FEDERAL COURT OF AUSTRALIA

Mathews v State of Queensland [2015] FCA 1488

THE COURT ORDERS THAT:

1.    Mr Mathews is prohibited from instituting any proceedings in the Federal Court of Australia against the State of Queensland, its agencies, statutory bodies and their employees.

2.    Mr Mathews is prohibited from instituting any proceedings in the Federal Circuit Court of Australia against the State of Queensland, its agencies, statutory bodies and their employees.

3.    Judgment for the State of Queensland against Mr Mathews in relation to the whole of this proceeding.

4.    Mr Mathews pay the State of Queensland its costs of and incidental to these applications and to this proceeding.

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

REASONS FOR JUDGMENT

INTRODUCTION

1    The State of Queensland, the respondent in this proceeding, has filed two interlocutory applications. The first seeks an order under s 31A of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act) and r 26.01 of the Federal Court Rules 2011 (Cth) (the Rules) that the whole of the proceeding be dismissed because the applicant, Mr Mathews, has no reasonable prospect of successfully prosecuting it (the summary judgment application).

2    The second application is made under the vexatious proceedings provisions in Part VAAA of the Federal Court Act for an order that Mr Mathews be declared a person who has frequently instituted and conducted vexatious proceedings in Australia, and for a variety of consequential orders (the vexatious proceedings application).

3    As a consequence of Mr Mathews’ failure to appear at the hearing of these applications, the State added a third application. It applied to have this proceeding dismissed under the default provisions in rr 5.22 and 5.23 of the Rules (the default judgment application).

4    Before considering these applications, it is convenient to set out the procedural history to this proceeding in some detail as that is pertinent to the determination of all three applications.

PROCEDURAL HISTORY

The Australian Human Rights Commission complaint

5    In November 2013, Mr Mathews filed an originating application in this Court under s 46PO of the Australian Human Rights Commission Act 1986 (Cth) (the AHRC Act). This followed the termination under s 46PH of the AHRC Act, by the President of the Australian Human Rights Commission, of a complaint Mr Mathews had made to the Commission. In that complaint, Mr Mathews alleged that the State had unlawfully discriminated against him when officers of Translink (a State agency) removed him from a bus operated by Clarks Logan City Bus Service. He complained he was asked to leave the bus because he was accompanied by his assistance dogs and he claimed that this constituted unlawful discrimination on the ground of his disability. He claimed damages of $100,000 for pain and suffering, $100,000 for “humiliation and shock of being assaulted by three [T]ranslink employees” and punitive damages of $10,000,000.

6    That proceeding, QUD 839 of 2013, was the first of a number of proceedings commenced by Mr Mathews that related to the same, or similar, factual allegations. The other proceedings were:

    QUD 178 of 2014 – Federal Court of Australia;

    BRG 363 of 2014 – Federal Circuit Court of Australia; and

    QUD 532 of 2014 – Federal Court of Australia.

7    In the following paragraphs, I will outline the history of each of these proceedings and the key decisions made in connection with them, in the order set out above.

Proceeding QUD 839 of 2013 – Federal Court of Australia

8    Accompanying Mr Mathews’ originating application in this first proceeding was a number of documents which purported to provide information about the nature of Mr Mathews’ disability. One such document was a report by a psychologist, Dr Brian Hazell, dated 30 July 1999, which summarised other material and appeared to offer an explanation for Mr Mathews’ litigious behaviour.

9    In January 2014, Mr Mathews filed an affidavit seeking discovery “of all documents with Translink that relate to me, from the time of the formation of Translink. Translink have been discriminating against me all this time.”

10    At a directions hearing in February 2014, conducted by Rangiah J, Mr Mathews appeared by telephone. He did so under an arrangement whereby he telephoned the Court at a pre-determined time. Presumably this appearance was permitted under s 47B(1) of the Federal Court Act.

11    In April 2014, Mr Mathews filed an application together with two affidavits seeking further discovery from Translink. He then filed nine separate applications seeking non-party discovery from a number of persons and entities. Those applications had no connection with the subject matter of Mr Mathews’ original complaint to the Commission and some appeared to relate to various grievances that were set out in Dr Hazell’s report of 30 July 1999, mentioned above.

Mathews v State of Queensland [2014] FCA 424

12    All these applications were set down for hearing before Rangiah J on 24 April 2014.

13    At that hearing, Mr Mathews again appeared by telephone. After the hearing, Rangiah J dismissed all of the applications seeking non-party discovery and ordered that proceeding QUD 839 of 2013 be transferred to the Federal Circuit Court: see Mathews v State of Queensland [2014] FCA 424. At [10] of his reasons, his Honour said of Mr Mathews’ proceeding:

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

14    His Honour also made a number of observations about Mr Mathews’ applications for non-party discovery. He said:

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

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

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

Proceeding QUD 178 of 2014 – Federal Court of Australia

15    Mr Mathews’ reaction to the orders made by Rangiah J was to apply for leave to appeal them to the Full Court of this Court (proceeding QUD 178 of 2014). His draft grounds of appeal included the following:

1.    …

2.    The refusal to give the discovery and extended non-standard discovery is aimed at artificially restraining my claim of this assault and false imprisonment and permanent injury being a continuation of the catholic inspired program or regime aimed at my destruction by the State of Qld, and Commonwealth of Australia since both have been under the corrupt executive control of catholics, resulting from systemic political branch stacking by catholics.

3.    Rangiah J. is a catholic, was biased as a catholic, and close associate of catholic ex-Justice Spender who has corruptly, repeatedly acted against my interests repeatedly since circa March, 1974, when as a barrister, Spender, instructed by Terence Joseph Mellifont defrauded me before the Railway Appeals Tribunal, to please the catholics being Frank Heffernan and CJ (Joe) Kelso who had set me up on trumped up charges to sack me.

4.    Rangiah J. and ex Justice Spender both gained their promotion to the Federal Court as a result of systemic catholic political branch stacking.

5.    It is the same corruption catholic juggernaut that has long targeted myself, that was expressed by Rangiah J and Spender J, which is also the cause of this Translink assault upon me, and which will be disclosed by the documents sought by me by way of discovery.

6.    Any judge that is catholic and has been appointed by an executive dominated by catholics in those positions as a result of systemic catholic political branch stacking, has not been promoted on merit and will exhibit the same apprehended bias.

7.    Systemic catholic political branch stacking is proven by statistical analysis.

8.    Rangiah J. knew he was biased so transferred the proceeding to the Federal Circuit Court to save his having to disqualify himself.

Mathews v State of Queensland [2014] FCA 574

16    After Mr Mathews failed to appear at the hearing of his application for leave to appeal, Dowsett J dismissed it: see Mathews v State of Queensland [2014] FCA 574. In so doing, his Honour said (at [1]):

… I do not accept that the applicant is entitled to dictate the terms upon which he should be allowed to appear by telephone. The only condition put upon such appearance was that he provide a telephone number. He has apparently refused to do that. He is not here. His application for leave to appeal should be dismissed. The further application for leave to be heard by telephone, without providing a telephone number will also be struck out.

Proceeding BRG 363 of 2014 – Federal Circuit Court

17    Proceeding QUD 839 of 2013 then proceeded as proceeding BRG 363 of 2014 in the Federal Circuit Court before Judge Jarrett. Mr Mathews applied for leave to appear by telephone at the first directions hearing in that proceeding scheduled for 16 June 2014. In response, he was informed that he would need to obtain the consent of the other parties and provide a telephone number at which he could be contacted for the purposes of the hearing. He did not comply, so he was refused leave to appear by telephone (see at [19(4)]–[19(5)] below). He then failed to appear at the directions hearing.

Mathews v State of Queensland (No 1) [2014] FCCA 1657

18    After recording his non-appearance, Judge Jarrett adjourned the hearing to 23 June 2014 and directed Mr Mathews to appear in person on that date. That direction was based on the following reasoning (see Mathews v State of Queensland (No 1) [2014] FCCA 1657):

9    His application to appear by telephone seems to be based upon an assertion that he suffers from an acquired brain injury and is unable to represent himself in the confines of a courtroom, but is able to do so adequately if he is either permitted to appear on the telephone or permitted to argue his applications by way of written submission.

10    So much appears from the most recent correspondence from him to my associate dated 13 June, 2014 and a letter directed to me of the same date. In the letter to my associate Mr Mathews makes clear that whilst he can adequately prepare documents in writing, it takes him some time to do so. He prepares them over a number of sessions. Were he required to stand up in court and present his own submissions orally he would like look a “dithering idiot”.

11    Whether Mr Mathews suffers from the relevant conditions and disabilities that he asserts is a question of evidence, and until the application that he has brought to appear by telephone and to conduct further proceedings in writing has been determined and I have seen the evidence in support of that application, I can not be satisfied that an order for leave to appear electronically is appropriate. Usually, electronic appearance is reserved for cases where the parties are so geographically distant from the court registry that it would be impractical, inconvenient or prohibitively expensive for an applicant or a respondent to appear at court. This does not seem to be one of those cases. There are also cases where the court gives a party leave to appear remotely in proceedings where those proceedings contain allegations of violence, for example, and people are afraid for their own personal safety. This again does not appear to be one of those cases.

12    It may be the case that if Mr Mathews can make out his assertion that the afflictions from which he suffers mean that he cannot effectively stand up in court and represent himself, then an order for electronic or other communication with the court is appropriate, but until Mr Mathews turns up, I can not make that determination. And it may be that if the court determines that he is unable to adequately represent himself, the rules relating to the appointment of a litigation guardian are engaged.

Mathews v State of Queensland (No 2) [2014] FCCA 1658

19    On 23 June 2014, Mr Mathews again failed to appear. Accordingly, Judge Jarrett ordered that all of his outstanding applications be dismissed under r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (the FCC Rules), which rule relates to the default of appearance of a party. This order apparently included Mr Mathews’ substantive proceeding. In making this order, his Honour reasoned as follows (see Mathews v State of Queensland (No 2) [2014] FCCA 1658):

3    The present application filed by Mr Mathews was, on 24 April, 2014, transferred to this court. By that time, Mr Mathews had filed no less than five affidavits and 13 interlocutory applications. Part of the order of Rangiah J made on 24 April, 2014 was that Clark’s Logan City Bus Service (Qld) Pty Ltd make discovery of documents in its control that are directly relevant to the proceedings. There was a consequential order for costs against the applicant in respect of Clark’s costs and expenses of making discovery and giving inspection. Clark’s appears now in these proceedings before me.

4    Since the matter has been before me, the applicant has caused to be filed a further four interlocutory applications. In some of those interlocutory applications, he asks for leave to appear by telephone in the proceedings. When his application for leave to appear by telephone was first made, he was informed of the procedure that was required to be followed to secure an order for leave to appear by telephone. That included securing the consent of the other parties to the proceedings and the provision to my associate of a landline telephone number at which the applicant might be reached for the purposes of the hearing.

5    Neither the consent of the respondents nor the provision of a telephone number, landline or otherwise, was made and so the applicant was advised that there was no leave for him to appear by telephone. Permission to appear by telephone is the exception rather than the rule as, Logan J points out in Mathews v MacDonnell (above).

…

8    There is no sworn medical evidence before me which would suggest that it is appropriate for leave to appear by telephone be granted to the applicant or that for some other reason the applicant be excused from personal attendance.

9    It was said in support of his application for leave to appear by telephone, in submissions and correspondence, to which I referred on the last occasion, that the applicant does not acquit himself well in court. His disabilities, he says, means that he looks like a “dithering idiot” when he presents his case orally and, for that reason, telephone appearance was preferable. But I do not understand that. Whether one appears personally or by telephone, one has to make submissions and the applicant’s disabilities will either prevent him from making submissions or they will not. Perhaps that is the reason for the application now to have the matters dealt with on the papers but I really do not know.

10    In any event, the applicant has effectively deprived the court of the opportunity of assessing for itself whether he truly is incapable of orally presenting his own case as he suggests or whether it is simply a refusal to come to court.

11    These matters taxed Logan J in the decision to which I have already referred and his Honour made some comments about the right of a litigant to appear other than personally in proceedings. In that decision, his Honour said:

Mr Mathews failed to appear at the first directions hearing in this matter. He had asserted a right to appear by telephone. He was not given any permission, exceptionally, to appear by telephone. In the ordinary course of events in a case such as this, appearances would be made in person. Particularly where there is a litigant in person, it is sometimes the case, and the present I apprehend to be one, that the seriousness of a judicial proceeding and the responsibilities of acting accordingly are only brought home by personal appearance. The remoteness which can attend a telephone appearance can fail to bring home adequately to a litigant in person the formality of a judicial proceeding and the need to behave accordingly.

12    More recently, in Mathews & State of Queensland (2014) FCA 574, Dowsett J was dealing with an application for leave to appeal. In that decision, his Honour said:

[See the passage set out at [16] above]

13    The circumstances before me are not unlike those before Logan J or Dowsett J. Those cases involved the same applicant now before me. Mr Mathews has been put on notice that he is required to appear personally and it may be that if he had appeared personally and prosecuted his applications to appear by telephone at subsequent hearings or perhaps to have the balance of the applications dealt with on the papers, the court may have been disposed to make those orders. So much would have depended upon the argument and Mr Mathews appearance before the Court. But Mr Mathews has chosen not to adopt that course.

Mathews v State of Queensland (No 3) [2014] FCCA 1977

20    In July 2014, Mr Mathews filed an application for an order pursuant to r 16.05(2)(a) of the FCC Rules that the orders made on 23 June 2014 be set aside. This rule permits the Court to set aside a judgment or order after it has been entered if “the order is made in the absence of a party”.

21    Shortly thereafter, Mr Mathews also applied for an order that Judge Jarrett disqualify himself on the ground of apprehended bias. His submissions filed in support of that application alleged that this Court “has had a massive bias against [him] since Spender J. decided to corruptly usurp [his] rights and find for Quentin Bryce’s HREOC”, referred to “massive corruption in the Federal Court”, and alleged that he was “judicially defrauded by Spender”.

22    On 11 August 2014, Judge Jarrett dismissed the application that he disqualify himself on the basis that the recognised criteria for such an application had not been made out: see Mathews v State of Queensland (No 3) [2014] FCCA 1977 at [14]–[15]. At the same time, his Honour also dismissed Mr Mathews’ application to set aside his orders of 23 June 2014, stating that:

19    ... there is no explanation for the failure to appear, other than the applicant’s unwillingness to do so. In his affidavit filed in support of his application, he simply reiterates the matters to which he had earlier referred in his affidavits, that is, his suggestion that he has a significant acquired brain injury which results in derailed thinking, and he would prefer to present his arguments in writing. Whether or not that is so, whether or not his acquired brain injury means that he presents, to use his words, “as a dithering idiot” remains to be seen. It may be that, had Mr Mathews appeared, the Court would be convinced of that, and maybe the Court would be of the view that dealing with the matters on the papers, as he suggests should happen, would be an appropriate course.

20    But none of that has been able to occur because of his refusal to appear. There is no explanation for his failure to appear, save for that to which I have just referred. I am not satisfied that if the orders are set aside, it is likely that there would be any different outcome in the proceedings, such that setting the orders aside would be of no particular purpose. For those reasons, that application too is dismissed.

Mathews v State of Queensland (No 4) [2014] FCCA 1978

23    A short time later, Mr Mathews again applied under r 16.05(2)(a) of the FCC Rules, this time to have the orders made by Judge Jarrett on 11 August 2014 (see at [22] above) set aside. Judge Jarrett dismissed that application, stating (see Mathews v State of Queensland (No 4) [2014] FCCA 1978):

3    The applicant, yet again, has chosen not to appear to prosecute his application. In those circumstances, I intend to dismiss the most recent application pursuant to rule 13.03C(l)(c) of the Federal Circuit Court Rules 2001.

4    In addition, I would record that given that there is no further basis advanced by the applicant as far as I can tell beyond the bases upon which he advanced his application that was dismissed by me on 11 August, 2014, it seems that the application is nonetheless doomed to failure.

Proceeding QUD 532 of 2014 – Federal Court of Australia

24    Mr Mathews did not appeal against any of the decisions described above (see at [18]–[23]). Instead, in late September 2014, he filed his current originating application in this Court seeking relief under s 39B of the Judiciary Act 1903 (Cth) (the Judiciary Act) that this Court issue a “Writ of Certiorari in respect of the proceeding in (sic) BRG363 in the Federal Circuit Court of Australia coram Judge Jarrett”. The main grounds of this application were stated in his supporting affidavit as a denial of natural justice and a reasonable apprehension of bias, as follows:

5.    Judge Jarrett has denied me Natural Justice. He he (sic) denied me the opportunity to be heard by a fair tribunal.

6.    Judge Jarrett has required me to appear in real time. Because of my disabilities of Thought Blocking and Derailed Thinking, which are disability manifestations of my brain damage, I cannot speak or argue in real time. In Exhibit RGHM82 Dr Moyle attests to my “thought blacking (sic) and derailed thinking”.

7.    Judge Jarrett has required me to appear in real time to argue that I cannot argue in real time.

8.    Judge Jarrett has decided my application before I have argued it. This gives the reasonable apprehension of bias.

9.    I should not have needed to make an application for the proceeding to be decided “on the papers”. The Duty is upon the Court and Judge Jarrett to extend to me Due Process, Natural Justice and my Human Rights.

25    Mr Mathews also “additionally or alternatively” alleged that Judge Jarrett had breached the Disability Discrimination Act 1992 (Cth) (the Disability Discrimination Act). He expressed that allegation as follows:

13.    It is disability discrimination to require a disabled person to prove their disability and/or matters associated with their disability.

…

16.    It would be oppressive for a non disabled person to be put through all this extra work. It is more so for me with my disabilities hampering my ability to perform.

17.    I advised the court including Judge Jarrett of my disabilities, and the Special Needs of which I was aware.

(Errors and omissions in original)

26    Then, after referring to Judge Jarrett’s decision in Mathews v State of Queensland (No 1) [2014] FCCA 1657 (at [12], cited at [18] above, in which his Honour said that “until Mr Mathews turns up” he could not determine whether he “cannot effectively stand up in court and represent himself”), Mr Mathews said:

19.    Clearly, Jarrett wants me to humiliate myself. I have an LLB, I can represent myself in writing. Notice that Jarrett refers to my “assertions” of my “afflictions”, but does not even permit that I am asserting I have disabilities. Is this so he can ignore my Human Rights as a Disabled person?

…

21.    My disabilities are a matter of specialist medical evidence. While the question is one of law, the decision on that question is based on factual medical evidence, not on my appearance to Jarrett.

22.    I have advised that verbally, I appear like a “dithering idiot”. Does he wish me to humiliate myself? I am sure I would humiliate myself. How would he determine that I needed a “litigation guardian”? I have an LLB.

(Errors in original)

27    Perhaps anticipating a difficulty with his reliance on a breach of the Disability Discrimination Act, Mr Mathews then returned to relying on the alleged denial of natural justice and apprehended bias grounds, as follows:

24.    Whether or not the DDA extends to Jarrett sitting in the FCCA, Jarrett does have duty to extend to me Natural Justice; the Right to be heard by a fair tribunal. I submit that if my special Needs arising from my disabilities are not accommodated, the “hearing” cannot be fair. I maintain that the awareness of Human Rights for disabled persons are incorporated within Natural Justice, in a similar way that interpreters and hearing aid accommodation are a part of Natural Justice.

25.    Jarrett states he had not seen the evidence. I had produced the evidence to him. He ignored it. I subsequently provided the evidence to him by way of affidavit. He has ignored that.

26.    I believe this indicates bad faith.

(Errors in original)

28    After quoting at length from a 2009 paper prepared by the Honourable Catherine Branson QC and various observations in “Mabo (No 2)” about the application of “international law and conventions” in Australia, Mr Mathews further developed the above themes in his affidavit, as follows:

30.    Would Jarrett perform in the same way if I was a deaf and mute person with an LLB? Would Jarrett still require that verbally challenged person to appear in person and argue that he required special needs?

…

33.    I cannot argue in real time, and clearly, Jarrett expected me to humiliate myself as my appearing like a “dithering idiot” would surely do.

34.    Requiring me to humiliate myself is degrading treatment. [Article 7 ICCPR.]

35.    I quote from Exhibit RGHM85, Medical Report from Dr Moyle,

“… and despite my, and other colleagues, writing to point out his thinking gets derailed at hearings, legal hearings are scheduled and decisions go against him.”

36.    In my previous affidavit dated 11th June, 2014, and filed in BRG363 of 2014 in the Federal Circuit Court of Australia on 12th June, 2014, I quote from the Qld government’s ABIOS [Acquired Brain Injury Outreach Service], that the only way to deal with brain damage is to adopt strategies to tend to alleviate the effects of the ABI, as much as is possible. Appearing in real time contradicts the strategies I have adopted. These strategies give rise to “Special Needs” consequent upon my disabilities.

37.    In his Reasons for Judgement for 23rd June 2014, Jarrett refers to matter previously before Justice Logan and Justice Dowsett of the Federal Court. The same problems occurred in those matters. My special needs arising from my substantial and significant disabilities were denigrated and my rights were trammelled by judges of the Federal Court.

…

39.    … Everything is a major chore for me with my brain damage. That does not mean that I am ripe for the sport of the likes of Jarrett, Logan and Dowsett, but clearly they think I am.

40.    I believe this is a continuation of the bad faith corruption I experienced coram Spender in 1992 for the benefit of his friends Quentin Bryce and Patsy Wolfe ...

…

43.    This matter previously came on coram Rangiah J. He is a great mate of Spender. It seems he did not place me at first and was most fair to me. After he realized, he raised himself the prospect of this proceeding being transferred to the FCCA. This was clearly to remove the need for him to disqualify himself.

44.    The Judiciary, who for their own benefit, Judicial Immunity, must realise that they will lose the respect of the community if the courts continue to be corrupt.

45.    I am sure the community will find alternatives if the courts continue to be corrupt.

46.    Previously, I had appeared by telephone. This saved me the chore of having to commute to court. Commuting is a major chore for me with brain damage. I was thankful for small mercies. Still, that was requiring me to appear in real time which I cannot do fairly.

…

48.    I made a written informal application on 5th May, 2014 to Jarrett and attached all the copies of medical certificates which I subsequently attached to my affidavit and called RGHM65 to RGHM80 inclusive.

49.    I hereby affirm, and have previously, that all documents regarding my disabilities that were attached to my application “filed” 5th May, 2014, are true copies of the documents of which they purport to be copies.

50.    I rely upon, not exclusively, the grounds and general evidence of the affects of ABI as per my application “filed” 5th May, 2014, for leave to appear by phone, including all attachments, and I refer the Court to them.

51.    An important strategy for me to deal with my brain damage disability is to keep my life simple and to reduce, size, number and complexity of tasks I have to perform.

52.    If my Special needs arising from my disabilities are not accommodated, my access to my human rights of justice will be infringed.

53.    The requirement for me to act in the way required by Jarrett, is a denial of my Human Rights as I am disabled with brain damage aka Acquired Brain Injury [ABI] aka Repeated Traumatic Brain Injury [RTB] and the manifestation disabilities of “Thought Blocking” and “Derailed Thinking” as in Medical Certificate RGHM82.

54.    It is oppressive of me to be forced to do all the extra work, given my disabilities, including preparation of all these extra affidavits.

(Errors and omissions in original)

29    Soon after Mr Mathews filed his originating application, the State filed the current applications for summary judgment and a vexatious proceedings order. Initially, these applications were set down for hearing before Rangiah J in February 2015.

Mathews v State of Queensland [2015] FCA 191

30    When Mr Mathews did not appear at that hearing, Rangiah J proceeded in his absence. However, in the course of hearing the State’s applications, Rangiah J expressed concerns about whether it was proper for him to determine them, as follows (see Mathews v State of Queensland [2015] FCA 191):

10    At the hearing of the State’s application under the vexatious proceedings provisions, it emerged that among the State’s grounds is that Mr Mathews’ application for leave to appeal against my orders of 24 April 2014 was a vexatious proceeding within the meaning of s 37AM of the Act because the application was made for a wrongful purpose. The wrongful purpose is said to be “to make scandalous accusations without foundation against Rangiah J and others.”

…

12    During the hearing, the State indicated that it wished to continue to rely on its submission that the accusations were scandalous and without foundation. The State submitted that I should proceed to determine that issue in the course of deciding its application. I indicated that I would reserve my judgment, but would consider whether it was appropriate for me to decide the application.

31    These comments appear to have attracted an application from Mr Mathews for Rangiah J to disqualify himself from determining the applications on the ground of apprehended bias. Rangiah J subsequently granted that application and ordered that the State’s applications be heard and determined by another Judge of this Court. In his reasons, his Honour described why he was persuaded to make those orders, as follows (see Mathews v State of Queensland [2015] FCA 191):

13    This case is not quite the same as one where unfounded allegations are made against a Judge with the aim of achieving the disqualification of the Judge – in such a case a Judge ought not too readily withdraw: c.f. Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352, per Mason J. The allegations were made against me by Mr Mathews in a different proceeding, namely the application for leave to appeal. It is the State which relies upon the making of those allegations to support its case that Mr Mathews is a vexatious litigant; they are not raised by Mr Mathews in this proceeding.

14    The difficulty does not lie in determining that the accusations are scandalous, in the sense of being abusive and offensive – they undoubtedly are. The difficulty lies in the same Judge against whom the accusations are made making a finding that they are unfounded.

15    It is true that, on one view, the State’s submission could be dealt with on the basis that Mr Mathews has offered no evidence, whether before Dowsett J or in this application, to support the serious accusations he makes; and in the absence of evidence, the accusations are unfounded.

16    However, I consider that it is in the interests of justice that I should refrain from deciding the State’s application.

32    The State’s two applications were then referred to me for determination. At the hearing before me on 2 April 2015, Mr Mathews again failed to appear. However, approximately one week before that hearing, he sent an email to the Court Registry stating:

As previously advised that due to my disability I cannot appear in real time in this matter.

The actions of the Federal Circuit Court and Federal Court is and has been unlawful discrimination and cheating of me by the public sector.

Russell GH Mathews BCom BSc LLB BA

33    The applications were then heard in Mr Mathews’ absence. At the conclusion of that hearing, the State applied to amend the form of the orders it sought against Mr Mathews and to file a set of supplementary submissions addressing a number of specific issues that had arisen during the hearing. When it filed that set of supplementary submissions it included an application for leave to amend its vexatious proceedings application. Recognising that Mr Mathews was entitled to proper notice of this amendment, the State also applied for directions that he be provided “with an opportunity to respond to the proposed amended application and these submissions”. As a result, a set of directions was made which required the State to provide Mr Mathews with:

(a)    a transcript of the hearing held on 2 April 2015;

(b)    the details of the amendment it sought to make to its vexatious proceedings application; and

(c)    a notification that, if he wished to make submissions in relation to that application, he should do so by a date in May 2015.

34    Mr Mathews took advantage of that opportunity and filed two affidavits. The first was filed before the nominated deadline and essentially took the form of a set of submissions directed, at least in part, to the current application. The second was filed in June 2015, about three weeks after the deadline above. It was a voluminous document which appeared to canvas the whole history of Mr Mathews’ grievances against the State, and many other persons and entities. I allowed Mr Mathews to rely upon the first affidavit, but not the second. In the first affidavit, Mr Mathews stated, among many other things:

3.    For the reasons and evidence previously advised, and in the copies of the two affidavits attached to my “Supplementary Submission”, for which I seek Leave of the Court to Submit, I cannot appear in real time, and request that this affidavit be my “appearance”.

4.    Additionally, by this affidavit, as if from the Bar Table, I apply for leave for the evidence submitted by my most recent, previous Affidavit and this affidavit, and the argument in my Supplementary Submission be considered in this proceeding and be on the record.

(Errors in original)

35    Most of the remainder of this first affidavit contained submissions directed to challenging a number of the oral submissions made at the hearing on 2 April 2015 of the State’s application to have Mr Mathews declared a vexatious litigant. The affidavit concluded with a request in the following terms:

I request that, as I have Brain damage/Acquired Brain Injury [ABI], the Court order that I be provided with transcripts of all hearings, including this one on the 18th June, 2015, including Directions Hearings as an accommodation of my Special Needs arising from my ABI disability. As I use my computer as a major disability aid, I request that these be provided in searchable form.

36    It is convenient to deal with this application at this juncture. While I considered the provision of a transcript of the hearing conducted on 2 April 2015 was necessary to allow Mr Mathews to understand the context in which the State’s application to amend arose, there is no similar reason why Mr Mathews should now be provided with a copy of the transcripts of all the hearings that have been conducted to date. That is all the more so where he has chosen not to attend almost all of those hearings.

THE DEFAULT JUDGMENT APPLICATION

The application

37    Because it raises many of the issues that arise in the State’s summary judgment application and, indeed, Mr Mathews’ substantive proceeding, it is convenient to begin with the State’s third application (see at [3] above). That is: since Mr Mathews failed to appear at the hearing of these applications on 2 April 2015, his substantive proceeding should be summarily dismissed under rr 5.22 and 5.23 of the Rules.

The relevant principles

38    This is essentially the same application as that considered by Logan J in Mathews v MacDonnell [2011] FCA 825 (mentioned by Judge Jarrett at paragraphs 5 and 11 of [19] above), albeit that Logan J there relied upon O 35A r 3 of the former Rules of Court. However, it is to be noted that in Yeo v Damos Earthmoving Pty Ltd, Re Beachwood Developments Pty Ltd (in liq) [2011] FCA 1129, Gordon J held at [9] that rr 5.22 and 5.23 of the Rules are akin to O 35A of the former Rules.

39    In Dauguet v Centrelink [2015] FCA 395 (Dauguet), Mortimer J set out at [135] the principles relevant to the operation of r 5.23, as follows:

… The power to dismiss a proceeding for want of prosecution, or non-compliance is, as a power summarily to dismiss a proceeding without determination of the merits of the claim, one which should be exercised cautiously: see Lawson v NSW Minister for Land & Water Conservation [2007] FCA 8 at [22] per Stone J, referring to McKenzie v South Australia (2005) 214 ALR 214; [2005] FCA 22 at [25]-[26] per Finn J. There may be circumstances in which the power should not be exercised if it is obvious to the Court that an applicant does wish to prosecute her or his claim: see for example Jarrett v Secretary, Department of Families, Community Services and Indigenous Affairs [2008] FCA 1043. In that case, an applicant failed to appear at the first directions hearing and the Court stood the matter over. The applicant then sought leave to appear on the next occasion by telephone, which leave was refused. The applicant did not appear in person and at that stage the respondent applied for orders under the then equivalent to r 5.23 of the Federal Court Rules. Flick J declined to make the order and instead stood the matter over for final hearing, at which the applicant appeared.

Ultimately, Mortimer J did not adopt the approach of Flick J, deciding instead to dismiss the proceeding under r 5.23 because her Honour considered it had “travelled well beyond the circumstances with which Flick J dealt in Jarrett”: see Dauguet at [136]. Similarly, in Stephenson v ACN 000 007 492 Ltd (Under Judicial Management) (Subject to Deed of Company Arrangement) (No 1) [2010] FCA 785 (Stephenson), Perram J used O 35A of the former Rules to dismiss the proceeding where “the moving party [had] failed to appear consecutively at two directions hearings” (see at [3]).

Consideration

40    There can be no doubt that Mr Mathews was aware of the hearing on 2 April 2015 because, about a week before that hearing, the Court Registry sent him a letter by email to the email address provided by him, stating that the State’s applications had been listed for hearing before myself on that date. That email was sent at 2.56 pm on 24 March 2015. At 3.36 pm on the same day, Mr Mathews sent an email in response to the Court Registry. The contents of that email are already set out at [32] above.

41    It will be noted from this email exchange that Mr Mathews did not, on that occasion, apply to appear by telephone, or apply to be excused from appearing in person, or ask for leave to appear in some other form. Instead, he merely asserted that “due to [his] disability [he] cannot appear in real time”. However, this email, and paragraphs 3 and 4 of his affidavit filed in June 2015 (see at [34] above), demonstrate that Mr Mathews was well aware of at least two things. First, that as the applicant in the substantive proceeding, he was required to appear at any hearings related to that proceeding. And, secondly, that he needed to apply for and obtain the leave of the Court if he wanted to be excused from appearing in person at those hearings, or if he wished to appear in a manner other than in person.

42    In recent years, Mr Mathews has varied his approach to his obligation to appear at the hearings fixed in this and other proceedings he has instituted. As I have recorded at [38] above, in 2011, he asserted a right to appear by telephone before Logan J without seeking leave to do so and that led to the dismissal of his proceeding in default of his appearance under O 35A r 3 of the former Rules of Court. In contrast, he appears to have applied for leave, and was permitted to appear by telephone, before Rangiah J on two occasions in early 2014 (see at [10] and [13] above). Then, while he applied for leave to appear by telephone before Dowsett J in May 2014, he refused to provide a telephone number and that led to his application for leave to appeal being dismissed (see at [16] above). He appears to have adopted the same approach when he was first required to appear before Judge Jarrett in the Federal Circuit Court in failing or refusing to provide a telephone number and then failing to appear (see at [17] above). However, on the second occasion, which, it is worth noting, is the central focus of his application in this proceeding, when he was directed to appear in person, he simply failed or refused to do so (see at [19] above). For both of his subsequent applications under r 16.05(2)(a) of the FCC Rules, he made no application for leave to appear by telephone, or in some other form, and simply failed or refused to appear (see at [20]–[23] above).

43    From this review of the recent history of Mr Mathews’ approach to his obligation to appear at various Court hearings, it becomes apparent that, with the exception of the two appearances before Rangiah J, where the issue does not appear to have arisen, he either: asserted a right to appear by telephone without seeking leave, or was not willing to abide by the conditions set for his leave to appear by telephone, or was not willing to comply with the obligation at all apparently on the basis that he, and not the Court, should determine whether his disability was such that he required some special accommodation in the manner in which he appeared.

Conclusion – a deliberate default

44    His non-appearance on 2 April 2015 fell into the latter category. On that occasion, he did not make any prior application to appear by telephone, or to be afforded some special accommodation to facilitate his appearance. He merely stated that he could not appear because of his disability. I do not consider Mr Mathews’ ex post facto application in his affidavit filed three months later (see at [34] above) remedies this default. If anything, I consider it compounds it. Given the recent history of his non-appearances before various Courts detailed above, I consider his non-appearance on 2 April 2015 was therefore quite deliberate. It constituted a form of default similar in nature to those that occurred in Dauguet and Stephenson (see at [39] above). In my view, this default justifies the dismissal of Mr Mathews’ proceeding under r 5.23 of the Rules.

45    This conclusion would ordinarily make it unnecessary for me to consider the State’s first application (see at [1] above). However, the Rules contain a provision similar to r 16.05(2)(a) of the FCC Rules (see r 39.05(a) of the Rules) which would allow Mr Mathews to apply to set aside any order made under r 5.23 of the Rules. If he were to take that course, that would prolong this proceeding as it did with the proceeding before Judge Jarrett. To attempt to avoid that outcome, I therefore propose to proceed to consider the State’s first application as well. That is the application to which I will now turn.

THE SUMMARY JUDGMENT APPLICATION

The application

46    In its written submissions, the State specifically relied upon s 31A(2)(b) of the Federal Court Act and r 26.01(1)(a) of the Rules submitting that Mr Mathews “has no reasonable prospect of successfully prosecuting the proceeding” for a writ of certiorari. In the alternative, it also relied upon r 26.01(b), (c) and (d) of the Rules, submitting that Mr Mathews’ proceeding is frivolous and vexatious, that it does not disclose a reasonable cause of action, and that it is an abuse of the process of the Court.

The relevant principles

47    I have had the occasion to outline the principles applicable to a summary judgment application of this kind in two recent decisions: see Krajniw v Newman (No 2) [2015] FCA 673 at [9]–[12] and Crocker v Toys ‘R’ Us (Australia) Pty Ltd (No 3) [2015] FCA 728 at [8]–[11]. I will apply those principles in this application but, in the interests of brevity, I will not reiterate them here.

The issues and contentions

48    In compliance with an order of Collier J, Mr Mathews has filed a statement identifying the terms of the decision that is the subject of his application. It appears from that document that the decision in question is Judge Jarrett’s decision of 23 June 2014 to dismiss all his outstanding applications and to order him to pay costs: see Mathews v State of Queensland (No 2) [2014] FCCA 1658 at [19] above.

49    The immediate background to that decision is set out at [18] above. The gist of Judge Jarrett’s reasons for dismissing Mr Mathews’ proceeding is contained in paragraphs [10]–[13] of his reasons (see at [19] above). In summary, because Mr Mathews refused to appear in person and to allow the Court to determine whether or not he should thereafter be permitted to appear by telephone, or in some other manner, he had therefore refused to attend the hearing and that refusal justified the dismissal of his proceeding.

50    Mr Mathews identified three aspects of Judge Jarrett’s decision that he claimed involved error. In summary, they are:

(a)    that Judge Jarrett denied him natural justice by requiring him “to appear in real time to argue that I cannot argue in real time”. He claimed, among other things, that he should not be required to “make an application for the proceeding to be decided ‘on the papers’” and that Judge Jarrett had refused to extend to him “due process, natural justice and my human rights”: see at [24 above;

(b)    that Judge Jarrett was reasonably apprehended to be biased in his decision, in particular, that he had “decided my application before I have argued it”: see at [24] above; and

(c)    that Judge Jarrett breached the Disability Discrimination Act in his treatment of Mr Mathews. He claimed his Honour did that by requiring “a disabled person to prove their disability and/or matters associated with their disability”. He also claimed it was “oppressive for a non disabled person to be put through all this extra work. It is more so for me with my disability”: see at [25] above.

51    Addressing the contentions above in reverse order, the State contended that judicial immunity applied to Judge Jarrett and, in any event, because of the High Court’s decision in Re East, Ex parte Nguyen (1998) 196 CLR 354 (Re East) and the decision of Besanko J in French v Gray, Special Minister of State (2013) 217 FCR 404; [2013] FCA 263 (French), Mr Mathews cannot seek a remedy for an alleged breach of the Disability Discrimination Act, or for an alleged breach of international human rights treaties such as the International Convention on Civil and Political Rights (opened for signature 19 December 1996, 999 UNTS 171, entered into force 23 March 1976), or the Convention on the Rights of Persons with Disability (opened for signature 30 March 2007, 2515 UNTS 3, entered into force 3 May 2008). Further, it contended there was nothing to support Mr Mathews’ claim that there was a reasonable apprehension that Judge Jarrett was biased. Finally, while it accepted that he may advance an argument in certiorari proceedings that he had been denied natural justice by Judge Jarrett, it contended he was not, in fact, denied natural justice in any way.

52    It is difficult to fathom how it is that Mr Mathews puts his claim in this proceeding for the issue of a writ of certiorari. In his originating application, he has expressly relied upon s 39B(1) of the Judiciary Act. However, the issue of such a writ is not available as an independent form of relief under that section, but rather as a form of relief that is ancillary to a writ of mandamus or prohibition: see Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651; [2007] HCA 14 at [70]. Nonetheless, he did seek, by way of interlocutory relief, a stay of the proceeding in the Federal Circuit Court. This, too, is curious, because one apparent effect of Judge Jarrett’s orders of 23 June 2014 was to dismiss that proceeding (see at [19] above). Nevertheless, putting aside its apparent lack of utility, and the fact it was not sought as final relief, I will, somewhat generously, assume this stay was intended to be an application for a writ of prohibition to prevent Judge Jarrett continuing to deal with the proceeding. This approach is partly supported, on the one hand, by the fact that the primary focus of Mr Mathews supporting affidavit in this proceeding is an alleged denial of natural justice, bias and a breach of the Disability Discrimination Act and, on the other, that he has made no attempt to identify any other kind of error in the judgment itself: see Craig v South Australia (1995) 184 CLR 163. The consequence of this approach is that Mr Mathews’ application for the issue of a writ of certiorari could be treated as ancillary to this application for a writ of prohibition. Further, on this approach, Mr Mathews would need to establish that Judge Jarrett committed a jurisdictional error in his decision of 23 June 2014, and, as I have mentioned above, this fits with his denial of natural justice allegations which can, of course, constitute jurisdictional error: see Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2 at [83]. However, even if I were to proceed on this assumption, I do not consider Mr Mathews has any reasonable prospect of successfully prosecuting this proceeding. That is so because he will not be able to establish any error, let alone jurisdictional error, on the part of Judge Jarrett in his decision of 23 June 2014. To demonstrate how I have reached this conclusion, I will deal with Mr Mathews’ three broad grounds of alleged error in the order in which they appear at [50] above. Before doing so, it is worth adding that, if I did not make the assumption referred to above, I consider the State would be entitled to summary judgment in this proceeding because the relief sought is not available under s 39B(1) of the Judiciary Act.

The natural justice ground

53    It is an essential characteristic of court proceedings in this country that they are conducted in public: see Hogan v Hinch (2011) 243 CLR 506; [2011] HCA 4 (Hogan) at [20] per French CJ and Australian Broadcasting Commission v Parish (1980) 29 ALR 228 per Bowen CJ, Franki and Deane JJ. With regard to the Federal Circuit Court, this principle of open justice is reflected in s 13(2) of the Federal Circuit Court of Australia Act 1999 (Cth) (the Federal Circuit Court Act) which states that the “jurisdiction of the Federal Circuit Court of Australia must be exercised in open court”. In this Court, the corresponding provision is s 17 of the Federal Court Act. Among other things, this principle means that the parties to court proceedings are required to attend in person, or through a lawyer, and present their cases orally in open court: see Coulter v The Queen (1988) 164 CLR 350 (Coulter) at 358 and Collins v The Queen (1975) 133 CLR 120 at 122. In this Court, this requirement is stated positively in r 5.04(2) of the Rules: “A party, or the party’s lawyer, must attend any hearing of the proceeding”, and negatively in the default provisions of r 5.22(c) of the Rules. In the Federal Circuit Court, the requirement is implicit in the “default of appearance of a party” provisions of r 13.03C, particularly sub-rules (1)(c) and (d), which allow the Court to dismiss an application if the absent party is an applicant, or dismiss an interlocutory application, or cross-claim, if the absent party is a party who has made the application, or claim concerned.

54    There are, of course, exceptions to this open justice principle directed to advancing the interests of the administration of justice. While the class of those exceptions remains open, they include cases involving trade secrets, national security concerns, and the identity of police informers: see Hogan at [21] per French CJ and [88] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ. Self-evidently in this class of cases, it is for the Court to determine whether it is in the interests of the administration of justice to depart from the open justice principle in a particular case. However, it should be noted that these exceptions do not generally affect the requirement for the parties to appear at the hearings in a proceeding.

55    There is also an exception where the proceeding is not “in the ordinary course of litigation”, such as a special leave to appeal application to the High Court: see Coulter at 356. In that instance, the application is usually determined on the written submissions filed by the parties without the need for any appearance at a hearing. However, if the Court decides that an oral hearing is necessary, the parties, or the party if it is an ex parte hearing, are required to appear at that hearing. Similar considerations would arise if a judge of this Court decided to conduct a hearing “on the papers” using the general power contained in s 23 of the Federal Court Act (see Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 6) [2007] FCA 2075 at [4] per Heerey J),or the express powers now contained in s 20A, which allow the Court to deal with civil matters without a hearing in certain circumstances.

56    In more recent times, this requirement for a personal appearance at a hearing has been affected by advances in communications technology. As a consequence, in 1999, provisions were included in the predecessor to the Federal Circuit Court Act (being Pt VI Div 5 of the Federal Magistrates Court Act 1999 (Cth)) to allow for the use of such technology at court hearings. Similar provisions were included in the Federal Court Act in 2002 (see ss 47 to 47G). In the Federal Circuit Court Act, these provisions are limited to video links or audio links, whereas in the Federal Court Act, they also extend to include “all other appropriate means”. In both Acts, the expressions “video link” and “audio link” are exclusively defined in identical terms: see s 5 of the Federal Circuit Court Act and s 4 of the Federal Court Act. These provisions give the Court, or a Judge, on the application of a party to the proceedings concerned, or on the initiative of the Court or Judge, the discretion to “direct or allow a person to appear before” the Court, or Judge, by way of such technology: see s 67(1) of the Federal Circuit Court Act and s 47B(1) of the Federal Court Act. Both sets of provisions also prescribe various conditions for the use of such technology: see s 69(3) of the Federal Circuit Court Act and s 47C(3) of the Federal Court Act. Importantly for present purposes, they provide that the Court or Judge “must not exercise the power conferred” unless the prescribed set of conditions is met.

57    While this Court has issued a Practice Note (CM 22) dealing with video link hearing arrangements, the Federal Circuit Court has not. Notably, and consistently with the open justice principle mentioned above, cl 5.2 of this Court’s Practice Note states that “[t]he [video link] hearing will, as closely as possible, be conducted in accordance with the usual practice of the Court in open court”. However, the Federal Circuit Court has published a Protocol on its website dealing with video and audio links. That Protocol begins by stating, among other things: “The Federal Circuit Court utilises technology to assist litigants in reducing costs and court delays. Audio and audio-visual links are used in appropriate situations”. The Protocol then sets out the terms of ss 66 and 69 of the Federal Circuit Court Act, and proceeds to prescribe the administrative arrangements to be followed, in these terms:

A request should be made at least 7 days prior to the scheduled event to allow for the booking of the necessary equipment.

Request to use video or audio links should be directed to the associate of the judge having control of the matter. Requests can be made by phone or in writing.

58    In Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (2015) 231 FCR 531; [2015] FCA 627, Besanko J dealt with an application to allow testimony to be given via video link from a witness in New Zealand. While that application was dealt with under the Trans-Tasman Proceedings Act 2010 (Cth), rather than s 47A of the Federal Court Act, the provisions concerned, and the discretion to be exercised, are relevantly the same (see at [13] of that decision). Further, since the provisions allowing for testimony to be given by video link or audio link and for a party to appear by the use of such technology are expressed in similar terms and deal with the same general subject matter, I consider the observations made by Besanko J about the principles guiding the exercise of the former discretion provide assistance in the exercise of the latter.

59    After referring to a decision of Gordon J in Kirby v Centro Properties Ltd (2012) 288 ALR 601; [2012] FCA 60 (Kirby), which identified at [4]–[5] two countering approaches to the exercise of the discretion to allow evidence to be given by video link, Besanko J agreed with the observations of Flick J in Corrigan v Commvault Systems (Australia) Pty Ltd (2011) 192 FCR 71; [2011] FCA 107 (at [11] and [16]) “that the discretion is a broad one with a determining consideration being the interests of justice”. It is, however, instructive to set out the countering approaches identified by Gordon J in Kirby, as follows:

4    The first is that given the advanced state of video link technology and also because of the convenience of the procedure and the savings in time and cost, a substantial case needs to be made out to warrant the Court declining to make an order for evidence to be taken by video link: see Reinsurance Australia Corp Ltd v HIH Casualty & General Insurance (in liq) [2002] FCA 1549 at [10]-[11]; Versace v Monte [2001] FCA 1454 at [16] and Tetra Pak Marketing Pty Ltd v Musashi Pty Ltd [2000] FCA 1261 at [25].

5    The other approach has been described as more cautious, and requires good reason to be shown before leave to give evidence by video link is granted: Australian Competition & Consumer Commission v World Netsafe Pty Ltd [2002] FCA 526 at [7]; Sunstate Airlines (Qld) Pty Ltd v First Chicago Australian Securities Ltd (unreported, NSWSC, Giles CJ, 11 March 1997) at 6; Australian Medical Imaging Pty Ltd v Marconi Medical Systems Australia Pty Ltd (2001) 53 NSWLR 1 at [27].

(Emphasis in original)

60    It is also worth mentioning the decision of Minister for Immigration and Citizenship v MZYLE (2011) 123 ALD 548; [2011] FCA 1210. That decision concerned an application by a respondent to an appeal brought by the Minister for Immigration and Citizenship to appear at the hearing of the appeal in Melbourne, via video link from Darwin. North J granted the application, observing that the power to make such an order was a discretionary one which was to be exercised to advance the interest of justice (see at [12]).

61    It is apparent from this review of the relevant administrative arrangements, statutory provisions and authorities that Judge Jarrett made no error in his decision of 23 June 2014. Even on the more liberal approach illuminated in the authorities cited by Gordon J in Kirby at [4], Mr Mathews had no right to appear by telephone at the hearings before Judge Jarrett. Instead, he was required to apply for leave to appear in that manner and it was for his Honour to assess whether there was a substantial case why he should be refused leave. On the other hand, on the more restrictive approach, he would have needed to persuade Judge Jarrett that there was a good reason why leave should be granted. It was entirely a matter for Judge Jarrett to decide which approach he took in the exercise of his discretion and to make an assessment of the substantial case, or good reason, as the case may be.

62    In the event, Judge Jarrett initially decided to exercise his discretion to allow Mr Mathews to appear by telephone at the first directions hearing, provided that he obtained the consent of the other parties and he supplied a telephone number to the Court in advance of the hearing. Mr Mathews apparently could not, or would not, comply with those conditions. Instead, he simply failed to appear, not once, but twice.

63    In these circumstances, Mr Mathews’ claims that Judge Jarrett erred and denied him natural justice are fallacious. If there was any denial involved, it was Mr Mathews’ refusal to accept the Court’s discretionary power to allow him to appear other than in person and to fix such conditions on that appearance as it considered appropriate. In arrogating to himself the right to determine those matters and, based upon his erroneous assumption of that right, in failing to appear at all, Mr Mathews defaulted on his obligation to appear at the hearings concerned and, at the same time, necessarily forfeited his right to be present at those hearings. These consequences arose from his errors, not any error on the part of Judge Jarrett.

64    For these reasons, I do not consider Mr Mathews has any reasonable prospect of successfully prosecuting his claim that Judge Jarrett denied him natural justice in his conduct prior to, or during, the hearing on 23 June 2014.

The apprehended bias ground

65    The well-established test for apprehended bias 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”: see Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at [31] per Gummow ACJ, Hayne, Crennan and Bell JJ. The High Court has also observed that an allegation of apprehended bias must be “distinctly made and clearly proved”: see Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507; [2001] HCA 17 at [69] per Gleeson CJ and Gummow J.

66    Far from being distinctly made and clearly proved, in his affidavit in support of his originating application, Mr Mathews provided no particulars of his allegation of apprehended bias against Judge Jarrett and, beyond mere assertion, provided no factual basis for it. This is most likely explained by the fact that there was nothing in Judge Jarrett’s conduct leading up to, or during, the hearing on 23 June 2014 that could support an allegation of apprehended bias against him. Judge Jarrett allowed Mr Mathews to appear by telephone at the initial hearing on 16 June 2014, provided that he met two conditions. In doing so, his Honour made it clear that he would thereafter consider how Mr Mathews would be required to appear at the future hearings in his proceeding. This approach was entirely consistent with the due exercise of his discretionary power to determine the manner in which Mr Mathews appeared before him. In those circumstances, I do not consider any reasonable lay observer might conclude that Judge Jarrett might not bring an impartial and unprejudiced mind to the resolution of the questions he was required to decide in Mr Mathews’ proceeding.

67    For these reasons, I do not consider Mr Mathews has any reasonable prospect of successfully prosecuting his claims that an apprehension of bias arose in relation to Judge Jarrett’s conduct of the hearing on 23 June 2014, or the steps leading up to that hearing.

The breach of the Disability Discrimination Act ground

68    As the State correctly stated in its submissions, a judicial officer of the Commonwealth, such as Judge Jarrett, was protected by immunity from suit with respect to any acts done in the exercise of his judicial functions: see Re East at [30]. Furthermore, even if one were to assume Judge Jarrett’s conduct involved a breach of the Disability Discrimination Act, or a related international treaty, the State is also correct in its submission that the effect of the decisions in Re East and French is that the only remedy available to Mr Mathews for such a breach is to pursue the complaint procedure now contained in Pt IIB of the AHRC Act: see Re East at [26] and [32] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ and French at [150]–[151] per Besanko J. For these reasons, I do not consider Mr Mathews has any reasonable prospect of successfully prosecuting his claims that Judge Jarrett committed a breach of the Disability Discrimination Act, or a related international treaty, in his conduct of the hearing on 23 June 2014.

Conclusion on the summary judgment application

69    For the reasons set out above, I do not consider that Mr Mathews has any reasonable prospect of succeeding on any of the three alleged grounds of error raised in his affidavit in support of his originating application in this proceeding. Quite apart from having no prospect of establishing error on Judge Jarrett’s part, I do not consider Mr Mathews has any prospect of establishing any jurisdictional error in the discretionary decisions Judge Jarrett made. In reaching this conclusion, I have taken into account the need for caution in summarily terminating a proceeding such as this: see Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28 at [24] per French CJ and Gummow J. It follows from this conclusion that, as well as succeeding in the dismissal of this proceeding on the ground of Mr Mathews’ default (see at [44] above), the State is entitled to summary judgment against Mr Mathews in relation to the whole of the proceeding under s 31A(2)(a) of the Federal Court Act and r 26.01(1)(a) of the Rules. Except to add that this conclusion also necessarily means that I consider that no reasonable cause of action has been disclosed in Mr Mathews’ proceeding (see r 26.01(1)(c) of the Rules), it is unnecessary for me to consider the other alternative grounds under r 26.01(1) of the Rules (see at [46] above).

THE VEXATIOUS PROCEEDINGS APPLICATION

The application

70    I turn now to consider the State’s second application, its vexatious proceedings application (see at [2] above). The State has brought this application in this proceeding, rather than separate proceedings. Section 37AO does not specify whether a vexatious proceedings application is to be brought in the proceeding which has provoked the application, or in separate proceedings. By comparison, r 42.11(1) of the Rules expressly provides that a contempt application must be brought as an interlocutory application in the proceeding to which it relates. However, it is implicit in the provisions of s 37AO(2)(a), which gives the Court the power to stay or dismiss the proceeding in question, that the application should be brought in the proceeding. This approach is also consistent with the requirements of s 22 of the Federal Court Act – requiring the avoidance of multiplicity – and the pursuit of the overarching purpose of civil proceedings in s 37M of the Federal Court Act. I therefore consider it was appropriate for the State to bring its application as it did.

The relief sought

71    The orders the State seeks in its amended application are:

1.    A declaration that the Applicant is a person who has frequently instituted and conducted vexatious proceedings in Australia within the meaning of s 37AM of the Federal Court of Australia Act 1976 (the Act);

2.    An order under s 37AO(2)(a) of the Act that the whole of the proceeding (QUD532/2014) instituted by the Applicant in the Federal Court of Australia be stayed;

3.    An order under s 37AO(b) of the Act that the Applicant be prohibited from instituting any proceedings in the Federal Court of Australia against State of Queensland, its agencies, statutory bodies and their employees;

4.    An order under s 32 of the Act and s 88Q of the Federal Circuit Court of Australia Act 1999 that the Applicant be prohibited from instituting any proceedings in the Federal Circuit Court of Australia against State of Queensland, its agencies, statutory bodies and their employees;

5.    That the applicant pay the Respondent’s costs of and incidental to this proceeding; and

6.    Any other order the Court considers appropriate.

72    It should be noted that order 2 sought above has been rendered otiose by the State’s success in its default judgment and summary judgment applications.

73    Order 1 sought above is based on the Court’s discretionary power to make declarations of right as contained in s 21 of the Federal Court Act. This power is broad and firmly established: see Forster v Jododex Australia Pty Limited (1972) 127 CLR 421 at 437–438; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 581–582; Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (No 2) (1993) 41 FCR 89 at 99 per Sheppard J; Australian Competition and Consumer Commission v Target Australia Pty Ltd [2001] FCA 1326 at [14] per Lee J; and Australian Competition and Consumer Commission v Cement Australia Pty Ltd [2014] FCA 148 (Cement Australia) at [16] per Greenwood J.

74    I will deal with the issues raised by order 4 sought above later in these reasons. It should be noted that this is the aspect of the State’s application which it sought to add by way of amendment (see at [33] above).

The relevant legislative provisions

75    Order 3 sought above is based upon the vexatious proceedings provisions contained in Part VAAA of the Federal Court Act. Specifically, s 37AO relevantly provides:

37AO Making vexatious proceedings orders

(1)    This section applies if the Court is satisfied:

(a)    a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals; or

…

(2)    The Court may make any or all of the following orders:

(a)    an order staying or dismissing all or part of any proceedings in the Court already instituted by the person;

(b)    an order prohibiting the person from instituting proceedings, or proceedings of a particular type, in the Court;

(c)    any other order the Court considers appropriate in relation to the person.

76    A number of the expressions used in s 37AO are defined in s 37AM(1), as follows:

Australian court or tribunal means a court or tribunal of the Commonwealth, a State or a Territory.

institute, in relation to proceedings, includes:

(a)    for civil proceedings—the taking of a step or the making of an application that may be necessary before proceedings can be started against a party; and

(b)    for proceedings before a tribunal—the taking of a step or the making of an application that may be necessary before proceedings can be started before the tribunal; and

(c)    for criminal proceedings—the making of a complaint or the obtaining of a warrant for the arrest of an alleged offender; and

(d)    for civil or criminal proceedings or proceedings before a tribunal—the taking of a step or the making of an application that may be necessary to start an appeal in relation to the proceedings or to a decision made in the course of the proceedings.

proceeding:

(a)    in relation to a court—has the meaning given by section 4; and

(b)    in relation to a tribunal—means a proceeding in the tribunal, whether between parties or not, and includes an incidental proceeding in the course of, or in connection with, a proceeding.

proceedings of a particular type includes:

(a)    proceedings in relation to a particular matter; and

(b)    proceedings against a particular person.

vexatious proceeding includes:

(a)     a proceeding that is an abuse of the process of a court or tribunal; and

(b)    a proceeding instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and

(c)    a proceeding instituted or pursued in a court or tribunal without reasonable ground; and

(d)    a proceeding conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.

vexatious proceedings order means an order made under subsection 37AO(2).

The principles on the operation of the vexatious proceedings provisions

77    The competing rights that are at stake in the operation of the vexatious proceedings provisions above were identified by the Full Court in Fuller v Toms [2015] FCAFC 91 (Fuller) in the following terms (at [31]):

Section 37AO of the Federal Court Act empowers a court to balance the right of one individual of access to justice with other rights namely, a correlative right on the part of the present respondents to finality and the separate right of other individuals also to access this Court. It is for this Court, the present manifestation of a recognition by the Australian Parliament, the origins of which may be traced to an earlier recognition by the United Kingdom Parliament, via the Vexatious Actions Act 1896 (UK) (59 & 60 Vict. C. 51), of a need for a power to effect just such a balance.

78    In the preceding paragraph, the Court referred to an observation about the limits to a citizen’s access to justice in a report prepared for the Judiciary of England and Wales (The Judicial Working Group on Litigants in Person: Report, July 2013 at p 31), as follows:

Access to justice does not mean an unfettered access to the courts to pursue frivolous claims and applications. Justice involves a proportionate amount of time and resources being devoted to a particular case. Where the time and resources devoted to one case are disproportionate, that effectively denies parties in another case their fair and timely share; and hence denies them justice.

79    In exercising the discretionary power under s 37AO(2) of the Federal Court Act, the Court must therefore:

… strike a fair balance between the right of applicants to access justice (to bring valid disputes before a court for conclusive determination) and the countervailing right of respondents to finality of litigation and protection from further unmeritorious litigation. Another significant countervailing factor weighing in that balance is the need to safeguard scarce judicial resources so that other litigants before the Court are not unfairly prejudiced and court resources are not unnecessarily wasted.

See Singh v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2011) 282 ALR 56; [2011] FCA 833 at [77] per Bromberg J, referring to the vexatious litigant provisions in force before the enactment of s 37AO, but which observations, in my view, apply equally to s 37AO(2).

80    In Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 (Gargan), Perram J made some observations about the exercise of this discretion, again in relation to the vexatious litigant provisions in force before the enactment of s 37AO, but which observations, in my view, also apply equally to s 37AO, as follows (at [12]):

[O]nce it is concluded that the court’s power to prevent a litigant from commencing or pursuing proceedings has been enlivened, the considerations germane to the exercise of that power are unconfined. However, the factors which will be relevant are informed by the protective purpose which the order serves. Where a litigant displays insight into their previous litigious history this will, no doubt, be relevant for it will suggest — although not determine — a diminution in the risk posed to the public. On the other hand, the manner in which a litigant conducts herself in her affairs generally is also capable of throwing light on whether the commencement of further vexatious proceedings is likely. Those general affairs include the litigant’s defence to the proceedings by which the order restraining him is sought. Because of the protective nature of the jurisdiction it is also relevant to know the extent of the damage and inconvenience the litigant’s forays into the courts have caused, pecuniary or otherwise.

The elements the State must prove

81    Under s 37AO(1)(a), the essential elements the State must prove to succeed in this application are that Mr Mathews has:

(a)    frequently;

(b)    instituted or conducted;

(c)    vexatious proceedings;

(d)    in Australian courts or tribunals.

82    Furthermore, under s 37AO(3)(c), the State must demonstrate that Mr Mathews has instituted or conducted at least one vexatious proceeding against it in order for it to have standing to bring this application. As well, s 37AO(4) contains a requirement that, before any vexatious proceedings order is made, Mr Mathews must be heard on the application or given an opportunity to be heard. Having regard to the history of this application recorded at [32] and [40] above, I consider this requirement has been well met.

83    Set out below are some pertinent observations that have been made in relatively recent decisions of this Court, and others, about the meaning and scope of each of the above elements.

“Frequently”

84    The term “frequently” is not defined in s 37AO, or elsewhere in the Federal Court Act. It therefore has its ordinary meaning: see Fuller at [33]; Garrett v Commissioner of Taxation (2015) 147 ALD 342; [2015] FCA 117 (Garrett) at [8] per Pagone J and Mulhern v Bank of Queensland Ltd (No 3) [2015] FCA 927 (Mulhern) at [10] per Gleeson J. In Fuller, the Full Court adopted (at [33]) the observations of Perry J in HWY Rent Pty Ltd v HWY Rentals (in liq) (No 2) [2014] FCA 449 (HWY) as an apt analysis of the word “frequently”. Her Honour said:

110    Notwithstanding the seriousness of these matters, the power in s 37AO(1)(a) is enlivened only if it can be said that Mr Jarvie instituted or conducted vexatious proceedings ‘frequently’. As Davies J explained in Attorney-General (NSW) v Wilson [2010] NSWSC 1008 at [11]:

It would not be sufficient, therefore, to point to the fact that a litigant had instituted even a number of vexatious proceedings. If the adverb “frequently” could not be used in connection with the sum of them, no order can be made under s 8. That is a significant matter because it is a serious thing to deprive litigants of their access to the courts, a right which might be thought to be an inherent right for persons living in a democratic society under the rule of law - see in that regard In Re Boaler [1915] 1 KB 21 at 34 and Re De W Kennedy (Finance) Pty Ltd v Ley (unreported - Supreme Court NSW, Holland J - 29 March 1978).

111    Without detracting from the seriousness of the consequences of such an order, the use of the term “frequently” nonetheless imports a lesser test than that imposed by the predecessor provision in rule 6.02 which required that vexatious proceedings have been conducted “habitually and persistently”. That test had been said to imply “more than great frequency”, the word “[h]abitually suggest[ing] that the institution of such proceedings occurs as a matter of course, or almost automatically, when the appropriate conditions (whatever they may be) exist; ‘persistently’ suggest[ing] determination, and continuing in the face of difficulty or opposition, with a degree of stubbornness”: Attorney-General v Wentworth (1988) 14 NSWLR 481 at 492 Roden J.

112    The term “frequently” is a relative term and “must be looked at in the context of the litigation being considered”: Attorney General (NSW) v Gargen [2010] NSWSC 1192 at [7] (Davies J); see also Attorney General (NSW) v Wilson [2010] NSWSC 1008 at [12]; Jones v Cusack (1992) 109 ALR 313 (Jones) at 315 (Toohey J), and Chan at [37]. Thus, the court may find that a person has instituted or conducted vexatious proceedings “frequently” even though the number of proceedings may be quite small, such as where the proceedings are an attempt to re-litigate an issue determined against the person: Fuller v Toms [2013] FCA 1422 (Fuller) at [77] (Barker J).

85    It follows that no numerical threshold is prescribed in the legislation and the question whether a person has “frequently” instituted or conducted vexatious proceedings must be answered by reference to the circumstances of each particular case: see HWY at [114].

“Instituted or conducted”

86    As with the word “frequently”, the term “conducted” is not specifically defined in s 37AO or elsewhere in the Federal Court Act. However, the word “institute” is “specifically defined [in s 37AM] in an inclusory way so as, materially, to include, ‘the taking of a step or the making of an application that may be necessary before proceedings can be started against a party’”: see Fuller at [36]. In Fuller, the Court gave some examples of what the terms “instituted” and “conducted” may encompass, as follows (at [38]):

A statement of claim may show that, having regard to earlier proceedings, a current proceeding has been “instituted” vexatiously. The filing and service of a grossly inadequate statement of claim, exhibiting like inadequacies to those already determined by earlier proceedings, may also show that a proceeding is being “conducted” vexatiously …

“Vexatious proceedings”

87    As Pagone J pointed out at [4] in Garrett, the word “vexatious” is not separately defined in s 37AM, or elsewhere in the Federal Court Act. That being so, his Honour adopted the following observations about that expression in the decision of the Full Court of the Supreme Court of Victoria in Gallo v Attorney-General (unreported, Supreme Court of Victoria, Full Court, 4 September 1984 per Starke J, with whom Crockett and Beach JJ agreed, at 12):

In the light of the mischief to which the section is directed, however, it seems to me that the word “vexatious” is not in this context a term of art and is an omnibus expression, which includes proceedings which are scandalous, which disclose no reasonable cause of action, which are oppressive, which are embarrassing, or which are an abuse of the process of the court. All of such and similar proceedings, in my opinion, fall within the meaning of the word “vexatious” in the statute.

In Mulhern (at [8]), Gleeson J followed Pagone J in adopting these observations and I propose to do likewise here.

88    Furthermore, in determining whether a proceeding is vexatious, it is also necessary to have regard to the definition of the expression “vexatious proceeding” in s 37AM of the Federal Court Act. That definition inclusively describes four bases upon which a proceeding may be found to be vexatious, namely:

(a)     a proceeding that is an abuse of the process of a court or tribunal; and

(b)    a proceeding instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and

(c)    a proceeding instituted or pursued in a court or tribunal without reasonable ground; and

(d)    a proceeding conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another.

89    In Attorney-General (NSW) v Chan [2011] NSWSC 1315, Adamson J said of an equivalent provision in the corresponding legislation in New South Wales, being the Vexatious Proceedings Act 2008 (NSW), that (at [33]):

These categories are not discrete, since each of the sub-paragraphs (b)-(d) could properly be regarded as an abuse of process of a court or tribunal. Furthermore, the difference between sub-paragraph (b), which connotes an objective intention on the part of the Defendant, and sub-paragraph (d), which does not, and is concerned with effect and consequence, rather than motive or design, relieves the court of the obligation of determining whether the respondent to such an application intends the consequences of his or her actions, or does not.

See also HWY at [106] per Perry J and Garrett at [4] per Pagone J.

90    The relitigation of matters that have been decided previously, or seeking to institute further proceedings in relation to matters that have been raised, or should more appropriately have been raised, in other proceedings, have been held to constitute vexatious proceedings within the terms of the expression: see Garrett at [11] per Pagone J. So, too, has the institution or pursuit of proceedings without reasonable grounds: see Garrett at [23] per Pagone J and Mulhern at [9] per Gleeson J.

91    Section 37AM of the Federal Court Act defines “proceeding” as follows:

(a)    in relation to a court – has the meaning given by section 4; and

(b)    in relation to a tribunal – means a proceeding in the tribunal, whether between parties or not, and includes an incidental proceeding in the course of, or in connection with, a proceeding .

92    Section 4 (referred to in paragraph (a) above) defines “proceeding” to mean “a proceeding in a court, whether between parties or not, and includes an incidental proceeding in the course of, or in connexion with, a proceeding, and also includes an appeal”. Various types of interlocutory application have been held to fall within the definition of the term “proceeding”, including:

(a)    an interlocutory proceeding within a substantive proceeding directed to the attainment of final relief: see Mulhern at [7];

(b)    an interlocutory application seeking a stay of an appeal and one seeking leave to amend the grounds of an appeal: see Agapis v Plumbers Licensing Board (No 2) [2014] FCA 1045 at [38]–[39] per Gilmour J; and

(c)    an application for an extension of time in which to appeal, an oral application for an adjournment and an application for the issue of a subpoena: see HWY at [102] per Perry J.

The contentions

93    To establish each of these elements, the State relied on Mr Mathews’ conduct in each of his proceedings in this Court and the Federal Circuit Court. It also relied on a number of the interlocutory applications he has made within each of those proceedings, and on a number of other proceedings he has instituted or conducted in various courts in Queensland, in the vast majority of which he was unsuccessful. It pointed out that, while he has been ordered to pay costs on many occasions in the past, Mr Mathews has no demonstrated capacity to pay those costs. Consequently, while he continues to represent himself in proceedings, Mr Mathews has been able to put the State to considerable inconvenience and expensive, without it have any effective redress against him.

94    The State submits that the factors of most significance to its application are:

(a)    Mr Mathews’ repeated failures to appear at the hearings of applications he has made;

(b)    the large number of interlocutory applications Mr Mathews has made, which have either been found to have been made without reasonable grounds, or were not properly pursued in the first place; and

(c)    the allegations of bias and/or impropriety Mr Mathews has constantly made against judicial officers who have dealt with his proceedings, without any evidence to support those allegations.

95    Mr Mathews’ written submissions did not directly deal with the State’s vexatious proceedings application. Rather, he reiterated his contentions that he could not appear in “real time” and that the courts continue to deny him reasonable adjustments on account of his disability.

The proceedings instituted or conducted in Queensland courts

96    In support of its application, the State provided evidence of 15 cases in which Mr Mathews has been involved in various courts (other than this Court and the Federal Circuit Court, except with Case 10) over the past two decades. The pertinent details of those cases are summarised below. They are set out in the order chosen by the State rather than in strict chronological order. The State relied upon many, but not all, of these cases to support its application. It should be noted that some of these cases, particularly the earlier ones, were put forward by the State in the interests of fairness to Mr Mathews and others were included to attempt to provide a more complete picture of Mr Mathews’ litigious history.

Case 1: R v Mathews [1995] QCA 336

97    In this proceeding, Mr Mathews appealed to the Queensland Court of Appeal against his conviction in the Brisbane District Court in 1994 for assaulting a senior legal adviser employed by the Australian Human Rights and Equal Opportunities Commission (a predecessor to the Australian Human Rights Commission) and causing her to suffer bodily harm. The offence occurred at the Brisbane Registry of this Court, where the adviser had arranged to meet Mr Mathews to settle an appeal index. That index related to an appeal by Mr Mathews against a decision of Spender J in proceedings between Mr Mathews and the Commission. Mr Mathews admitted he had taken hold of the adviser to arrest her. The Court of Appeal unanimously dismissed his appeal. It referred to the “lack of substance” in each of the grounds he had raised. It also rejected various allegations Mr Mathews had made against Spender J.

Case 2: Mathews v Thompson [1998] HCATrans 107

98    In 1998, Mr Mathews represented himself in an application to the High Court for special leave to appeal against a conviction for taking a fee as a tax agent while unregistered. The High Court held that there was no error in the decision from which he sought special leave to appeal. Special leave was therefore refused.

Case 3: Mathews v Smith [1997] QCA 365

99    About a year earlier, Mr Mathews successfully appealed, by way of order to review, a conviction entered against him for contempt of court. His appeal was allowed by the Queensland Court of Appeal on the ground that the Magistrate concerned did not afford him an adequate opportunity to be heard.

Case 4: Mathews v Telstra Corporation Limited [1998] QCA 407

100    In 1998, Mr Mathews represented himself in the Queensland Court of Appeal on an application for leave to appeal against an order of the District Court which had struck out certain parts of a plaint he had filed in that Court. The Court of Appeal dismissed his application as unmeritorious.

Case 5: Mathews v Telstra Corporation [1999] HCATrans 505

101    Mr Mathews applied for special leave to appeal to the High Court from the above decision (see Case 4). He represented himself and, according to the transcript, made apparently intelligible submissions. The application was refused on the basis that the interlocutory order of the District Court was not one that should attract a grant of special leave to appeal.

Case 6: Brisbane City Council v Mathews [2006] QSC 25

102    In 2006, in the Supreme Court of Queensland, Fryberg J made a vexatious proceedings order against Mr Mathews on the application of the Brisbane City Council under s 6 of the Vexatious Proceedings Act 2005 (Qld). Section 6(1) of that Act required the Court to be satisfied that Mr Mathews was “a person who has frequently instituted or conducted vexatious proceedings in Australia”. His Honour also ordered that Mr Mathews’ proceedings be stayed against a number of named respondents.

103    While the State told me that, because of s 91 of the Evidence Act 1995 (Cth), it did not rely on this decision as evidence of the fact that Mr Mathews had commenced vexatious proceedings in that Court, it should be noted that s 37AO(6)(b) of the Federal Court Act provides that, for the purposes of s 37AO(1), I may have regard to orders made by any Australian court. Nonetheless, the State relied upon this decision generally, as well as the following particular passages of Fryberg J’s reasons:

… although Mr Mathews was not legally represented before me, he is now a law graduate although not formally admitted. I should also interpolate what is I think fairly well known by all who have had to deal with Mr Mathews, that he does suffer from a degree of disability due to a head injury suffered many years ago. That disability impedes his capacity to concentrate (as he explained to me) after a prolonged period of time and particularly in afternoons. I have, therefore, accorded him priority and allowed the case to proceed first in today’s list.

To return to s 6, the matters set out in the various reasons for judgment which record the way Mr Mathews has conducted the litigation, seem to me to accurately fulfil the description vexatious. In saying that, I take into account the explanations which Mr Mathews has provided to me today.

His misfortune seems to have begun when proceedings against him were commenced in the Human Rights and Equal Opportunities Commission for breaches of the Sex Discrimination Act of the Commonwealth. He was unsuccessful in those proceedings and subsequently launched a number of proceedings in the Federal Court himself. Those are the ones which seem to give rise to the appearance and indeed the reality of vexation.

More recently, Mr Mathews has turned his attention to the 25 people named in the current action. The Council is sued on the basis that it has wrongfully trespassed on his land claiming to be entering to eliminate vermin and has committed nuisance against him by the construction some short distance from his home of a roundabout. Council employees are sued for their conduct as such.

The claims are joined with other claims against relatives of Mr Mathews on the basis which, in my view, is flimsy and without substance, that the relatives who are sued for deceit, negligent misrepresentation and breach of fiduciary duty, have also encouraged the Council in its conduct.

An earlier action in which the Council was joined in proceedings against the relatives for substantially the same relief, was brought before the Court last year. White J ordered that the Council be removed from that action. She also gave Mr Mathews leave to replead the case against his relatives but he did not do so within the time allowed and in consequence the action was subsequently struck out. He has appealed against that decision.

The features of the proceedings to which I have been referred generally are in my view accurately summarised by Mr Peden. There is a joinder of multiple defendants without any basis for joinder; there are allegations of bias against judges which are completely unsubstantiated (and I should add that the allegations made orally before me today included allegations of bias against the lady who is now the Chief Judge of the District Court and also against the lady who is the Governor); there is the making of hopeless claims; there are unparticularised allegations of deceit and fraud; there are exaggerated damages claims; there is non-compliance with Court proceedings and in particular a failure to deliver complying pleadings; and finally, there is bringing of claims in respect of which it is not possible to demonstrate the suffering of any loss.

It might be thought that this is in some way related to Mr Mathews’ disability, but as he himself asserts, that is not the case. He has placed before the Court evidence from a psychologist indicating that he is quite capable of managing his own affairs.

Case 7: Mathews v Rev Canon Professor Morgan [2006] QCA 143

104    Also in 2006, Mr Mathews appealed against an order of Douglas J in the Supreme Court of Queensland refusing him an extension of time to re-plead a statement of claim and dismissing his related proceeding for want of prosecution. Mr Mathews did not appear in person before the Queensland Court of Appeal, but made written submissions which focused on his need for extra time to meet his special needs. He also complained that Douglas J had displayed apprehended bias against him. At [10] of the judgment, Jerrard JA said in relation to that complaint:

The apprehended bias is said to flow from the fact that a second cousin of Douglas J is married to a lawyer who once (in 1990) acted for a complainant in a matter in the Human Rights and Equal Opportunities Commission in which Mr Mathews was the respondent.

At [15], Jerrard JA noted that:

… an electronic search … revealed that Mr Mathews had commenced 16 matters in the Supreme and District Courts, and 30 in the Federal Court. That is a great deal of litigation for any one person to bring, let alone one who argues he cannot concentrate sufficiently to argue his case in person, who relies on opinion evidence that stress exacerbates his difficulties, and who told Douglas J that the trauma (of the proceedings) and anxiety was paralysing him.

105    Unsurprisingly, Mr Mathews’ appeal was dismissed because these complaints lacked any merit.

Case 8: R v Mathews [2010] QCA 196

106    In 2005, a Magistrate convicted Mr Mathews of committing a public nuisance. Some time later, those proceedings were found to be irregular. In 2008, the matter was brought back before the Magistrate concerned, who set aside the conviction. Unfortunately, he did so under a statutory provision that did not provide him with the necessary power. Subsequently, the prosecution offered no evidence on the public nuisance charge and it was dismissed. However, in 2010, Mr Mathews appealed to the District Court of Queensland against the original conviction, even though it had been set aside. This appeal was dismissed: see Mathews v Rantala [2010] QDC 128. Mr Mathews then applied for leave to appeal that decision to the Court of Appeal. He appeared unrepresented in the Queensland Court of Appeal and successfully argued his own case. That appeal was allowed: see R v Mathews [2010] QCA 196.

Case 9: Mathews v Cabrera [2010] QCA 300

107    Mr Mathews was charged in the Magistrates Court with contravening a police direction to remove material from a website. On 12 April 2010, he applied to have the charge dismissed. The Magistrate refused the application and adjourned the matter to a date in May 2010. At the adjourned hearing, the prosecution offered no evidence and the charge was dismissed. Mr Mathews then appealed to the District Court of Queensland against the failure of the Magistrate to dismiss the charge on the earlier occasion. The District Court refused the appeal on the basis that the decision was interlocutory in nature and was not therefore susceptible to appeal under s 222 of the Justices Act 1886 (Qld). Mr Mathews also appealed against “the date’’ of the later decision and this was also refused. Mr Mathews then applied for leave to appeal to the Queensland Court of Appeal. That application was dismissed. The Court of Appeal held that the first decision of the District Court “clearly was correct”.

Case 10: Mathews v MacDonnell [2011] FCA 825

108    In this proceeding, Mr Mathews alleged unlawful discrimination against him by the Social Security Appeals Tribunal and two individuals. When Mr Mathews failed to appear at a hearing in this proceeding, Logan J ordered that it be dismissed. The reasoning his Honour employed in making that dismissal order is already set out above. Indeed, it was referred to in Judge Jarrett’s decision of 23 June 2014 (see at paragraph 11 of [19] above). However, it is worth quoting some other parts of that decision because it shows that, prior to Mr Mathews’ non-appearance on that occasion, he had behaved in a manner similar to the way he did more recently before Judge Jarrett, and subsequently before myself:

5    It did not seem to me in any way appropriate, notwithstanding the failure by Mr Mathews to attend in person at the first directions hearing, to make any orders other than procedural ones in respect of that particular non-appearance. By that, I mean, it did not seem to me appropriate, then and there, to strike out the proceeding on the basis of a failure to appear. Rather, the course which I took was to direct that the active party respondent file by a particular date such application, if any, as she may be advised in respect of default. The effect of that was to put Mr Mathews on notice that orders may be made in respect of the earlier default and any later default, which might have the effect of dismissing his application.

6    Mr Mathews was also separately put on notice that he should provide sworn medical evidence for the consideration of the court in respect of his condition. No such evidence has been provided by him. Further, he has failed to appear today. Evident from the evidence read on behalf of the first respondent is an exchange of email correspondence between the Australian Government Solicitor, who acts for the first respondent, and Mr Mathews. In that exchange, Mr Mathews makes assertions, not all of which are cast in temperate language, in respect of the processes of executive and the judicial branches of government of this country. The noteworthy feature, though, of the exchange is, as I have already observed, an absence of sworn evidence from him as to his disabilities.

7    In those circumstances, there is nothing which would indicate, in terms of evidence, why it is that Mr Mathews is not able to attend in person. Further, looking at the statement which he makes at item 6, one might apprehend that any such evidence may well call into question whether he is at all able to have acted for himself in the filing of the application, given his reference to brain damage. I am prepared though, to assume in his favour that that is not the case, but rather, he has chosen not to file any medical evidence and chosen, for his own reasons, not to appear …

Case 11: Mathews v Commissioner of Police [2011] QCA 341

109    In an application for leave to appeal that Mr Mathews filed in the Queensland Court of Appeal in 2011, Mr Mathews applied for White JA and Douglas J to disqualify themselves from hearing the application. It appears that he also questioned the suitability of Wilson AJA to hear the application. All three judges declined to disqualify themselves.

Case 12: Mathews v Commissioner of Police [2011] QCA 368

110    In 2011, Mr Mathews was charged with using a carriage service to menace, harass or cause offence. At the committal hearing related to that charge, he conducted his own defence. The Magistrate hearing the committal decided that there was evidence that raised a question about Mr Mathews’ fitness to be tried, and referred this question to the District Court of Queensland under the Crimes Act 1914 (Cth). Mr Mathews appealed that decision to the District Court and that appeal was dismissed on the ground that the Magistrate’s decision was not appellable under s 222 of the Justices Act 1886 (Qld): see Mathews v Commissioner of Police [2011] QDC 246. Mr Mathews then applied for leave to appeal to the Queensland Court of Appeal. That Court held that the decision of the District Court was correct and dismissed his application. Mr Mathews then applied to the High Court for special leave to appeal the decision of the Court of Appeal. Hayne and Crennan JJ refused leave holding that the Court of Appeal decision was “plainly right”: see Mathews v Commissioner of Police [2012] HCASL 64.

Case 13: R v Mathews [2012] QCA 298

111    In 2012, Mr Mathews made four separate applications to the Queensland Court of Appeal either for leave to appeal, or for an extension of time in which to appeal. All four applications related to the charge against him mentioned in Case 12 above of using a carriage service to menace, harass or cause offence. Mr Mathews did not appear in person at the hearing of the four applications before the Court of Appeal, which took place in October 2012. Instead, as McMurdo P recorded in her decision (at [22]):

As has become his practice, he relied on his submissions made in the courts below and on further emailed material. He appeared by way of telephone link and made further extensive oral submissions.

Her Honour then proceeded to consider the merits of each application, the pertinent facts of which are set out below.

CA No. 272 of 2012 – application for an extension of time to appeal a decision of Chief Judge Wolfe

112    On 15 June 2012, the proceeding relating to Mr Mathews’ fitness to be tried (see at [110] above) was listed for mention before Chief Judge Wolfe in the District Court at Brisbane. Mr Mathews did not appear at that hearing and instead emailed extensive submissions to her Honour asking her to disqualify herself on the basis of apprehended bias. Her Honour refused that application. In rejecting Mr Mathews’ application for an extension of time to appeal that decision, McMurdo P said (at [25]):

Mr Mathews has made many spurious allegations about Chief Judge Wolfe in his material before this and other courts but he has not produced any evidence to support his claims. The fact that years ago she may have acted either against or for him in a legal proceeding which went badly for him is not in itself evidence of her actual or perceived bias against him. He produced no evidence of the Chief Judge’s actual or perceived bias in the case management hearing of his matter before the Chief Judge and nor has he done so in this court. Her Honour’s orders listing the issue of Mr Mathews’ fitness for trial for review and hearing were unexceptional and unobjectionable in the circumstances. Mr Mathews has not demonstrated any error leading to the making of those orders. The proposed appeal from the Chief Judge’s order would inevitably fail. An extension of time would therefore be futile. For these reasons, CA No 272 of 2012 should be refused.

CA No. 235 of 2012 and CA No. 273 of 2012 – applications relating to the orders of Judge O’Brien

113    On 24 August 2012, the same proceeding was listed for mention before O’Brien DCJ. Mr Mathews again did not appear, but again he sent some lengthy submissions to the Court. In them, he applied for O’Brien DCJ to disqualify himself. O’Brien DCJ refused that application. His Honour also refused an application by Mr Mathews to permanently stay the proceeding relating to the underlying charges. His Honour then listed the fitness to be tried question for hearing at a later date and made directions for material to be filed and served.

114    McMurdo P refused Mr Mathews’ application for leave to appeal against O’Brien DCJ’s refusal to order a permanent stay (CA No. 235 of 2012) on the basis that the charges in question were not before the District Court (see at [23]). Her Honour also refused Mr Mathews’ application for an extension of time (CA No. 273 of 2012) in which to appeal against the orders listing the fitness to be tried issue for hearing. As to this, McMurdo P said (at [24]):

The actual orders made by his Honour … were unexceptional case management orders. Mr Mathews has not demonstrated that they result from any error. I also note that the time for compliance with those orders has now passed so that any appeal would be of arguable utility. It follows that the proposed appeal from these orders would inevitably fail. An extension of time would be futile.

CA No. 274 of 2012 – application for leave to appeal from orders of Shanahan DCJ

115    On 4 October 2012, the same proceeding was mentioned before Shanahan DCJ. Mr Mathews did not appear at that hearing, but again emailed submissions to the Court. In those submissions, he requested Shanahan DCJ to disqualify himself alleging he was part of a Catholic conspiracy against Mr Mathews. Shanahan DCJ refused that application. Shanahan DCJ also refused Mr Mathews’ application to have the forthcoming hearing delisted because he had not complied with the earlier orders of O’Brien DCJ. Mr Mathews applied for leave to appeal against these decisions to the Queensland Court of Appeal. In dismissing that application, McMurdo P said (at [26]):

Mr Mathews did not produce to Judge Shanahan or this Court any credible relevant evidence to demonstrate actual or perceived bias against him. His Honour was plainly right to refuse Mr Mathews’ application to recuse. His Honour’s refusal to delist Mr Mathews’ pending case management hearing on 19 October 2012 was an unexceptional and orthodox exercise of discretion.

Case 14: R v Mathews [2013] QCA 203

116    On 2 November 2012, the Court of Appeal delivered its decision in R v Mathews [2012] QCA 298 (see Case 13 at [111] above). On the same date, a review hearing in the fitness to be tried proceeding was held before Rafter DCJ. That proceeding was due to proceed to trial on 12 November 2012. After being informed of the decision of the Court of Appeal, his Honour ordered that the trial proceed on 12 November 2012. Mr Mathews applied to the Queensland Court of Appeal for leave to appeal against that order. The trial proceeded on 19 November 2012 before Griffin DCJ and a jury. The jury returned a verdict that Mr Mathews was fit to be tried. Mr Mathews also applied for leave to appeal against that verdict. At about the same time, Mr Mathews also filed an application in the Court of Appeal for an extension of time to appeal – for the second time – his 1994 conviction in the District Court of Queensland for assault (see Case 1 at [97] above) and for leave to adduce further evidence in that appeal. Mullins J heard those three applications together. Her Honour dismissed each of them. Her reasons were as follows.

CA No. 296 of 2012 – application relating to the orders of Rafter DCJ

117    First, the background to the application for leave to appeal was outlined by Mullins J as follows (at [4]):

… The application in proceeding CA No 296 of 2012 is for leave to appeal against Judge Rafter’s failure to consider Mr Mathews’ application on 2 November 2012 that the court refuse to hear Mr Hunter of counsel from the Commonwealth Director of Public Prosecutions (CDPP) until such time as Mr Mathews’ human rights as recognised in the Convention on the Rights of Persons with Disabilities (CRPD) were recognised by Mr Hunter and the CDPP as representatives of the Executive Government of the Commonwealth of Australia.

118    In dismissing that application, Mullins J said:

[7]    The nature of the proceeding before Judge Rafter on 2 November 2012 was a trial review of the trial of the issue of Mr Mathews’ fitness to be tried …

[8]    The focus of Mr Mathews’ written submission was the need for special arrangements to be made for him during the trial due to his brain damage disability which affects his ability to perform in real time …

[9]    It was a relevant matter for Judge Rafter on the review of the trial of Mr Mathews’ fitness to be tried and for the trial judge to consider any reasonable arrangements to accommodate Mr Mathews’ disability for that proceeding. There was no legal basis for Mr Mathews, however, to propose that Mr Hunter should not be heard by Judge Rafter, unless the CDPP acknowledged Mr Mathews’ human rights arising from the CRPD.

[10]    As the review before Judge Rafter was overtaken by the fact that the trial did proceed on 19 November 2012, there is no utility in this court reviewing the decision of Judge Rafter on 2 November 2012 to leave the matter listed for trial and not address expressly Mr Mathews’ written submission on the implication of the CRPD for the proceeding.

[11]    The application for leave to appeal against Judge Rafter’s decision should be refused.

CA No. 335 of 2012 – application relating to the jury verdict

119    Mullins J also outlined the background to this application for leave to appeal in the following terms:

[12]    On 19 November 2012, Mr Mathews appeared in court for the trial with his two dogs which he was allowed to keep with him. The trial judge explained to him, in the absence of the jury panel, that the proceedings were to determine his fitness for trial and his capacity to understand the proceedings and explained the process of the jury selection and the steps in the trial. Mr Mathews explained to the trial judge that he had brain damage which affected his concentration and he fatigued quickly and stated that “provided my special needs are accommodated, I am fit to stand trial.”

...

[16]    The prosecution called one witness, psychiatrist Dr Moyle.

[17]    … Dr Moyle’s professional opinion was that Mr Mathews was fit for trial.

[18]    Mr Mathews cross-examined Dr Moyle and confirmed that a person with organic brain damage more readily becomes fatigued. Dr Moyle was cross-examined on the transcript on the committal hearing where the Magistrate observed that Mr Mathews could not cross-examine the witnesses because of his brain injury and that the cross-examination he had undertaken for three days he had done under difficulty and the issue of his ‘derailment’ ...

…

[20]    Mr Mathews addressed the jury. He conveyed to the jury that he thought he was fit to stand trial, but left it to them to make the decision …

120    Mullins J then recorded Mr Mathews’ contentions as follows:

[26]    The grounds of Mr Mathews’ application are that the trial judge displayed apprehended bias against him and denied him a fair hearing in that he did not accommodate the special needs caused by his disability. In his outline, Mr Mathews also submits that the trial judge permitted the Commonwealth of Australia as the CDPP to appear and/or instruct counsel when it had not honoured its obligations and duty pursuant to the CRPD.

121    Finally, Mullins J dismissed the application for the following reasons:

[30]    In the light of the evidence before the jury in the context of Mr Mathews’ own submissions and the unexceptional summing up by the trial judge, Mr Mathews cannot succeed in overturning the jury verdict. If he is ultimately committed for trial on the charges that are currently before the Magistrates Court, it will be a matter for the judge presiding at the trial of those charges to endeavour to accommodate Mr Mathews’ special needs due to his disability.

[31]    Mr Mathews’ application for leave to appeal against the verdict that he is fit for trial should be refused.

CA No. 29 of 2013 – application for extension of time to file second appeal against 1994 conviction

122    Not surprisingly, Mullins J was brief in dismissing this application:

[34]    … This court has no jurisdiction to entertain a second appeal against conviction after an appeal against conviction has been dismissed on the merits …

[35]    There is therefore no point in considering either the application for extension or the application for leave to adduce further evidence. Both applications made by Mr Mathews in CA No 29 of 2013 should be refused.

Case 15: Newton v Brisbane City Council [2014] QCA 242

123    On 26 September 2014, Mr Mathews appeared in person in the Queensland Court of Appeal before Morrison JA. The following excerpt from his Honour’s decision conveniently explains the background to that appearance:

This is an application brought by Mr Russell Matthews (sic) on behalf of Face 2 Face Foundation Pty Ltd (F2F) seeking leave of the Court to appear for that company on today’s application for a stay. …

… the person who … seeks to appear is in fact a vexatious litigant so declared by Fryberg J in this court, that is, the Supreme Court, on 9 February 2006. Under that order Mr Matthews (sic) is prohibited from instituting any proceedings in any court of the State of Queensland against the Brisbane City Council (The Council) and or any employee of the Council.

He seeks to appear, however, on behalf of F2F and thereby there might be an argument that he himself is not instituting a proceeding in a court against the Council. However, the fact that he is a vexatious litigant, and in respect of the respondent to this application, in my view makes him an inappropriate agent to appear for the company were it otherwise reasonable to do so. For those reasons the application for Mr Matthews (sic) to appear for F2F is refused.

The proceedings instituted or conducted in federal courts

124    The State also relied upon the proceedings that Mr Mathews has commenced against the State in this Court since late 2013, commencing with the proceeding under s 46PO of the AHRC Act (see at [5] above) and the applications he made in that proceeding once it was transferred from this Court to the Federal Circuit Court. I have described the procedural history of those four proceedings (noting that two of them are essentially the same proceeding (see at [17] above)) in some detail at [5]–[36] above so it is unnecessary to reiterate that history here.

The vexatious proceedings findings

125    From the 15 cases outlined at [97]–[123] above, the State sought findings that the following six proceedings were instituted in a Queensland court (or, in Case 5, the High Court of Australia) without reasonable ground and were therefore vexatious proceedings within the terms of the vexatious proceedings provisions of Pt VAAA of the Federal Court Act:

(a)    Case 4 (see at [100];

(b)    Case 5 (see at [101]);

(c)    Case 7 (see at [104]–[105]);

(d)    Case 9 (see at [107]);

(e)    Case 13 – the four applications made within it (see at [111]–[115]); and

(f)    Case 14 – the three applications made within it (see at [116]–[122].

126    The circumstances and outcomes of each of these six cases and the various applications made within them show that they were indeed instituted without reasonable grounds within the terms of clause (c) of the definition of “vexatious proceedings” in s 37AM of the Federal Court Act (see at [75] above). While many of these cases were criminal proceedings, it is to be noted that the definition of the word “institute” in s 37AM extends to both civil and criminal proceedings (see at [75] and [86] above). Finally, insofar as some of these six cases involved appeals or applications for leave to appeal or a similar application, it is to be noted that the word “proceeding” is defined to include an appeal and it also includes a proceeding that is incidental to, or in connection with, an appeal (see at [92] above). Plainly enough, an application for leave to appeal or a similar application meets this definition.

127    Taking into account these observations, and the description of the circumstances and outcomes of these six proceedings set out above, I am prepared to make the findings sought by the State that these six proceedings are vexatious proceedings within the terms of the vexatious proceedings provisions of Pt VAAA of the Federal Court Act.

128    Next, I will deal with each of the four proceedings Mr Mathews has instituted or conducted in this Court and the Federal Circuit Court since late 2013, in chronological order. First, as to proceeding QUD 839 of 2013, perhaps unsurprisingly, the State did not contend that Mr Mathews had instituted a vexatious proceeding by filing his originating application in this Court under s 46PO of the AHRC Act. However, it did contend that his conduct of that proceeding was vexatious. In particular, it submitted that each of the nine applications for non-party discovery (see at [11] above), which were dismissed by Rangiah J in Mathews v State of Queensland [2014] FCA 424 (see at [14] above), was a vexatious proceeding within the meaning of s 37AM of the Federal Court Act since each was a proceeding that was an abuse of the processes of the Court and was instituted and pursued without reasonable ground. With the reiteration of the observations above that the word “proceeding” is defined to include interlocutory applications made in connection with a proceeding (see at [92] above), I agree with these contentions and make findings accordingly.

129    Next, as to proceeding QUD 178 of 2014, the State submitted that this application for leave to appeal was a vexatious proceeding within the meaning of s 37AM of the Federal Court Act, in that it was a proceeding instituted without reasonable ground, and it was a proceeding conducted in a court so as to achieve a wrongful purpose, namely to make scandalous and spurious accusations against Rangiah J and others. Without giving currency to any of those accusations by repeating them (see at [15] above), I also agree with these contentions and make a finding accordingly.

130    Then, as to proceeding BRG 363 of 2014 in the Federal Circuit Court, the State contended that each of the applications the subject of the decisions in Mathews v State of Queensland (No 1) [2014] FCCA 1657 (see at [18] above), Mathews v State of Queensland (No 2) [2014] FCCA 1658 (see at [19] above), Mathews v State of Queensland (No 3) [2014] FCCA 1977 (see at [22] above) and Mathews v State of Queensland (No 4) [2014] FCCA 1978 (see at [23] above), was a vexatious proceeding within the meaning of clause (c) of the definition of “vexatious proceeding” in s 37AM of the Federal Court Act, in that it was a proceeding instituted without reasonable ground.

131    I agree that the latter two applications were entirely lacking in merit and make the findings sought by the State in relation to them. However, I do not consider I can make the findings sought in relation to the former two applications. That is so because, as I read the first decision (being Mathews v State of Queensland (No 1) [2014] FCCA 1657 at [18] above), it dealt with Mr Mathews’ application to appear by telephone at the first directions hearing. Since Judge Jarrett granted that application on conditions (with which Mr Mathews later failed to comply), I do not consider that application can be characterised as a vexatious proceeding. As to the second decision (being Mathews v State of Queensland (No 2) [2014] FCCA 1658 at [19] above), I infer that the outstanding applications that were dismissed under r 13.03C(1)(c) of the FCC Rules were the four applications mentioned in [4] of the decision, not the 13 applications mentioned in [3] of the decision (see at [19] above). That being so, I have observed above that one of those applications appears to have been Mr Mathews’ substantive application in the proceeding. The State does not dispute that Mr Mathews was entitled to institute that proceeding under s 46PO of the AHRC Act. It is therefore not open to find that that proceeding is a vexatious proceeding. As to the other applications, Judge Jarrett did not give any details of them in his decision. Without knowing what they related to, I do not consider I can make a finding that they were instituted without reasonable grounds and therefore constitute vexatious proceedings.

132    Finally, as to this proceeding, QUD 532 of 2014, the State contended that Mr Mathews’ application for a writ of certiorari is a proceeding that was instituted without reasonable ground and is a proceeding that has been conducted in this Court so as to achieve a wrongful purpose, namely to make scandalous and spurious accusations against a range of persons, and is therefore a vexatious proceeding within the meaning of s 37AM. I have already made a finding to the former effect (see at [69] above). Given the preposterous nature of the myriad accusations Mr Mathews has made against a wide range of people in his supporting affidavit (see at [26]–[28] above), I have no difficulty coming to the latter conclusion. I therefore make a finding that this current proceeding is a vexatious proceeding within the meaning of s 37AM of the Federal Court Act.

133    In summary, I have found that 11 proceedings instituted, or instituted and conducted, in Queensland courts, or in one case (Case 5) the High Court, (being Case 4, Case 5, Case 7, Case 9, the four applications in Case 13 and the three applications in Case 14) and 13 proceedings instituted, or instituted and conducted, in federal courts (nine applications in proceeding QUD 839 of 2013, one application in proceeding QUD 178 of 2014, two applications in proceeding BRG 363 of 2014 and this proceeding, QUD 532 of 2014) are vexatious proceedings as defined in s 37AM of the Federal Court Act. Consequently, I am satisfied that Mr Mathews is a person who has frequently instituted or conducted vexatious proceedings in Australian courts within the terms of s 37AO(1)(a) of the Federal Court Act (for “frequently” see at [84] above). Since the State is a respondent to each of Mr Mathews’ federal proceedings , I also have no difficulty finding that the State has met the standing requirement in s 37AO(3)(c) of the Federal Court Act (see at [82] above).

APPROPRIATE RELIEF

Mr Mathews’ unfortunate litigious history justifies relief

134    It can be seen from these conclusions and the above review of Mr Mathews’ litigious history over the past two decades that he has repeatedly instituted proceedings against the State and others, raising a variety of claims which either have no prospect of success, or have been conducted in abuse of the processes of the courts concerned, or both. In the process, as is often the case with impecunious litigants in person, he has escaped the discipline that usually flows from the costs orders that have been made against him and, perversely, been exempted from any liability to pay court fees for the numerous applications he has filed. In addition, most of this litigation has been littered with spurious allegations of bias against the judicial officers who have had the misfortune to have to deal with an aspect of it, and scandalous and baseless accusations against judges of this Court and many others. The invective contained in Mr Mathews’ supporting affidavit in this proceeding (see paragraphs 40–45 of [28] above), the observations of Fryberg J in the penultimate paragraph of his decision (at [103] above), the observations of Logan J in his decision (at paragraph 6 of [113] above) and those of McMurdo P in her decision (at [112] above) all provide examples of this propensity. This sorry history lends support to Perram J’s observations that “frequently enough, the vexatious are betrayed out of their own mouths”: see Gargan at [9]. Having regard to this litigious history, I consider the orders sought by the State are well justified. They will serve to protect it from a continuation of Mr Mathews’ litigious harassment, avoid the public expense and resources that have to be devoted to defending his litigation, and, at the same time, ensure that the limited resources of this Court and other Australian courts are not further wasted having to deal with it.

Order 3 – the vexatious proceedings order

135    Despite the seriousness of an order depriving a person of the right to access the courts of this country, I consider that, in the circumstances of this case, the State is entitled to an order in the form of that sought in order 3 at [71] above.

Order 1 – the declaration sought

136    As to the order sought in order 1 at [71] above, there the State seeks a declaration essentially as a precursor to order 3. Since order 3 will encapsulate the relief provided for in s 37AO and since that relief is necessarily founded on the State establishing the various prerequisites contained in that section and s 37AM, I see little purpose in exercising my discretion to make a declaration to the effect of order 1. Put in different terms, I do not consider it is appropriate to exercise the judicial power of the Commonwealth to make a declaration which is essentially an extract from the process of adjudication on the various matters mentioned above as expressed in my reasons for judgment: see Cement Australia at [19]–[20] per Greenwood J.

Order 4 – the order prohibiting proceedings in the Federal Circuit Court

137    Finally, it is necessary to address order 4 sought at [71] above. In order 4, the State seeks an order that Mr Mathews be prohibited from instituting any proceedings against the State, not in this Court, but in the Federal Circuit Court.

138    In applying for order 4 at [71] above, the State has relied upon s 32(1) of the Federal Court Act. It provides:

Associated matters – civil proceedings

(1)    To the extent that the Constitution permits, jurisdiction is conferred on the Court in respect of matters not otherwise within its jurisdiction that are associated with matters (the core matters) in which the jurisdiction of the Court is invoked.

139    The State has done this because it contends the orders permitted by s 37AO(2)(a) and (b) of the Federal Court Act are both directed to proceedings “in the Court”, and s 4 of the Federal Court Act defines the word “Court” to mean the Federal Court of Australia. It follows, so the State contends, that this Court does not have the jurisdiction under s 37AO of the Federal Court Act to make an order prohibiting Mr Mathews from instituting proceedings in the Federal Circuit Court.

140    However, the State points out that Part 6B of the Federal Circuit Court Act is in materially the same terms as Part VAAA of the Federal Court Act. In particular, s 88Q(2) of the Federal Circuit Court Act relevantly states:

(2)    The Federal Circuit Court of Australia may make any or all of the following orders:

…

(b)    an order prohibiting the person from instituting proceedings, or proceedings of a particular type, in the Federal Circuit Court of Australia;

...

141    To make good its reliance on s 32 of the Federal Court Act, the State pointed to decisions such as Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 (Philip Morris) and Johnson Tiles Pty Ltd v Esso Australia Ltd (2000) 104 FCR 564; [2000] FCA 1572 (Johnson Tiles), where it was held that, where jurisdiction is conferred on a federal court in respect of a matter, that conferral carries with it the authority for the Court to determine all claims, federal and non-federal, which are involved in the one controversy. Consequently, the State submitted that:

Claims for orders under the respective statutes [the Federal Court Act and the Federal Circuit Court Act] are facets of the same matter and involve a single justiciable controversy – that is whether Mr Mathews “has frequently instituted or conducted vexation (sic) proceedings in Australian courts or tribunals” …

142    As I will endeavour to explain below, I consider this submission is problematic in two important respects. First, it fails to distinguish between the Court’s accrued jurisdiction and its associated jurisdiction under s 32 of the Federal Court Act. And, secondly, it fails to appreciate that the critical question raised by the State’s application under s 37AO is the Court’s power to make order 4 sought at [71] above.

143    As to the first aspect, the distinction between this Court’s accrued and associated jurisdictions has been highlighted on a number of occasions by Allsop J (as his Honour then was). For example in Macteldir Pty Ltd v Dimovski (2005) 226 ALR 773; [2005] FCA 1528 (Macteldir), his Honour set out (at [66]) a part of the Full Court decision concerned, which was to the effect that s 32 may:

….extend the scope of the Court’s jurisdiction. However, this may only occur if both the original claim and the claim argued to fall within s 32 are part of one “matter”; the test being whether both claims arise out of the same substratum of fact …

144    At [67], his Honour pointedly disagreed with this description of the effect of s 32, saying:

... The only High Court authority is to the effect (conformably with the words of s 32) that s 32 of the FCA Act deals with separate and distinct matters. It is not what is sometimes called “accrued” jurisdiction. This latter expression may be better expressed as the limit of the matter or controversy. Associated jurisdiction under s 32 is the conferral of jurisdiction in another, different, federal matter, in respect of which jurisdiction could be, but has not been, conferred. The word “associated” is not a synonym for “accrued”.

145    Immediately after this observation, his Honour identified the High Court authority to which he was referring, as follows (at [67]):

In Philip Morris Inc v Adam P Brown Male Fashions (1981) 148 CLR 457, Barwick CJ at 476 indicated that “associated” embraced matters which may be disparate from each other, that is, not within the “accrued” jurisdiction of the already conferred federal matter. Gaudron J in PCS Operations Pty Ltd v Maritime Union of Australia (1998) 153 ALR 520, 521 was of the view that Barwick CJ’s views were implicit in the other judgments in that case. (See Philip Morris at 494-95, 518, 521-22.)

146    Similar views have been expressed by his Honour in Alstom Power Ltd v Polar Circle AS [2004] FCA 607 at [10] and Elbe Shipping SA v The Ship “Global Peace” (2006) 154 FCR 439; [2006] FCA 954 at [60], albeit that the latter decision dealt with s 12 of the Admiralty Act 1988 (Cth), which contains a similar provision to s 32. His Honour has also written about the topic extra judicially in an article entitled “Federal jurisdiction and the jurisdiction of the Federal Court of Australia in 2002” published at (2002) 23 Australian Bar Review 29 (see pp 47–48).

147    On the scope of the Court’s associated jurisdiction, in PCS Operations Pty Ltd v Maritime Union of Australia (1998) 153 ALR 520; [1998] HCA 29 (at [12]) (the second High Court case mentioned at [67] of Macteldir above), Gaudron J held that s 32(1) was not confined to extending the Court’s jurisdiction to matters arising under federal laws. Nonetheless, while the limits of the associated jurisdiction may remain an open question, it is beyond doubt that, where s 32 applies, it at least extends to give the Court jurisdiction to determine matters arising under other federal laws made by the Parliament: see Turner v Owen (1990) 26 FCR 366 at 375–377 per Pincus J adopting the view of Gibbs J in Philip Morris at 494.

148    Two examples of the use of s 32 to extend the Court’s jurisdiction to matters arising under another federal law appear in the judgments in Le v The Queen (2007) 74 IPR 1; [2007] FCA 1463 and Ly v The Queen (2014) 227 FCR 304; [2014] FCAFC 175, where a single judge and a Full Court of this Court (respectively) held that, when considering an appeal under the Copyright Act 1968 (Cth), this Court could determine a related appeal under the Trade Marks Act 1995 (Cth) using the associated jurisdiction in s 32 of the Federal Court Act.

149    However, the reach of this Court’s associated jurisdiction under s 32 of the Federal Court Act is, in my opinion, immaterial in this application. This brings me to the second of the two problematic aspects of the State’s submission above. That is, its failure to distinguish between this Court’s powers to act and its jurisdiction to decide matters. This is an important distinction in this application because, in my view, the answer to the question whether this Court can make an order in terms of order 4 above involves a consideration of the extent of the Court’s powers to act, not the existence of its jurisdiction.

150    The Court’s jurisdiction is its authority to decide the matters litigated before it: see Jackson v Sterling Industries Ltd (1987) 162 CLR 612 (Jackson) at 627 per Toohey J; Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 at 561 per Toohey J; Abebe v Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14 at [24]–[25] per Gleeson CJ and McHugh J; IMF (Australia) Ltd v Sons of Gwalia Ltd (Administrator Appointed) (2004) 211 ALR 231; [2004] FCA 1390 at [43] per French J; Australian Securities and Investments Commission v Axis International Management Pty Ltd (2009) 178 FCR 485; [2009] FCA 852 at [9] per Gilmour J; and Cement Australia at [15]–[16] per Greenwood J.

151    On the other hand, the Court’s powers are the methods by which it exercises its jurisdiction to decide the matters before it: see Jackson at 630–631 per Toohey J and Cement Australia at [19] per Greenwood J. So, apart from the power under s 21 of the Federal Court Act to make declaratory orders, mentioned above, and the power the subject of this application to make a vexatious proceedings order under s 37AO, the Court is also given a raft of other powers, including those under s 22 relating to finality and avoiding multiplicity, the power in s 37AO(2)(c) which allows the Court to make “any other order [it] considers appropriate in relation to the person”, and the requirements of s 37M(3) that any power must be exercised in the way that best promotes the overarching purpose of civil proceedings. Moreover, they include the general power under s 23: “in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate”. This power has been described as a wide power: see Jackson at 622 per Deane J; SZDCJ v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 212 ALR 581, [2004] FCA 1500 (SZDCJ) at [27] per Jacobson J; and Ho v Grigor (2006) 151 FCR 236; [2006] FCAFC 72 at [54] per French, Stone and Besanko JJ.

152    In Jackson, Toohey J expressed the scope and extent of these general powers under s 23 in the following terms (at 632):

More generally, the section gives to the Federal Court ‘the powers necessary for it to do justice in exercising the judicial power of the Commonwealth in matters over which it has jurisdiction’.

(Footnotes omitted)

153    Gaudron J described the operation of the provision as follows (at 642):

Section 23 does not authorize the granting of relief other than relief entitled in respect of a claim brought forward. However, subject to these considerations, the Court has power to make such orders as the Court thinks appropriate “in relation to matters in which it has jurisdiction”. So long as the orders made in restraint of dealing with assets are confined within these bounds, the Federal Court is possessed of power in relation to matters in which it has jurisdiction to make such orders if the Court thinks it appropriate.

See also Wilson and Dawson JJ at 619 and Brennan J at 620–621.

154    In addition to these express general powers, the Court has an implied power “no less in relation to the jurisdiction vested in it than the inherent power of a court of unlimited, or general, jurisdiction”: see Jackson at 619 per Wilson and Dawson JJ. In this respect, Brennan J adopted the following comments of Bowen CJ in his judgment in the matter before the Full Court (see Jackson at 623–624):

In relation to a statutory court such as the Federal Court it is wise to avoid the use of the words “inherent jurisdiction”. Nevertheless a statutory court which is expressly given certain jurisdiction and powers must exercise that jurisdiction and those powers. In doing so it must be taken to be given by implication whatever jurisdiction or powers may be necessary for the exercise of those expressly conferred. The implied power for example to prevent abuse of its process, is similar to, if not identical with, inherent power.

155    For his part, Toohey J thought the “notion of inherent jurisdiction” was capable of misleading because it most often involved a question of power rather than jurisdiction. In this regard, his Honour adopted the following comments from the decision of the Full Court of the Federal Court in Parsons v Martin (1984) 5 FCR 235 at 241 (see Jackson at 630–631):

In our opinion a court exercising jurisdiction conferred by statute has powers expressly or by implication conferred by the legislation which governs it. This is a matter of statutory construction. We are of opinion also that it has in addition such powers as are incidental and necessary to the exercise of the jurisdiction or the powers so conferred.

In view of the way in which the phrase “inherent jurisdiction” is used in many of the cases, it seems advisable generally to avoid the use of it to refer to this incidental and necessary power of a statutory court.

(Emphasis added)

156    Finally, in SZDCJ, Jacobson J (at [28]) adopted the following observations of Diplock LJ in Hunter v Chief Constable of the West Midlands Police [1928] AC 529 at 536, highlighting a court’s power to prevent an abuse of its processes:

The inherent power which any Court of Justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people.

157    Importantly for the question currently under consideration, the implied incidental powers described above have been held to allow a court to make orders to protect against the “unconscientious exercise of legal rights” and it mattered not where the proceedings were brought. In CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 (CSR) at 392, the High Court (per Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ), speaking about anti-suit injunctions, observed that:

Quite apart from the inherent power of a court to protect its own processes, a court may, in the exercise of the power deriving from the Chancery Court, make orders in restraint of unconscionable conduct or the unconscientious exercise of legal rights. If the bringing of legal proceedings involves unconscionable conduct or the unconscientious exercise of a legal right, an injunction may be granted by a court in the exercise of its equitable jurisdiction in restraint of those proceedings no matter where they are brought.

(Footnotes omitted)

158    Since the order under consideration here has some similarities to an anti-suit injunction, albeit that there is no definite litigation threatened in this case, it is instructive to consider what the High Court said earlier in CSR about the common foundations for that relief and the court’s power to prevent the abuse of its processes (at 391):

The counterpart of a court’s power to prevent its processes being abused is its power to protect the integrity of those processes once set in motion. And in some cases, it is that counterpart power of protection that authorises the grant of anti-suit injunctions. Thus, for example, if “an estate is being administered … or a petition in bankruptcy has been presented … or winding up proceedings have been commenced … an injunction [may be] granted to restrain a person from seeking, by foreign proceedings, to obtain the sole benefit of certain foreign assets”.

The inherent power to grant anti-suit injunctions is not confined to the examples just given. As with other aspects of that power, it is not to be restricted to defined and closed categories. Rather, it is to be exercised when the administration of justice so demands or, in the context of anti-suit injunctions, when necessary for the protection of the court’s own proceedings or processes.

159    And, finally, it should be noted that s 37AN of the Federal Court Act makes it clear that none of these powers is affected by the introduction of the vexatious proceedings provisions in Pt VAAA of the Federal Court Act.

160    Mr Mathews duly exercised this Court’s jurisdiction when he filed his originating application seeking relief under the provisions of the AHRC Act. He exercised it again when he filed his originating application seeking a writ of certiorari under the provisions of the Judiciary Act. The Court’s jurisdiction to determine the first application is contained in Div 2 of Part IIB of the AHRC Act, together with s 39B(1A)(c) of the Judiciary Act. Noting what I have said above (see at [52]) about a writ of certiorari being a form of relief which is ancillary to a writ of prohibition, its jurisdiction to determine the second application is contained in s 39B(1) of the Judiciary Act. Section 39B of the Judiciary Act is mentioned in each instance because it is the lynchpin of the Court’s jurisdiction, in the sense that it defines the matters in ss 75 and 76 of the Constitution in relation to which this Court has jurisdiction. This is reinforced by s 19 of the Federal Court Act.

161    While the proceeding relating to the first application is no longer extant, it having been transferred to the Federal Circuit Court and dismissed by Judge Jarrett’s orders of 23 June 2014, the second proceeding remains on foot in this Court. The fact that I have now decided that this proceeding has no reasonable prospect of success and should therefore be dismissed does not remove the jurisdiction of this Court to deal with any other matters that have arisen during the course of it: see Johnson Tiles at [85] per French J and Beck v Spalla (2005) 142 FCR 555; [2005] FCAFC 82 at [25] per Hill, Finn and Kenny JJ.

162    Once the jurisdiction of this Court was exercised by Mr Mathews, it had at its disposal the wide range of powers to exercise its jurisdiction which are described in some detail above. Of particular importance to this aspect of this application, that includes the powers to prevent the abuse of its processes and the implied incidental power to prevent the unconscientious exercise of legal rights, whether that is occurring in this Court or elsewhere, provided that there is a sufficient connection with the matter in this Court to allow it to exercise that power in the interests of the administration of justice. In the circumstances of this application, I consider these powers are sufficient to allow me to make an order in the form of order 4 at [71] above. The circumstances I have in mind are set out in the paragraph below.

163    First, all of the 13 federal court proceedings that I have found meet the definition of vexatious proceedings in s 37AO and s 37AM were connected with the proceeding that Mr Mathews commenced in this Court under the AHRC Act. In this, I include the two applications that were made in that proceeding after it was transferred to the Federal Circuit Court. Further, the current proceeding is also connected with the AHRC proceeding because it seeks to challenge Judge Jarrett’s dismissal of it. Secondly, the State was, and is, a party to all those proceedings. Thirdly, the present matter of concern common to all those proceedings is Mr Mathews’ abuse of the processes of this Court and others, the details of which are outlined above. This includes the two applications that he made in the Federal Circuit Court in the proceeding that this Court transferred to that Court. Finally, and most importantly, based upon Mr Mathews’ litigious history as outlined above, and given that order 3 above will prevent him instituting proceedings in this Court, unless he is constrained by an order in the form of order 4, I consider it is likely that he will shift his attention to the Federal Circuit Court, which has the same jurisdiction as this Court in many areas, and continue his abuse of process in that Court.

164    I therefore consider that this Court should act to prevent these likely future abuses of the processes of the Federal Circuit Court. I would add that, in the circumstances, this power may well extend to prevent such abuse in courts outside the federal court system, but in this instance, I have not been asked to make such an order.

CONCLUSION

165    For these reasons, there will be orders as follows:

(a)    Mr Mathews is prohibited from instituting any proceedings in the Federal Court of Australia against the State of Queensland, its agencies, statutory bodies and their employees.

(b)    Mr Mathews is prohibited from instituting any proceedings in the Federal Circuit Court of Australia against the State of Queensland, its agencies, statutory bodies and their employees.

(c)    Judgment for the State of Queensland against Mr Mathews in relation to the whole of this proceeding.

(d)    Mr Mathews pay the State of Queensland its costs of and incidental to these applications and to this proceeding.

Associate:    

Dated:    24 December 2015