate to hear and determine the application for summary dismissal notwithstanding that Ms Picos did not appear at the hearing;

(2)    there are no proper grounds on which I should disqualify myself and the application for disqualification must be dismissed;

(3)    this Court lacks jurisdiction to entertain the proceedings; and

(4)    the applications to amend the originating application to plead causes of action in trespass and assault and amend the relief sought should be refused.

2.    BACKGROUND

2.1    Procedural steps before the hearing on 5 February 2015

3    In circumstances where the applicant did not appear at the hearing of the interlocutory applications, it is necessary to set out with some care the procedural history of the matter. In addition, the application by Ms Picos that I disqualify myself is based primarily upon my conduct at a directions hearing in a different proceeding instituted by her which was listed for directions on the same day as this, as well as a number of other actions instituted by Ms Picos.

4    By her originating application filed on 30 July 2014, Ms Picos alleges sexual harassment and unlawful discrimination against her on 11 July 2014 by the AFP contrary to s 28G of the SD Act and seeks an order for damages in the sum of $1 billion. That application states that it is accompanied by, relevantly, “[a] notice of termination of complaint given by a Deputy Director … on behalf of the President of the Australian Human Rights Commission on 18 July 2014”, being a letter to Ms Picos dated 18 July 2014 from the AHRC. The contents of the letter are set out below at [45] below. The application was also accompanied by an affidavit affirmed by Ms Picos in which she set out details of the alleged sexual harassment.

5    By an application filed on 24 November 2014, the applicant sought leave to amend her originating application. The proposed amended originating application was subsequently annexed to an affidavit affirmed by Ms Picos on 12 January 2015. The proposed amendments were to include a claim for trespass and assault against the respondent also allegedly on 11 July 2014.

6    On 17 December 2014, the AFP applied for the application to be dismissed under s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act) and rule 26.01 of the Federal Court Rules 2011 (Cth) (FCR), or in the alternative pursuant to FCR rule 13.01(1)(a). The effect of rule 31A(2) is that the Court may give summary judgment for the respondent where it is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding. Rule 26.01 provides for a party to apply for such an order which must be accompanied by an affidavit. The accompanying affidavit sworn by the solicitor for the AFP filed on the same date as the application for summary dismissal deposed that the order for summary dismissal was sought on the basis “that the applicant has no reasonable prospect of successfully prosecuting the proceeding.” The deponent also explains that:

The basis for seeking these orders is that this Court has no jurisdiction to hear the applicant’s application pursuant to s 46PO of the AHRC Act because:

6.1    a complaint has not been terminated by the President under section 46PE or 46PH of the AHRC Act; and

6.2    the President has not given a notice to the applicant under subsection 46PH(2) of the AHRC Act in relation to the termination.

7    On 12 December 2014, Ms Picos appeared in person at a directions hearing before Bennett J at which four other matters instituted by Ms Picos alleging sexual harassment against other respondents were also listed, namely Picos v Seven West Media & Ors (NSD 741 of 2014), Picos v Servcorp (NSD 766 of 2014), Picos v Northern Sydney Local Health District (NSD 767 of 2014) and Picos v Servcorp & Ors (NSD 1179 of 2014). The AFP appeared at that directions hearing represented by its solicitors. At the directions hearing, Ms Alexander for the AFP advised the Court that the AFP would submit that there was a question of jurisdiction in the matter because there had been no decision to terminate any complaint and that the document attached to Ms Picos’ originating application is not a notice of termination of a complaint. Ms Alexander also advised that she had seen the applicant’s proposed amendments but that the AFP’s position was that, if the Court had no jurisdiction to deal with the application under the SD Act, then the further claims could not be appended to it.

8    Given the similarity between the jurisdictional issues raised in these proceedings and those raised in a number of the other matters, Bennett J listed all of the matters returnable on 5 February 2015. Her Honour concluded the directions hearing, emphasising that:

Now, just to make it absolutely clear, everything is coming back on jurisdictional strikeouts on the 5th. There’s either notice being given to Ms Picos as to agreement as to amended pleadings or, otherwise, they will be dealt with by Perry J on the 5th if they stand after the jurisdictional issues are run. And, Ms Picos, you have to file your evidence in relation to the jurisdictional questions in all of the other matters, which seems to be hinging on the – what has happened in the Human Rights Commission, if that’s what it’s called now – it’s called now – anyway, as to whether things have been lodged, not lodged, terminated, not terminated, if you can get that evidence on by the 23rd and you are to file all your evidence in support of your application in the Seven [West Media matter (NSD 741 of 2014)] by that same date. (emphasis added)

9    The orders made by Bennett J in the current proceedings were that:

1.    The Respondent file and serve any interlocutory application seeking summary dismissal of the application or summary judgment and an affidavit in support on or before 4 pm 19 December 2014.

2.    The Applicant file and serve any evidence in reply by 4 pm 23 January 2015.

3.    Any and all interlocutory applications [sic] for amendments to the originating application or seeking summary dismissal of the application or summary [sic] be listed for hearing before Perry J at 10:15 am on Thursday 5 February 2015.

10    Pursuant to these directions, on 29 December 2015 Ms Picos filed an affidavit affirmed by her on the same day deposing to having lodged a written complaint online to the AHRC that set out factual allegations against police officers said to be members of the AFP.

11    On 8 January 2015, Ms Picos filed a statement of claim.

12    Ms Picos filed written submissions on 27 January 2015, entitled “Applicants First Legal Submissions” in which she argued that she had made a complaint, the complaint had been terminated and the Court had jurisdiction.

13    On 2 February 2015, Ms Picos made a further application for leave to amend the relief sought in the originating application to $16 billion and an injunction requiring the AFP to investigate alleged fraud by the Queensland Registrar of Titles, the Commonwealth Bank of Australia and a firm of lawyers in relation to an alleged transfer of title over land located in Queensland. That application was supported by an affidavit sworn by Ms Picos on 5 February 2015 and was filed on the same day. In her affidavit, Ms Picos deposes to having commenced proceedings in the Supreme Court of the ACT against the Commonwealth Bank of Australia on 12 May 2014 in relation to the transfer seeking $15 billion (listed to be heard in February 2015). She also alleges that a caveat against the property expired as a consequence of the AFP removing her from her Barton office on 11 July 2014, which matters are said to be pleaded also in the ACT Supreme Court proceedings.

14    The AFP filed written submissions on 3 February 2015 in support of its application for summary dismissal of Ms Picos’ application on jurisdictional grounds and in opposition to Ms Picos’ application to file an amended originating application to add the claims for trespass and assault.

2.2    The hearing on 5 February 2015

15    In line with the directions by Bennett J, the five matters to which I have referred were listed before me on 5 February 2015, with those in Seven West Media and Hyatt Hotel Canberra (NSD 23 of 2015) being listed first for mention and directions respectively. After inquiring of counsel in these matters and the two Servcorp matters about likely timing, I stood this matter down, together with the Sydney Local Health District matter, to not before 11.30am.

16    However, at the conclusion of the directions hearing in the Hyatt Hotel matter, Ms Picos decided that she would not remain and packed up her documents and left the courtroom. Before she took that course, I urged her to remain and avail herself of the opportunity to appear and respond to the interlocutory applications listed before me: see below at [19]. She declined to do so. After Ms Picos departed, I adjourned the list for a short time in order to give Ms Picos the opportunity to reconsider her position and return to the courtroom.

17    In the circumstances, when this matter was later called on, I asked the court officer to call the matter outside the courtroom, which she did. Upon there being no appearance by Ms Picos, counsel for the respondent did not consider there was any reason why the hearing should not proceed as listed. I also consider that this was the appropriate course to take. Ms Picos was well aware of the fact that the application for summary dismissal of her application was listed and had been aware of that since the directions hearing on 12 December 2014. She was also well aware of the issues and had filed her evidence and submissions. It was her choice not to remain for the hearing despite it being clear from my comments to her that the other matters would still proceed. In this regard I note that it is well established that procedural fairness requires only the provision of an opportunity to be heard and does not require that the person to whom it is extended take advantage of that opportunity: Fletcher International Exports Pty Ltd v Lott [2010] NSWCA 63 at [42] (Giles JA, with whom the remainder of the Court agreed). I also took into account that Ms Picos did not seek to have the matter adjourned before she decided to leave the courtroom and that the respondents were ready to argue the matter with counsel in attendance. Furthermore, if the respondents were correct in their objection on jurisdictional grounds, then the matter must be dismissed and it was better for that to occur sooner rather than later with consequential escalation in costs.

3.    THE APPLICATION FOR DISQUALIFICATION

18    On 9 February 2015, Ms Picos filed an interlocutory application for me to disqualify myself on the ground of “bias”. I made orders later that day in chambers for the filing of written submissions by the applicant in support of her application for disqualification by 4.00pm on 12 February 2015, with any written submissions in response by the respondent to be filed and served by 4.00pm on 17 February 2015. At the same time, I also afforded Ms Picos an opportunity to file and serve by 12 February 2015 written submissions in response to any matters raised at the hearing of the AFP’s interlocutory application, with the AFP to file any reply on any new issues raised by Ms Picos by 4.00pm on 17 February 2015. In those directions, I noted that Ms Picos may avail herself in the ordinary course of the transcript of the hearing in this and her other matters. In due course, submissions were filed by both parties, with the AFP submitting, correctly in my view, that there was no proper basis made out for me to disqualify myself.

19    It is apparent from the written submissions filed by Ms Picos that the application for me to disqualify myself from the hearing and determination of these proceedings was primarily based upon what had occurred in the Hyatt Hotel matter earlier called on for directions on 5 February 2015. It is convenient to set out in full the transcript of that hearing (after appearances) as follows.

HER HONOUR: … Now, my understanding is that this matter is in the docket of Yates J, and he has intimated to me that he would be available to hear the interlocutory applications and the substantive matter for directions on either 18, 19 or 20 February 2015 at 10.15 am, estimating a hearing of no more than one hour. Now, is – are any of those dates convenient? Ms Picos, 18, 19 or 20 February, would you be available on any of those days, then, for a hearing before Yates, J.

MS PICOS: Yes.

HER HONOUR: Thank you very much. Yes. Mr Orlov.

MR ORLOV: The 19th, your Honour.

HER HONOUR: The 19th.

MR ORLOV: I’m not available on the 18th or the 20th.

HER HONOUR: Okay. Well, then in that case, I will make an order listing the various interlocutory applications that have been made in this matter before Yates J, together with the substantive matter for directions on 19 February for one hour at 10.15 am.

MS PICOS: Your Honour, I do object to Snedden Hall & Gallop Lawyers and Mr Orlov appearing in the matter on behalf of the respondent unless they can demonstrate that they, in fact, act for Hyatt Hotel Canberra, as it appears from the notice of address of – for service filed that they act for a foreign entity which is Tropical Almond Development and that entity is not the holder of the business name Hyatt Hotel Canberra.

HER HONOUR: Now, I’m aware that you’ve made an interlocutory application in that regard. What I’ve done to adjourn that off so it will be heard by Yates J, and you can make the application before his Honour at that point in time. Sorry- - -

MS PICOS: May I have it on the record that I formally object to the – to Snedden Hall & Gallop Lawyers and Mr Orlov appearing in the matter at any stage before demonstrating that they in fact represent the respondent, as I know Mr Orlov and Snedden Hall & Gallop Lawyers from other matters, and they tend to - - - 

HER HONOUR: I’m not going to hear allegations of the kind that I’ve seen appearing in your affidavit. One doesn’t make allegations of fraud and the like, as you currently have, without there being very compelling evidence which, at the moment, is not before this court. Now, I’ve intimated if you have an application, if you wish to press that application, you will have the opportunity to do so before Yates J, but I’m not going to hear that this morning and start depriving parties of the legal representatives who are currently appearing for them on the court record.

MS PICOS: Well - - - 

HER HONOUR: So I think that that’s an end of that matter thank you, Ms Picos, for the time being. You will have the opportunity to make that application, should you wish to pursue it, before his Honour at the time that I’ve listed. Now - - - 

MS PICOS: Yes, I do have - - - 

HER HONOUR: I’m going to ask for the next matter to be called on. Thank you.

MS PICOS: Well, I do not agree to this course of action.

HER HONOUR: Well, your agreement is not necessary. Thank you, Ms Picos. I’ve made - - - 

MS PICOS: I am entitled to be heard.

HER HONOUR: You will be heard, but now is not the time. I’ve set the matter down, and that’s when the matter will be heard, and that’s an end of it. Thank you, Ms Picos.

MS PICOS: I will be removing myself from appearing in any further matters before you today.

HER HONOUR: Well, Ms Picos, that’s your choice, but the – all I have done is to list the matter in an appropriate way before another judge in order to have your interlocutory application and the other applications heard. I would urge you to remain, although the choice, of course, is yours, because the other matters are listed, and if you have submissions to make in relation to the applications made in those other matters, I would wish you to avail yourself of the opportunity to be heard on them.

MS PICOS: I am not here today to be insulted or lied about. I have filed ASIC records in relation to the relevant business entities, and the fraud is clear. And I have just been lied about on the record, cut off, and insulted, and therefore there is no benefit in me appearing further before the court.

HER HONOUR: Ms Picos, I am not going to argue with you. It’s not appropriate for the submissions of the kind that you have just made to be made to the court. As I have explained, all I am endeavouring to do is to give you an opportunity to be heard and to urge you to avail yourself of that opportunity.

20    The reference in the passage quoted above to the interlocutory application made by Ms Picos is a reference to an interlocutory application in which Ms Picos seeks interrogatory orders that, among other things, the Notice of Address for Service filed by the respondent in the Hyatt Hotel proceedings is declared fraudulent and struck out, and that the respondent’s solicitor be banned from appearing in Federal Court proceedings in which Ms Picos is an applicant. A short affidavit was filed in support of the interlocutory application in which various assertions of fraud were made without elaboration beyond relying upon an ASIC Company Extract and Current Details for an ABN annexed to her affidavit. That interlocutory application was subsequently dismissed with costs on 19 February 2015 by Yates J: Picos v Hyatt Hotel Canberra [2015] FCA 101.

21    In her written submissions in support of the application for bias, Ms. Picos submits that:

(a)    the fraud alleged against the solicitors “is obvious and only requires one to check the ASIC records duly filed”;

(b)    “Perry J, said to the Applicant the Court would not entertain an allegation of fraud ‘unless it was obvious’”;

(c)    “Perry J, would not allow the Applicant to say a single word on the record”; and

(d)    “[t]he Applicant is concerned that the Applicant may not be permitted to speak in proceedings that are transcribed and recorded in real-time”

22    The test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias, allegedly here prejudgment, is “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide”: Michael Wilson & Partners Ltd v. Nicholls (2011) 244 CLR 427; [2011] HCA 48 (Wilson) at [31] (Gummow A-CJ, Hayne, Crennan and Bell JJ). Allegations of apprehended bias must be firmly established: Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka (2001) 206 CLR 128; [2001] HCA 23 at 135-136 [20] (approving R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 553-554).

23    In applying that test, it must be borne in mind that an inquiry about the apprehension of bias is distinct from any inquiry about actual bias. As was explained in the joint judgment in Wilson at [33]:

An inquiry about actual bias in the form of prejudgment would require assessment of the state of mind of the judge in question. No doubt that would have to be done, at least for the most part, on the basis of what the judge had said and done. But to allow an inquiry about whether the judge had in fact prejudged some issue to enter into a debate about what a fair-minded lay observer might apprehend is to introduce considerations that are irrelevant to the issue that is to be decided when a party submits that there is or was a reasonable apprehension of bias.

24    In this regard, the hypothetical lay observer, while not a lawyer, is not taken to be uninformed or uninstructed about the law or ordinary judicial practice: Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 (Johnson) at 493 [13] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ). Rather, such a person may be expected to have taken the trouble to inform themselves of the basic considerations or context relevant to making a fair judgment, and is taken to be neither complacent nor unduly sensitive or suspicious: British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; [2011] HCA 2 at 306 [47]; Johnson at 508-509 [53]. Thus, as Kirby J further explained in Johnson at [53], “[a]cting reasonably, the fictitious bystander would not reach a hasty conclusion based on the appearance evoked by an isolated episode of temper or remarks to the parties or their representatives, which was taken out of context.”

25    Two steps must be addressed in considering an application for disqualification. As Gleeson CJ, McHugh, Gummow and Hayne JJ held in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 377; [2000] HCA 63 at [8]:

First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an “interest” in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias being assessed.

26    Equally, as the joint judgment stated in Wilson at [63], “[s]o too… the bare assertion that the judge appeared to be biased through prejudgment would be of no assistance without articulation of the connection between the events giving rise to the apprehension of bias through prejudgment and the possibility of departure from impartial decision making.” (emphasis added)

27    The importance of ensuring that litigants have their disputes determined by judge who is impartial and appears so to be, is based upon the need for public confidence in the administration of justice: Johnson at [12] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ). Conversely, it is the duty of the judge to sit where proper grounds for disqualification do not exist. As Mason J emphasized in Re J.R.L.; ex parte C.J.L. (1986) 161 CLR 342 at 352:

Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.

28    In the present case, I have reached the view that there are no proper grounds for me to disqualify myself and therefore that my duty is to continue to sit. Accordingly, I refuse the application for disqualification. I do not consider first that the comments made by me at the directions hearing in the Hyatt Hotel matter suggest prejudgment in that matter or more relevantly in any of the other matters listed before me involving Ms Picos on that day. Irrespective of how Ms Picos may have interpreted my statements, the test for apprehended bias is objective (Wilson at [32]-[33]; Johnson at [12]). In the Hyatt Hotel matter where the statements were made, the matter was in the docket of another judge. As I explained at the hearing, therefore, that judge was to hear and determine the interlocutory applications in that matter and Ms Picos accepted the dates proposed for the listing of that matter before the docket judge. There was therefore nothing further to be said on that application before me as it was apparent that I was not hearing it.

29    Moreover, as I pointed out at the hearing, allegations of fraud are not lightly to be made. It is well established that a court is careful not to find fraud unless it is distinctly pleaded and proved: SZFDE v Minister for Immigration (2007) 232 CLR 189 at [15] (the Court); see also rule 16.42, FCR, and Forrest v Australian Securities and Investments Commission (2012) 247 CLR 486; [2012] HCA 39 at [26] as to the requirements for pleading fraud. It is not sufficient to allege facts from which fraud might be inferred but which are also consistent with innocence: Davy v Garrett [1877] 7 Ch D 473 at 489. These principles apply no less when allegations are sought to be raised by an unrepresented litigant: e.g. Bhagat v Global Custodians Ltd [2002] FCAFC 331 at [13]. I do not consider that a lay observer being appraised of the seriousness of the allegations and of the potential consequences sought against the respondent in the Hyatt Hotel proceedings, namely, to deprive the respondent of its legal representative, would consider it inappropriate for me to decline to permit the applicant to make allegations of fraud from the Bar table in circumstances where I was not determining the application and the respondent was therefore not in a position fairly to respond save by counter allegation.

30    Furthermore I consider that a fair-minded lay observer would have considered from my attempts to urge Ms Picos to remain for the interlocutory applications in the other matters listed before me that day to make her submissions on those applications, and from my adjourning the list for a short time to allow her to reconsider her position, that I had not prejudged the outcome of those other applications. There is no logical connection between my declining to hear Ms Picos further on an application listed before another judge, on the one hand, and the question of whether I would afford her a fair hearing on those interlocutory applications in matters which were in fact listed before me, on the other hand.

31    In these circumstances, I do not consider that there is any substance in the application for disqualification. There must be a real possibility of apprehended bias (Livesey v NSW Bar Association (1983) 151 CLR 288 at 293-294) and none has been demonstrated in the present case. Equally and for the same reasons, to the extent that actual bias is alleged, I do not consider that anything said or done by me could lend any support to so serious an allegation: see Wilson at [33] as to the manner in which such an allegation is to be determined.

32    Finally, it falls to deal with three other matters raised in the written submissions filed by Ms Picos on the application for disqualification which appear to me to be self-evidently without merit.

(a)    First, Ms Picos appears to rely upon a comment made by me on her “being self-acting”. Ms Picos does not identify when the comment was allegedly made or the context in which it was allegedly made. That being so, it is not disputed that Ms Picos is self-represented and any statement to that effect could not in itself demonstrate bias or any reasonable apprehension of bias.

(b)    Secondly, Ms Picos suggests that it was inappropriate for the solicitor in the Hyatt Hotel proceedings to write to the associate to Yates J to seek an adjournment of the directions hearing before him on 2 February 2015 to another day which led to the matter being listed before me for directions, and that this should lead me to recuse myself. However, no reasonably informed by-stander could infer bias based upon a communication as to a purely procedural matter between the solicitors for a party and the associate to a judge, and such communications occur every day in the courts.

(c)    Finally, Ms Picos submits that “the Application by the Respondent (Australian Federal Police) for summary judgment or dismissal is so absurd, harsh, embarrassing and oppressive, given the Court’s jurisdiction on federal matters per section 39B of the Judiciary Act, that the Court should have summarily dismissed the Respondent’s Application, possibly without a word from the Applicant. The Court did not. Accordingly, the Applicant infers bias.” Again there is no substance in the alleged ground for disqualification. The respondent is entitled to bring such an application and have it ruled upon by the Court. It is then for the Court to determine whether that application should be allowed having afforded all of the parties an opportunity to be heard on it. No bias can be inferred from the extension of such an opportunity to Ms Picos.

4.    THE APPLICATION FOR SUMMARY DISMISSAL

4.1    The jurisdictional issue

33    The AFP seeks summary dismissal on the ground that the Court has no jurisdiction to entertain these proceedings. Specifically, the AFP contends that proceedings may be instituted in the Federal Court for sexual harassment or discrimination contrary to the SD Act only where the conditions in s 46PO of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) have been met, that is, where a complaint to the AHRC has been terminated. Ms Picos, however, submits that the Court does have jurisdiction on the grounds that that precondition has been met.

4.2    Statutory preconditions for commencing proceedings in the Federal Court for a contravention of the SD Act

34    Part IIB of the AHRC Act establishes a regime for redress for “unlawful discrimination”. “Unlawful discrimination” is defined in s 3 of the AHRC Act to mean any acts, omissions or practices that are unlawful under Part 4 of the Age Discrimination Act 2004, Part 2 of the Disability Discrimination Act 1992, Part II of the Racial Discrimination Act 1975, and, relevantly, Part II of the SD Act (including any conduct which is an offence under s 94) in which s 28G appears (collectively, the Unlawful Discrimination Laws). Section 28G makes it unlawful for a person to sexually harass another person in the course of providing, seeking or receiving goods or services.

35    Part IIB of the AHRC Act prescribes a number of steps:

a)    lodging a written complaint with the AHRC alleging unlawful discrimination (s 46P);

b)    referring the complaint to the President of the AHRC (s 46PD);

c)    requiring the President to inquire into the complaint and attempt to conciliate it (s 46PF(1));

d)    providing that the President may terminate a complaint on a number of grounds including that the alleged unlawful discrimination is not unlawful discrimination, the complaint was lodged more than 12 months after the alleged unlawful discrimination occurred, or the President is satisfied that the complaint was trivial, vexatious, misconceived or lacking in substance (s 46PH);

e)    affording the affected person the right, where a complaint is terminated and the President has given notice, to apply within 60 days to the Federal Court or the Federal Circuit Court alleging unlawful discrimination by one or more of the respondents to the terminated complaint (s 46PO(1) and (2));

f)    limiting the right to pursue a claim to unlawful discrimination through the courts to unlawful discrimination which is the same, or the same in substance, as that which was the subject of the terminated complaint, or arises out of the same acts, omissions or practices (s 46PO(3));

g)    conferring power on the court to grant a range of remedies if satisfied that there has been unlawful discrimination by any respondent, including declaratory relief and compensatory damages (s 46PO(4)).

36    It is well established that this regime is an exclusive one for remedying contraventions of the Unlawful Discrimination Laws, including the SD Act: Bropho v Western Australia [2004] FCA 1209 at [29] and [51]-[53] RD Nicholson J (Bropho) and French v Gray (2013) 217 FCR 404; [2013] FCA 263 at [149]-[151] Besanko J (holding that Re East; ex parte Nguyen (1998) 196 CLR 354 at [26], [31]-[32] continued to apply notwithstanding removal of the complaint procedure from (in those cases) the RDA and its re-enactment in Part IIB of the AHRC Act). In other words, a contravention of s 28G of the SD Act gives rise only to a right to invoke the procedures, and to obtain the remedies provided for, in the AHRC Act. As Katzmann J held in Dye v Commonwealth Securities Limited [2010] FCA 720 at [78]-[79]:

Just like the Racial Discrimination Act did when it was enacted, the AHRC Act expressly provides a private remedy for a contravention of s 94 [of the SD Act] and prescribes detailed procedures for obtaining it. That is the remedy the applicant has invoked. In my view it is an exclusive one. The only right that the Act creates is a right to engage the processes prescribed by it and the duties or liabilities that are created are correlative to that right: Re East; Ex parte Nguyen [1998] HCA 73; (1998) 196 CLR 354 at [31]-[32].

It makes no sense for the legislature to establish an elaborate process for the vindication of rights but at the same time to contemplate the use of common law remedies working alongside and independently of it. To do so would defeat the purpose of the system of redress afforded by the Act, which promotes conciliation over litigation. It would undermine s 46PO, which limits the circumstances in which litigation may be pursued. In my opinion, an action as [sic] the case for a breach of s 94 of the SDA is not available.

37    Her Honour’s decision in this respect was upheld on appeal in Dye v Commonwealth Securities Limited (No. 2) [2010] FCAFC 118 at [71] which held that neither the AHRC Act, nor the SD Act, created or gave rise to any common law cause of action for relief.

38    That being so, there is no jurisdiction to hear an allegation of unlawful discrimination under s 28G of the SD Act unless the conditions in s 46PO of the AHRC Act are satisfied: Bropho at [53]. Justice Gleeson reached the same conclusion in dismissing so much of a claim made by Ms Picos as alleged sex discrimination in Picos v Servcorp Limited [2014] FCA 922 at [22].

4.3    Are the statutory preconditions for commencing proceedings in the Federal Court satisfied here?

39    Section 46PO of the AHRC Act provides that:

(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.

40    Thus, s 46PO requires both that a complaint has been terminated and that notice has been given of its termination before proceedings may be instituted in this Court. These are, having regard to the matters to which I have already referred, jurisdictional preconditions to the institution of a claim in the courts alleging unlawful discrimination.

41    The AFP contends that Ms Picos has not engaged these processes by lodging any complaint with the AHRC about the conduct of which she now seeks to complain and, therefore, that the jurisdictional preconditions to these proceedings in s 46PO have not been met.

42    Ms Picos, on the other hand, contends that she has made a complaint which has been terminated thereby satisfying the jurisdictional preconditions.

43    First, by her affidavit affirmed on 29 December 2015, Ms Picos deposes that:

On 13 July 2014 around 6:00 AM I lodged a written complaint online to the Australian Human Rights Commission pursuant to the Australian Human Rights Act 1986 section 46P …

44    Ms Picos then quotes what she described as the written complaint. It is true that the AHRC Act does not prescribe a process by which a complaint is lodged although it does require that the complaint be in writing. Nonetheless, Ms Picos’ evidence as to the contents of her communication with the AHRC, as opposed to her characterisation of that communication, does not in my view establish that she made a complaint. No mention is made in that communication of any intention to make a complaint or indeed to any action or response requested of the AHRC. The so-called complaint comprises eleven numbered paragraphs which make factual allegations only against police officers and as to Ms Picos’ actions and feelings allegedly in response. In short, irrespective of Ms Picos’ intentions, it was not apparent from the passage quoted from the alleged “complaint” that Ms Picos intended to lodge a complaint under s 46P of the AHRC Act.

45    Nor did the AHRC in fact treat her communication with it as a complaint. Ms Picos gave evidence that the AHRC terminated the complaint pursuant to s 46PH by a letter from the AHRC on 18 July 2014. In the letter, however, the AHRC did not purport to terminate a complaint but stated only that:

Dear Miss Picos,

I refer to your recent email to the Commission in which you raise concerns about the way you claim you were treated [sic] Australian Federal Police (AFP) officers on 11 July 2014 and to make reference to sexual harassment.

I have enclosed an information sheet for you that outlines the Australian Human Rights Commission’s jurisdiction to investigate and try to resolve complaints alleging sexual harassment under the Sex Discrimination Act 1984 (Cth) (the SDA).

While you referred to sexual harassment in your correspondence it is unclear how the sexual harassment provisions in the SDA could arguably be seen as applicable to this matter.

Accordingly, the Investigation and Conciliation Section of the Commission will be taking no further action about this matter at this time.

(emphasis added)

46    The tenor of the letter, as the respondent contends, is that the AHRC at this stage was discharging only its function under s 46P(4) of the AHRC Act, namely, to take reasonable steps to provide appropriate assistance to a person where it appears to the Commission that the person wishes to make a complaint and requires assistance to formulate it. Thus, the letter refers only to Ms Picos raising concerns, encloses the AHRC information sheet outlining its jurisdiction, and raises in a tentative way a query about whether her allegation could constitute sexual harassment under the Act. This does not purport to be a notice of termination and is not, in my view, properly construed as such.

47    It follows that the conditions in s 46PO for the institution of proceedings in the Federal Court alleging unlawful discrimination contrary to the SD Act have not been satisfied and this Court has no jurisdiction to entertain the proceedings.

5.    THE APPLICATIONS BY MS PICOS TO AMEND HER ORIGINATING APPLICATION

48    It will be recalled that in her proposed amended originating application, Ms Picos sought to add causes of action in trespass and assault against the AFP. Allegations of trespass and assault were also referred to in her statement of claim filed on 8 January 2015. In addition on 2 February 2015, Ms Picos sought to add claims for injunctive relief requiring the AFP to investigate allegations of fraud and increase the quantum of damages sought to $16 billion.

49    The AFP submitted that the proposed common law claims in assault and trespass will not attract the jurisdiction of the Court unless they fall within its accrued jurisdiction, that is, if they form part of a single justiciable controversy by reason, for example, of their reliance on a common substratum of facts: Re Wakim; ex parte McNally (1999) 198 CLR 511; [1999] HCA 27 at [135]-[140] (Gummow and Hayne JJ). As such, it was said that the capacity to pursue those other claims depends upon the existence of federal claims within jurisdiction to which those other claims may accrue or “piggyback”: Carlton & United Breweries Ltd v Castlemaine Tooheys Ltd (1986) 161 CLR 543 at 553 (Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ). It was therefore said to follow from the fact that the Court’s jurisdiction to entertain the federal claim under the AHRC Act has never properly be invoked because of the failure to satisfy the statutory preconditions to such a claim, that I lack jurisdiction to entertain the common law claims of assault and trespass: Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564 at [87] French J (Beaumont and Finkelstein JJ agreeing).

50    However, I accept Ms Picos’ submission that the common law claims against the AFP would fall within federal jurisdiction. Specifically they would constitute a matter in which the Commonwealth is a party within s 75(iii) of the Constitution, the AFP being an arm of the Commonwealth. Nonetheless, I do not consider that this is an appropriate case in which I should exercise my discretion to permit the amendment.

51    First, contrary to the assumption that appears to underlie Ms Picos’ submission, permitting the amendments would not cure the lack of jurisdiction to entertain the claim against the AFP for the alleged unlawful discrimination. It remains the case that those claims could not be pursued because the jurisdictional preconditions to their institution have not been met.

52    Secondly, it follows that Ms Picos’ submission based upon the power of the Court under s 22 of the Federal Court of Australia Act 1976 (Cth) to grant all remedies to which the parties may be entitled in the matter so as to resolve all matters in dispute and avoid a multiplicity of proceedings does not assist. The proceedings currently on foot simply do not raise a controversy susceptible to resolution by the court in the first instance and should not have been instituted. Equally, it follows that Ms Picos’ reliance upon r 34.163 of the FCR providing that a person who brings a claim for unlawful discrimination should plead any additional claim in the originating application is misconceived.

53    Thirdly, I do not consider in any event that the Court could grant the relief sought by Ms Picos on the proposed amendments for which leave is sought by the interlocutory application filed on 2 February 2015. Ms Picos contends that the Court has jurisdiction under s 39B of the Judiciary Act 1903 to grant an injunction, which she described as in effect a writ of mandamus, against officers of the Commonwealth. However, the relief sought – to compel officers of the Commonwealth to investigate a particular complaint – overlooks the independent nature of the discretion exercised by police officers in determining whether or not to investigate complaints. As a consequence, there is no duty to undertake an investigation which the court could compel a police officer to discharge: see Hinchliffe v Commissioner of Australian Federal Police (2001) 118 FCR 308; [2001] FCA 1747 at 320 [34]-[35] (Kenny J) and the authorities referred to therein. Nor is there any particularisation of damage said to justify a claim for $16 billion. In these circumstances I would not in any event have allowed the application to amend the originating application.

6.    INTERLOCUTORY APPLICATION FOR ADJOURNMENT OF JUDGMENT

54    Finally, at 2.40pm on 24 February 2015, Ms Picos filed an interlocutory application seeking orders that “[t]he hearing scheduled for 24 February 2015 at 04:45pm AEST be adjourned.” The so-called hearing is for the delivery of the judgment to which these reasons relate. No supporting affidavit was filed. However, Ms Picos filed a short submission at the same time which simply stated that “[t]he Court is refusing to process the Applicant’s Affidavit, evidence and submissions.” No further explanation was given such as, for example, the purpose for which the further material was sought to be filed or why the application was made so late in the day when judgment was already reserved on the application for summary dismissal and disqualification.

55    At 3.14pm, the Deputy District Registrar sent an email to Ms Picos explaining, relevantly, that:

Affidavit in NSD 785/2014

With reference to matter no. NSD 785 of 2014, her Honour will consider an application that you be granted leave to file the affidavit deposed by you on 23 February 2015 in court subject to the outcome of your application that her Honour disqualify herself from further hearing the matter, and, if her Honour should refuse the application, on the outcome of the respondent’s interlocutory application for summary dismissal.

56    In the circumstances, I have dismissed the application for disqualification and granted summary judgment dismissing the proceeding on the grounds that the Court lacks jurisdiction to entertain the proceeding. It follows that the question of whether leave should be granted to file a further affidavit in the proceeding is moot. The application filed on 24 February 2015 must therefore be dismissed.

7.    CONCLUSION

57    The applications by Ms Picos for disqualification and to amend her originating application must be dismissed with costs. The proceedings must be summarily dismissed under s 31A(2) of the Federal Court Act and FCR rule 26.01, with costs, on the ground that the Ms Picos has no reasonable prospect of successfully prosecuting the proceeding.

Associate:

Dated:    24 February 2015