FEDERAL COURT OF AUSTRALIA

Picos v Servcorp Limited [2015] FCA 344

THE COURT ORDERS THAT:

1.    The interlocutory application filed 26 February 2015 for leave to lead further evidence on the disqualification application by Ms Picos is dismissed.

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

3.    The proceedings as against the second to eighth respondents inclusive are dismissed, including the interlocutory applications filed by Ms Picos on 28 November 2014, 5 December 2014, 29 January 2015 and 2 February 2015.

4.    There is no order as to costs as between Ms Picos, the eighth respondent and the Attorney-General for the ACT (intervening).

5.    On or before 4.00 pm on Wednesday, 22 April 2015 the second to seventh respondents have leave to file and serve submissions as to costs, which submissions are not to exceed 3 pages.

6.    On or before 4.00 pm on Wednesday, 22 April 2015 the applicant has leave to file and serve submissions as to costs, which submissions are not to exceed 3 pages.

7.    On or before 4.00 pm on Friday 24 April 2015, the second to seventh respondents have leave to file any submissions in reply, which submissions are not to exceed 2 pages.

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

REASONS FOR JUDGMENT

1.    INTRODUCTION

1    By an application filed on 17 November 2014, Ms Picos seeks damages in the sum of $3 billion for sexual harassment and unlawful discrimination by the respondents contrary to ss 28G and 28H of the Sex Discrimination Act 1984 (Cth) (the SD Act). The claims arise from a lease entered into by Ms Picos of an office suite in Barton, Australian Capital Territory, (the Barton Premises) pursuant to an agreement allegedly involving the first, second and third respondents. The lease was executed on 21 May 2014 and terminated on 26 June 2014.

2    The originating application was accompanied by a copy of Ms Picos’ complaint to the Australian Human Rights Commission (AHRC) against Servcorp lodged on 25 July 2014, together with a copy of the notice of termination of complaint given by the AHRC dated 13 November 2014. The notice of termination states that Ms Picos’ complaint against Servcorp Limited was terminated under s 46PH(1)(i) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) on the ground that the President’s delegate was satisfied that there is no reasonable prospect of the matter being settled by conciliation.

3    Similar proceedings were instituted by Ms Picos against the first respondent, Servcorp Limited (Servcorp), in NSD 766/2014 before the notice of termination was given. Those proceedings were dismissed for lack of jurisdiction on 15 April 2015. In addition, Ms Picos sought to contest the termination of her lease with respect to the Barton Premises in the ACT Magistrates Court. She seeks orders in her originating application to join both of these proceedings to the current proceedings.

4    The second to seventh respondents seek summary dismissal of Ms Picos’ application as against them. The Attorney-General for the ACT also seeks summary dismissal of the application as against the eighth respondent, Magistrate Boss of the ACT Magistrates Court. The relief sought against Magistrate Boss relates to Personal Protection (Workplace) Orders (the Protection Orders) made against Ms Picos. At the hearing of these applications on 5 February 2015, I also granted leave to the Attorney-General for the ACT to intervene on behalf of Magistrate Boss under r 9.12 of the Federal Court Rules 2011 (Cth) (FCR), noting that (while Ms Picos was not present) Ms Picos had consented to the intervention.

5    The primary ground on which summary dismissal is sought by the respondents is that the Court lacks jurisdiction to entertain the proceedings because an essential precondition to the commencement of proceedings for a contravention of the SD Act has not been complied with. Specifically, no complaint has been made against the second to eighth respondents under the AHRC Act and, therefore, no complaint against them has been terminated so as to engage the Court’s jurisdiction to entertain the claims for interlocutory and final relief for a contravention of the SD Act. Nor, it is submitted, can the termination of the complaint against Servcorp provide a basis on which a claim can be made against any respondent other than Servcorp.

6    For the reasons set out below, those submissions must be accepted and the proceedings dismissed as against the second to eighth respondents on the ground that the Court lacks jurisdiction to entertain those claims.

7    Certain respondents also sought summary dismissal under s 31A of the Federal Court of Australia Act 1976 (Cth) (FCA Act) or FCR r 26.01 on the ground that the proceedings were otherwise misconceived and had no reasonable prospect of success. However, in the circumstances, it is unnecessary to consider any other ground for summary dismissal.

8    There are also a number of other applications made by Ms. Picos.

9    First, by an application filed on 9 February 2015 after I had reserved judgment on the applications for summary dismissal, Ms Picos sought orders that I be “immediately disqualified for bias.” I made orders on 9 February 2015 in chambers for the filing of written submissions by the applicant in support of that application by 4.00 pm on 12 February 2015, with any written submissions in response by the respondents and intervener to be filed and served by 4.00 pm on 17 February 2015. This application is addressed in three sets of submissions filed by the applicant being submissions dated 11 February 2015, 16 February 2015 and 17 February 2015.

10    Secondly, and related to this, on 26 February 2015, Ms Picos filed an interlocutory application seeking leave to file evidence in support of her application for disqualification. On 2 March 2015, I granted leave to Ms Picos to file submissions on the nature and relevance of the evidence in respect of which she sought leave, and to the respondents to file written submissions in reply. Further submissions were filed by Ms Picos on 5 March 2015, and by the first to seventh respondents on 10 March 2015. Ms Picos also filed a very short submission on 17 March 2015 making a wholly unsubstantiated allegation against counsel for the first to seventh respondents.

11    For the reasons given below, I refuse leave to file evidence in support of the application for disqualification. The application for disqualification also lacks any merit and must be dismissed.

12    Thirdly, on 5 December 2014, Ms Picos filed an interlocutory application seeking leave to amend the originating application so as to include claims for interim injunctions against the second to eighth respondents under s 46PP of the AHRC Act. This would seem to be an attempt by Ms Picos to remedy the jurisdictional difficulties with the claims made against the second to eighth respondents. However, for reasons I later explain, the proposed amendments cannot cure the lack of jurisdiction as against the second to eighth respondents to whom those amendments relate and, with the dismissal of the proceeding, this application must also fail.

13    Fourthly, by an application filed on 28 November 2014, Ms Picos sought leave to amend the originating application so as to allege malice against the eighth respondent. This application cannot cure the jurisdictional difficulties in her path and in any event would have faced very considerable difficulties. Such allegations are not to be made lightly.

14    Finally, Ms Picos sought various orders in interlocutory applications filed on 29 January 2015 and 2 February 2015. However, these applications also fall away with the findings as to the lack of jurisdiction to entertain the application as against the second to eighth respondents, and in any event would lie outside the power of the Court.

2.    THE APPLICATION FOR DISQUALIFICATION

2.1    Principles governing a disqualification application

15    I discussed the principles under Australian law by which it is determined whether a judge is disqualified by reason of the appearance of bias in Picos v Australian Federal Police [2015] FCA 118 (Picos v AFP) at [22]-[27]. Accordingly, the relevant principles can be shortly stated here as follows.

(a)    The question of whether a judge cannot sit by reason of an apprehension of bias turns on “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] HCA 48; (2011) 244 CLR 427 (Wilson) at [31] (Gummow A-CJ, Hayne, Crennan and Bell JJ). Thus, it is the perception of the hypothetical observer that provides the yardstick for determining whether there is an appearance of bias: (British American Tobacco v Laurie [2011] HCA 2; (2011) 242 CLR 283 (BAT v Laurie) at [139] (Heydon, Kiefel and Bell JJ). However, the hypothetical “fair-minded lay observer” is not taken to be uninformed or uninstructed about the law or ordinary judicial practice: Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at 493 [13] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).

(b)    In applying this test, it is necessary, first, to identify what it is said might lead a judge to decide a case other than on its legal and factual merits. Secondly, 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: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [8] (Gleeson CJ, McHugh, Gummow and Hayne JJ).

(c)    Allegations of apprehended bias must be firmly established: Re Minister for Immigration and Multicultural Affairs; ex parte Epeabaka [2001] HCA 23; (2001) 206 CLR 128 at 135-136 [20] (approving R v Commonwealth Conciliation and Arbitration Commission; ex parte Angliss Group (1969) 122 CLR 546 at 553-554). As Mason J emphasised in Re J.R.L.; ex parte C.J.L. [1986] HCA 29; (1986) 161 CLR 342 at 352, it is the duty of the judge to sit where proper grounds for disqualification do not exist: see also Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225 (Bienstein) at [35]-[36] (McHugh, Kirby and Callinan JJ).

16    By contrast, actual bias requires an assessment of the state of mind of the decision-maker in question: Wilson at [33]. As North J explained in Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 134:

Actual bias exists where the decision-maker has prejudged the case against the applicant, or acted with such partisanship or hostility as to show that the decision-maker had a mind made up against the applicant and was not open to persuasion in favour of the applicant.

(See also e.g. Li v Minister for Immigration and Multicultural Affairs [2000] FCA 19; (2000) 96 FCR 125 at 133 [42] (Drummond J)).

17    The seriousness of such allegations and consequential impact on matters of proof were emphasised by Lasry J in R v Rich [2009] VSC 32 at [7] in stating that:

A party asserting actual bias on the part of a decision-maker carries a heavy onus; the allegation must be “distinctly made and clearly proved”. It has been said, and I agree, that a finding of bias is a “grave matter”, and cannot be made lightly. Apart from corruption, it is hard to think of a more serious allegation that can be made against a judge.

(See also e.g. Minister for Immigration v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at 531 [69] (Gleeson CJ and Gummow J))

2.2    The allegations based upon the conduct of the directions hearings in Ms Picos’ matters on 5 February 2015

18    An application was also made for me to recuse myself in the proceedings instituted by Ms Picos against the Australian Federal Police (AFP) which I dismissed with costs in Picos v AFP. The grounds on which Ms. Picos seeks my recusal in these proceedings overlap substantially, but not completely, with the grounds on which my recusal was sought in the AFP proceedings, and are equally unmeritorious. Overlapping grounds include what had occurred in the proceedings Ms Picos brought against the Hyatt Hotel Canberra (NSD 23 of 2015) when it was called on for directions before me on 5 February 2015 before this matter was reached in the list.

2.2.1    Background to the directions hearing on 5 February 2015

19    This matter was set down for directions before Bennett J on 12 December 2014 together with four other matters instituted by Ms Picos alleging sexual harassment against other respondents, 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 Australian Federal Police (NSD 785 of 2014). At that directions hearing, Ms Picos explained that NSD 766 (the first proceeding against Servcorp) was intended to be a claim for interim relief, while this proceeding was intended to be a claim for final relief. Counsel for the second to seventh respondents and the Attorney-General for the ACT indicated their intention to file motions for the dismissal of these proceedings, while the first respondent indicated that it intended to file an application for a stay of the proceeding pending determination of the proceeding in the ACT Magistrates Court. On 23 January 2015, Servcorp filed an interlocutory application seeking summary dismissal of these proceedings as between it and Ms Picos or, in the alternative, a stay pending determination of the proceedings in the ACT Magistrates Court. That application is listed to be heard by me separately and is not considered in these reasons.

20    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 before me as the docket judge. 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)

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

1.    The applicant is to notify the solicitor for the Attorney-General for the Australian Capital Territory of her position on the application for leave to intervene on or before 19 December 2014.

2.    Any and all interlocutory applications for amendment to the originating application, for leave to intervene and for dismissal of the proceedings be listed for hearing before Perry J at 10.15 am on 5 February 2015.

22    I have referred already to the various applications heard pursuant to order 2 above: see at [4]-[7] and [12]-[13].

2.2.2    The directions hearing on 5 February 2015

23    In line with the directions made by Bennett J, the five matters to which I have referred were listed before me on 5 February 2015. The proceedings in Picos v Seven West Media & Ors and Picos v Hyatt Hotel Canberra (NSD 23 of 2015) (the latter being in the docket of Yates J) were listed first for mention and directions respectively.

24    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. She declined to do so. 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 [counsel for the respondent]: 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.

25    I note that 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 sought interlocutory 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 in Picos v Hyatt Hotel Canberra [2015] FCA 101.

26    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.

27    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. However, there was no appearance by Ms Picos. Counsel for the respondent did not consider there was any reason why the hearing should not proceed as listed and I also considered 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. 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). Thus the Court has power to dismiss the proceedings where an applicant is in default, including where, as here, the applicant fails to attend a hearing in the proceeding, on application by the respondent under FCR r 5.23(1): see also the definition of when a party is in default under FCR r 5.22(c). 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.

2.2.3    Ms Picos’ submissions in support of the application for disqualification

28    In her legal submissions filed on 11 February 2015, Ms Picos alleges prejudgment (citing BAT v Laurie), and submits that:

(a)    Perry J commented on the applicant “being self-acting” – an allegation which seems to be tied to an allegation of bias against the applicant in favour of those respondents who are solicitors;

(b)    the fraud alleged against the solicitors in the Hyatt Hotel matter “is obvious and only requires one to check the ASIC records duly filed for a matching, or rather absent, ABN”;

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

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

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

(f)    the application for summary dismissal “is so hopeless” that the failure to dismiss the application on 5 February 2015 demonstrates bias.

29    In addition, in her submissions filed on 16 February 2015, Ms Picos relies upon the fact that I acted on behalf of the Attorney-General for the ACT intervening pursuant to s 78A of the Judiciary Act 1903 (Cth) in Momcilovic v The Queen [2011] HCA 34; (2011) 245 CLR 1. There were no common factual or legal issues in that case with those in issue here. They are entirely unrelated proceedings and Ms Picos did not contend otherwise.

30    I deal separately with the submissions made in support of the application to file evidence on the disqualification application where a number of further allegations are made.

2.2.4    The allegation of bias/perceived bias arising from the directions hearing on 5 February 2015

31    Ms Picos stated in a submission dated 17 February 2015 in response to submissions by the intervener that actual bias is alleged. Nonetheless, in some of her submissions she speaks of perceived bias and relies upon the decision in BAT v Laurie which is a case concerning apprehended (and not actual) bias. As such, it is necessary to deal with both aspects of the allegations.

32    As I mentioned, Ms Picos also sought my recusal in the AFP proceedings on the basis of the conduct of the directions hearing in the Hyatt Hotel proceedings on 5 February 2015. For the reasons which I have given in Picos v AFP at [28]-[31], the application made here must also be dismissed. As the Attorney-General for the ACT submitted:

[T]he majority of the particulars of the allegations of prejudgment in the First Submissions [of the applicant filed 11 February 2015] arose in the context of matter NSD 23/2015. NSD 23/2015 is docketed to Justice Yates, not Justice Perry. In these circumstances, it would have been inappropriate for Justice Perry to make any findings and it would have been inappropriate for the Applicant to be allowed to make detailed submissions. Such submissions and findings are for the hearing of the matter before Justice Yates. There was no preliminary view expressed or finding made in NSD 23/2015 and, even if they were, that would not be sufficient to meet the objective test. Accordingly, Justice Perry’s handling of the matter NSD 23/2015 cannot be a fact or circumstance that might lead a judge to decide the case other than on its legal and factual merits in matter NSD 1179/2014.

33    By contrast, in BAT v Laurie, the statements in question which were held to give rise to an apprehension of prejudgment were made by the trial judge and were expressed in terms indicating “extreme scepticism about BATAS’s denials [of fraud] and strong doubt about the possibility of different materials explaining the difficulties experienced by the judge”: at 333 [145] (Heydon, Kiefel and Bell JJ (French CJ and Gummow J dissenting)).

34    Nor are there any reasonable grounds for the fear asserted by Ms Picos that she “may not be permitted to speak”. It will be recalled that I counselled the applicant to remain and be heard in relation to the applications before me on 5 February 2015, including in this proceeding and, after the applicant walked out, I adjourned the Court for a short period in order to give her the opportunity to reconsider her position. It was the applicant who chose not to avail herself of that opportunity.

2.2.5    Other grounds on which disqualification is sought

35    The other matters raised in the written submissions filed by Ms Picos on the application for disqualification appear to me to be self-evidently without merit and can be dealt with shortly.

36    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. Nor could the bare fact that a number of the respondents are solicitors have any relevance to the capacity of the Court to deal with the application impartially or be perceived to have any such relevance. Consistently with this, in Bienstein at [33], McHugh, Kirby and Callinan JJ held that:

…a reasonable apprehension of bias may exist where the presiding judge has a substantial personal relationship with a party to, or a person involved in, proceedings or a substantial personal relationship with a member of the family of that party or person. But absent such relationships or others like them, it is absurd to suggest that a reasonable apprehension of bias can exist merely because a person involved in the proceedings comes from a city where the judge once practised professionally or because the judge may have had professional dealings with that person in the course of professional practice. (emphasis added)

37    Equally, it is untenable to suggest that, merely because certain respondents are solicitors, a reasonable apprehension of bias, or actual bias, exists.

38    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, this contention does not even allege any conduct by me, and cannot manifest or establish any bias on my part, nor cause for any concern as to apprehended bias. I also note that an application in the Hyatt Hotel proceedings by Ms Picos for Yates J to disqualify himself on this ground was dismissed by his Honour in Picos v Hyatt Hotel Canberra (No 2) [2015] FCA 262 at [23]-[25].

39    Nor, as I also held in Picos v AFP at [32](c), is there any substance in the submission that bias should be inferred from the failure to dismiss the applications for summary dismissal on 5 February 2015. The respondents are entitled to bring such an application. 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 and the respondents. As the Attorney-General for the ACT submitted, “[t]he merits and the disposition of a case cannot be a fact or circumstance that might lead a judge to decide the case other than on its legal and factual merits.”

40    Finally, the mere fact that I appeared as counsel for the Attorney-General for the ACT in separate and unrelated proceedings has no logical connection with my capacity as a judge to determine these proceedings fairly and impartially. As the Attorney-General for the ACT submits, “[a] fair-minded lay observer would be aware that counsel practising in constitutional and administrative law would act for government from time to time and that a previous association as counsel would not lead a judge to decide the case other than on its legal and factual merits, particularly where the law and facts bear no relationship to the previous matter in which the judge acted as counsel.” Thus, it has long been accepted that a prior relationship between a former legal adviser and a client does not by itself disqualify the former adviser from sitting in proceedings where the former client is a party: Re Polites; ex parte Hoyts Corporation Pty Limited [1991] HCA 25; (1991) 173 CLR 78 at 87–88. It is only when advice given by the legal adviser is an issue in the proceedings that a reasonable apprehension of bias can arise: Bienstein at [33].

2.3    Ms Picos’ application to file further evidence in support of the application for disqualification

41    The application for disqualification does not become any stronger when regard is had to the nature of the evidence which the applicant seeks to file in support of that application. By the submissions filed on 5 March 2015 in support of her application to file further evidence, Ms Picos makes a number of scandalous allegations against Justices Yates and Gleeson, the President of the AHRC and the Mental Health Review Tribunal. None of those allegations raise any issue of actual or apprehended bias on my part in determining these proceedings.

42    Ms Picos also submits that I suggested in Picos v Seven West Media & Ors (NSD 741 of 2014) that “the Applicant withdraw her proceeding [NSD 741/2014] while the Applicant was subject to detention, torture and drugging. Her Honour will be called to respond to a serious claim for torture in an international forum of repute.” The orders in question were made on 8 August 2014 following a mention the previous day at which the respondents appeared. However, Ms Picos had sent a facsimile to the Court dated 5 August 2014 advising that she was in hospital. In the circumstances, orders were made on 8 August 2014 standing the matter over to 13 November 2014 for directions, giving the parties liberty to apply on three days’ notice, providing that any further adjournment application should be supported by affidavit evidence, and affording Ms Picos an opportunity to file a notice of discontinuance if she intended to discontinue her application, together with any written submissions that she may wish to put against the default position under FCR r 26.12(7) as to costs. These orders were merely procedural and facilitative, and there is no proper basis for permitting the leading of further evidence in relation to the point.

43    Nor in general is it appropriate, where the facts alleged on an application for disqualification are contested, to allow proof of such facts before the trial judge. At the very least, this calls for the exercise of caution. For this reason I considered it appropriate to require a grant of leave for the filing of evidence and gave Ms Picos the opportunity to make submissions as to the nature of evidence in respect of which leave was sought. Difficulties that can arise where such a course is adopted include that:

(a)    the process itself may give rise to an apprehension of bias such that the judge must in any event disqualify herself or himself (e.g. Bainton v Rajski (1992) 29 NSWLR 539 at 541-542);

(b)    statements made may be regarded as constituting contempt of court (e.g. Vidyasagara v R [1963] AC 589 (PC)); and

(c)    the judge may be asked to be a judge in his or her own cause and determine contested questions of fact of which he or she may have actual knowledge (e.g. Barton v Walker [1979] 2 NSWLR 740 at 749 (disapproved in Wilson on other grounds)).

44    Conversely, as Mahoney JA observed in Bainton at 541, the bare making of allegations of fact by a party cannot suffice to require that the judge withdraw. As his Honour explained, if it were otherwise:

…a party could secure the judge of his choice by the allegation against the others of disqualifying facts. Facts may be alleged dishonestly. They may be alleged because of paranoia and the distortion of facts which that produces. They may be alleged because of a mental or intellectual incapacity to understand what is done, in court or out of it. And they may result from honest mistake or lack of information.

45    In all of the circumstances, the application to file further evidence must be dismissed.

3.    THE APPLICATION FOR SUMMARY DISMISSAL

3.1    The AHRC Act is an exclusive regime

46    As I explained in Picos v AFP and Picos v Servcorp (No 2) [2015] FCA 343 (Servcorp (No 2)), Part IIB of the AHRC Act establishes a regime for redress for “unlawful discrimination” under various Commonwealth anti-discrimination laws including, relevantly, Part II of the SD Act in which ss 28G and 28H 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. Section 28H makes it unlawful for a person to sexually harass another person in the course of providing accommodation to that other person.

47    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 (subs 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 under ss 46PE or 46PH 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 (subs 46PO(1) and (2));

f)    limiting the right to pursue a claim of 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, or substantially the same, acts, omissions or practices (subs 46PO(3)); and

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 (subs 46PO(4)).

48    It is well established that this regime is an exclusive one for remedying contraventions of the Unlawful Discrimination Laws, including the SD Act, as I held in Picos v AFP at [36]-[38] and Servcorp (No 2) at [18]. As a result, 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: Bropho v Western Australia [2004] FCA 1209 at [29] and [51]-[53] (RD Nicholson J); French v Gray [2013] FCA 263; (2013) 217 FCR 404 at [149]-[151] (Besanko J); Dye v Commonwealth Securities Limited (No 2) [2010] FCAFC 118 at [71] (the Court). This is so whether the relief sought is final relief under s 46PO after a complaint has been terminated, or an interim injunction under s 46PP to maintain the status quo or affected person’s rights after a complaint has been lodged but not yet determined.

49    Nor can proceedings be instituted alleging unlawful discrimination otherwise than against the respondent or respondents to a terminated complaint (s 46PO(1)). It follows that the existence of the terminated complaint against Servcorp cannot provide a basis on which to bring proceedings alleging unlawful discrimination by the other respondents.

3.2    There is no jurisdiction to entertain the proceedings against the second to eighth respondents

50    While Ms Picos did not appear, the respondents tendered paragraphs 6 to 12 inclusive of Ms Picos’s affidavit affirmed on 8 January 2015 as the evidence on which Ms Picos was likely to have relied, if she had appeared on the hearing of the applications for summary dismissal. Subject to [46](a) below, the paragraphs were tendered on the basis that no concession was made as to the truth of the matters to which Ms Picos deposed. The correspondence comprised in annexures 1-4 to her affidavit affirmed on 28 January 2015 were also tendered in evidence.

51    In that evidence Ms Picos deposes that:

a)    Servcorp is a respondent to the original complaint terminated by the AHRC on 13 November 2014;

b)    The second respondent, Melvernic Pty Ltd, is a party to the original ocmplaint as it trades as “Servcorp Barton” and is the lessor of the Barton Premises;

c)    The third respondent, Enideb Pty Limited, refers to itself as “Servcorp Canberra” which is a respondent to the original complaint and is linked contractually to Ms Picos;

d)    While not parties to the original complaint, the AHRC has been notified of further complaints against the fourth to eighth respondents pursuant to s 105 of the SD Act and has terminated the complaints.

52    While the allegation in paragraph (a) above is not in dispute between the parties, the second to seventh respondents and the Attorney-General deny that any complaint against the second to eighth respondents has been made to the AHRC and therefore that any complaint has been terminated.

53    The only complaint to the AHRC in evidence is the complaint terminated on 13 November 2014. That complaint was made against the first respondent only. The fact that the second and third respondent may trade as “Servcorp Barton” and “Servcorp Canberra” respectively, does not change the fact that they are distinct legal entities against whom no complaint has been made.

54    The correspondence annexed to Ms Picos’s affidavit of 28 January 2015 between Ms Picos and the AHRC lends little assistance to Ms Picos case. The email from Ms Picos to the AHRC on 4 December 2014 after referring to the original complaint against Servcorp simply states that “[s]ince making that complaint other people have assisted Servcorp Ltd in its unlawful discrimination against me, as stated in the attached.” No evidence was given of the attachment to that email. On 9 December 2014 Ms Picos wrote to the AHRC by email seeking acknowledgment of receipt of her earlier email. On 4 January 2015 Ms Picos emailed the AHRC again referring to her correspondence of 4 December 2014 and asking “[w]hat is the status of the Servcorp Ltd complaint as against [the second to eighth respondents].” Finally, on 7 January 2015 the AHRC emailed Ms Picos stating (relevantly) that:

The Commission terminated your complaint against Servcorp Limited on 13 November 2014.

The Commission understands that prior to that date the Federal Court had considered the issue of respondents in the matter of Picos v Servcorp Limited [2014] FCA 922.

It appears from documents that you have provided to the Commission that you have lodged an application with the Federal Court in relation to the terminated Servcorp Limited complaint. In your application to the Federal Court you provide additional particulars and name additional respondents.

From the information you have provided to the Commission it appears that this matter is currently before the Federal Court.

55    The correspondence from the AHRC is therefore consistent with the respondent’s evidence that only one complaint has been lodged with the Commission and terminated by it, namely, the original complaint against Servcorp. Specifically, the second to seventh respondents and the intervener relied on evidence that inquiries were made of the AHRC which responded that no complaint had been accepted by it from Ms Picos against any of the second to eighth respondents respectively.

56    The evidence, therefore, that no complaint has been lodged with the Commission as against any of the second to eighth respondents and, as a result, that no complaint has been terminated against those respondents, is compelling. The only contradictory evidence is Ms Picos’ assertions to the contrary in her affidavit. However, in light of the other evidence to which I have referred and the lack of any documentation in support of Ms Picos’ evidence such as a copy of the alleged complaints or amended complaint, I do not accept her evidence. It follows that the proceedings as against the second to eighth respondents do not comply with the essential preconditions to their commencement under s 46PO of the AHRC Act and must be dismissed for want of jurisdiction. Nor does the Court have any jurisdiction to grant an interim injunction under s 46PP as an application can be made under that provision only where a complaint has been made to the Commission.

57    The applicant contends that the position is different where, as here, she makes a claim against the second to eighth respondents under s 105 of the SD Act. Section 105, and its related provision s 106(1), provide:

105 Liability of persons involved in unlawful acts

A person who causes, instructs, induces, aids or permits another person to do an act that is unlawful under Division 1 or 2 of Part II shall, for the purposes of this Act, be taken also to have done the act.

106 Vicarious liability etc.

(1)    Subject to subsection (2), where an employee or agent of a person does, in connection with the employment of the employee or with the duties of the agent as an agent:

(a)    an act that would, if it were done by the person, be unlawful under Division 1 or 2 of Part II (whether or not the act done by the employee or agent is unlawful under Division 1 or 2 of Part II); or

(b)    an act that is unlawful under Division 3 of Part II;

this Act applies in relation to that person as if that person had also done the act.

58    The submission is, however, misconceived. A complaint against those respondents which relies upon either or both of these provisions is still a claim for redress for unlawful discrimination under Part II of the SD Act and is, therefore, governed by the exclusive regime created by the AHRC Act. Section 105 operates only to “extend” the scope relevantly of ss 28G and 28H of the SD Act by making it clear that persons who have aided in a contravention of ss 28G and 28H will be taken to have done the act which constitutes a contravention, while s 106 ensures that ss 28G and 28H will apply as if the employer had also done the Act. The Court cannot, therefore, consider Ms Picos’ claims under “the jurisdiction of contract and equity”, as she submits based upon her reliance on s 105 of the AHRC Act.

59    The applicant further contends that the application is competent against Magistrate Boss because of the submitting notice filed by her. That submission misunderstands the nature and intention of the submitting notice. The submitting notice filed by Magistrate Boss provides that her Honour will submit to “any order that the Court may make”. As the Attorney-General submitted, it would be inappropriate for the eighth respondent, being a judicial officer whose orders were impugned, to actively defend these proceedings. That being so, the Attorney-General’s role as intervener is to act as a contradictor. This approach preserves the impartiality that a judicial officer is expected to maintain, particularly in subsequent proceedings that may take place if relief is granted: R v Australian Broadcasting Tribunal; ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13 at 35-36 (Gibbs, Stephen, Mason, Aickin and Wilson JJ).

60    Finally, while the issue was not specifically raised and the application for summary dismissal against the eighth respondent must be dismissed in any event, these reasons would be incomplete if reference were not also made to a further and fundamental reason why the proceedings as against the eighth respondent would seem untenable. That further reason is found in s 17I of the Magistrates Court Act 1930 (ACT) (the Magistrates Court Act) which provides that:

In an action against a magistrate for any act done by the magistrate in the execution of the magistrate’s duty as a magistrate in relation to any matter within the magistrate’s jurisdiction as a magistrate, it must be expressly alleged in the statement of claim that the act was done maliciously and without reasonable and probable cause, and if the allegations are denied, and at the trial of the action the plaintiff fails to prove them, judgment must be given for the defendant.

61    Section  17I and like provisions reflect the judicial immunity from suit that has existed at common law for centuries: Fingleton v The Queen [2005] HCA 34; (2005) 227 CLR 166 (Fingleton) at 186-187 [38]-[40] (Gleeson CJ) (with whose reasons McHugh J, Gummow and Heydon JJ, and Hayne J relevantly agreed). Its importance lies in the policy which underlies the immunity, being the protection of the independence of the judiciary so as to enable fearless adjudication. As Gleeson CJ emphasised in Fingleton at 186 [38]-[39], this immunity is conferred:

… not as a prerequisite of judicial office for the private advantage of judges, but for the protection of judicial independence in the public interest. It is the right of citizens that there be available for the resolution of civil disputes between citizen and citizen, or between citizen and government, and for the administration of criminal justice, an independent judiciary whose members can be assumed with confidence to exercise authority without fear or favour.

… the public interest in maintaining the independence of the judiciary requires security, not only against the possibility of interference and influence by governments, but also against retaliation by persons or interests disappointed or displeased by judicial decisions.

See also e.g. Sutcliffe v Thackrah & Ors [1974] 2 WLR 295; [1974] AC 727 at 757 (Lord Salmon); Forrester v White (1988) 484 US 219 at 226-228 (O’Connor J (delivering the opinion of the Court)); Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority SA [2005] ZASCA 73; [2006] 1 All SA 6 (South Africa; Supreme Court of Appeal) at [17]-[19].

62    This does not mean that judges are unaccountable, but rather that they are made accountable through other means including the appellate processes. Further, the judicial immunity afforded by s 17I of the Magistrates Court Act does not exclude liability for acts done in the execution of duty in relation to a matter within the magistrate’s jurisdiction where it is expressly alleged that the magistrate acted maliciously and without reasonable and probable cause, and those allegations are proved. However, as I have earlier stated in Picos v AFP at [29]:

…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].

63    These observations apply with equal, if not greater, force where allegations of malice are made against a judicial officer in the discharge of his or her duties of office. To hold otherwise would undermine the reasons which exist for the judicial immunity in the public interest and thereby, undermine the rule of law. Such considerations are indicative of the very considerable difficulties which Ms Picos’ application to amend the application to plead malice against the eighth respondent would have encountered. The only particular alleged is a failure to provide reasons for the protection orders. However, the jurisdictional hurdles in the path of Ms Picos’ application against the second to eighth respondents are decisive and render the application to amend the application against the eighth respondent moot in any event. It is for this reason in the circumstances that the application to amend is dismissed.

4.    THE APPLICATION BY MS PICOS TO AMEND HER ORIGINATING APPLICATION

64    Mention has already been made of Ms Picos’ application for leave to amend the originating application so as to include claims for interim injunctions against the second and eighth respondents under s 46PP of the AHRC Act. However, an interim injunction may be granted under s 46PP(1) only “after a complaint is lodged with the Commission”. It follows, therefore, inevitably from my finding that no complaint has been lodged with the Commission by Ms Picos against any of the second to eighth respondents that any application under s 46PP(1) could not presently succeed and the proposed amendment could not “cure” the jurisdictional difficulties which presently confront Ms Picos in her attempt to make a claim against those respondents.

5.    OTHER INTERLOCUTORY APPLICATIONS FILED BY MS PICOS

65    On 29 January 2015, Ms Picos filed a further application seeking “interlocutory orders” including judgment against the eighth respondent for $3 billion, that the matters surrounding Interim Personal Protection (Workplace) Orders made by the ACT Magistrates Court (the Interim Protection Orders) be referred to the High Court “to be challenged against the Constitution and law”, and that the balance of the proceedings be set down for hearing before a Full Court. Plainly, if the Court does not have jurisdiction to entertain the proceedings, it does not have jurisdiction to make the interlocutory orders of the kind sought here. The orders would in any event confront significant difficulties including that: an order for judgment in the sum of $3 billion would be in the nature of a final order and is not interlocutory in nature as Gleeson J held in Picos v Servcorp Limited [2014] FCA 922 at [42]; the power to remove proceedings to the High Court is vested in that Court under s 40 of the Judiciary Act 1903 (Cth); and no grounds have been put in support of transferring the matter to a Full Court (see s 20(2), FCA Act).

66    Finally, on 2 February 2015, Ms Picos filed at an interlocutory application seeking what was described as urgent declaration that the Interim Protection Orders made by the ACT Magistrates Court in favour of Enideb, Snedden Hall & Gallop and HWL Ebsworth constituted victimisation under s 94 of the SD Act, and that certain of the respondents, staff of the ACT Magistrates Court, the Attorney-General for the ACT, and other persons be referred to the Australian Federal Police for victimisation. Again, without jurisdiction over the proceedings, the orders cannot be made. In any event, the Court has no power to make such orders.

6.    CONCLUSION

67    For these reasons, the application for leave to lead further evidence on the disqualification application by Ms Picos is dismissed, as is Ms Picos’ application for disqualification. The proceedings are dismissed against the second to eighth respondents inclusive for want of jurisdiction, including the interlocutory applications filed by Ms Picos on 28 November 2014, 5 December 2014, 29 January 2015 and 2 February 2015.

68    While the discretion to award costs under s 43 of the FCA Act is wide, the ordinary rule is that costs follow the event: Hughes v Western Australian Cricket Assn Inc (1986) ATPR 40-478 at 48,136 (Toohey J). It is my preliminary view that the ordinary rule should apply here with the result that Ms Picos would be liable for the costs of the second to seventh respondents. However, Ms Picos has specifically asked to be heard on the question of costs and I consider that it is appropriate to afford her that opportunity, subject to the following caveat. While the eighth respondent’s submitting appearance indicated a desire to be heard on the issue of costs, given the nature of the appearance, plainly no award as to costs in favour of the eighth would be appropriate, nor any order against the eighth respondent. I interpret this to be a submitting appearance save as to costs. In the circumstances, I have made an order that there be no order as to costs as with respect to the eighth respondent or the Attorney-General for the ACT intervening who has indicated that he does not seek costs.

Associate:

Dated:    15 April 2015