FEDERAL COURT OF AUSTRALIA

Gill v iiNet Limited [2016] FCA 1273

ORDERS

THE COURT ORDERS THAT:

1.    The application lodged on 2 November 2015 be dismissed.

2.    There be no order as to costs.

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

REASONS FOR JUDGMENT

KENNY J:

Introduction

1    The applicant, Dennis Malcolm Gill, seeks an extension of time in which to seek leave to appeal, and leave to appeal, from interlocutory orders of a single judge of the Court delivered on 7 September 2015. Those orders dismissed a proceeding instituted by Mr Gill on the basis that Mr Gill had failed to comply with an order of the Court and on the basis that Mr Gill had failed to prosecute the proceeding with due diligence.

2    In support of his applications, Mr Gill relied on two affidavits, both affirmed by him on 2 November 2015. One affidavit had 11 annexures. The other affidavit had five annexures and was filed in support of a Notice of a Constitutional Matter. Although no affidavits of service were filed by Mr Gill (see r 8.12(1)(b) of the Federal Court Rules 2011 (Cth) (Rules)), Mr Gill informed the Court at the hearing on 10 February 2016 that he had served the Notice on each of the Attorneys-General. There was no appearance in response. Even if I could not be satisfied that notice of the cause had been given and a reasonable time had elapsed since the giving of the notice in conformity with s 78B of the Judiciary Act 1903 (Cth), I concluded that the Notice in this case did not impose a duty not to proceed, because the asserted constitutional points fell within the class described by French J in Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd [1999] FCA 1151; 95 FCR 292 at [14]. See also Re Finlayson; Ex parte Finlayson (1997) 72 ALJR 73 at 74; Glennan v Commissioner of Taxation [2003] HCA 31; 198 ALR 250 at [14]; Pham v Secretary, Department of Employment and Workplace Relations [2007] FCAFC 179 at [12]; and, more recently, Mowen v Australian Electoral Commission [2016] QCA 152 at [17]; and Re Commissioner of Department of Corrective Services; Ex parte Santos [2016] WASC 139 at [20]-[23].

3    Mr Gill appeared in person at the hearing in this Court. Before the hearing, the respondent, iiNet Limited, had informed the Court that it did not intend to appear at the hearing or make submissions on Mr Gill’s applications. It did not in fact appear at the hearing or make any submissions.

4    For the reasons that follow, I would decline to extend the time in which to seek leave to appeal. It follows that the application lodged on 2 November 2015 will be dismissed.

Procedural background

5    The procedural history is relevant to the orders that Mr Gill desires to challenge and the outcome of his present applications.

6    On 23 October 2014, Mr Gill sought to commence a proceeding in this Court by originating application under the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) pursuant to r 34.163(1) of the Rules. Mr Gill filed that application following his receipt of a Notice of Termination of a complaint by him alleging unlawful discrimination under the Disability Discrimination Act 1992 (Cth). The Notice of Termination was issued on 5 August 2014 under s 46PH(2) of the AHRC Act by a delegate of the President of the Australian Human Rights Commission (AHRC) on the ground that the delegate was satisfied that there was no reasonable prospect of the matter being settled by conciliation.

7    In his original complaint to the AHRC (which was filed on 9 April 2014), Mr Gill stated that the respondent was his internet service provider and that he was complaining because he believed that the respondent discriminated against him on account of his disability. In his complaint, in answer to the question “[w]hat is your disability?”, Mr Gill stated:

Injury to both hips, both shoulders, lumbar, & severe injury to cervical spine & respiratory problems.

8    In his complaint, in answer to the question “[w]hen did the alleged event(s) happen?”, Mr Gill wrote:

I am unable to access 50% of my internet entitlement. I pay for 500 gig peak time, & have a further 500gig entitlement that I am no[t] able to access during the hours 2 – 8 am daily due to my severe disabilities. Iinet claim they only provide a 1-size-fits-all policy saying I can go elsewhere if I don’t like their policy.

Iinet do have a good infrastructure [Telstra is the alternative, in my area it is a substandard service available to all other ISP’s], iinet know what they provide is much better quality service and charge extra for it.

I have been with Neighborhood Cable, bought out by TransAct, bought out by iinet for many years. I have complained about my disability problems many times, however my pain levels have increased considerably since Sept 2013.

I was finally transferred to iinet by TransAct in Nov 2013. Since then I have had access and service problems [currently with TIO, escalated to higher level today].

9    In the same document, in answer to the question, “[w]hat happened?”, Mr Gill replied:

I am unable to sit and access the internet for more than 1 hour, due to severe hip, shoulder and neck pain. I have been warned that if I move my neck the wrong way [no-body seems to know what way that is] I could drop a quadriplegic.

I have extreme sleeping problems where I may only get 4-5 hours actual sleep a night, usually between 6 – 10 am. And odd moments before then. I only have a few seconds before the shoulders & neck become to[o] painful to lay on, if I lay on my back, I have breathing problems.

During day time [peak times under iinet] I can come & go many times during the day.

I am suffering severe ‘pins-n-needles’ numbness & burning in my neck & shoulders while completing this application, mainly due to the damage to my central nervous system.

I have not been able to contact any staff who have any jurisdiction for my problems, most say I & they can do nothing about the plans as that is all they provide.

...

10    In answer to the question, “[h]ow do you think the complaint could be resolved?”, Mr Gill stated:

I believe all ISP’s should be required to provide internet services suitable for most people with disabilities, several already have reasonable unlimited downloads at more reasonable prices than iinet; Telstra’s poor infrastructure means all other ISP’s [other than iinet, because they have their own infrastructure] are not able to provide a reasonable quality in my area. So changing ISP is not an option and iinet know it, so they are not willing to give any consideration to people with disabilities.

I pay for an internet service, I would appreciate full access [working fully] during hours between 9am and 12 midnight. Preferable unlimited and not timed, 24 hours per day.

Iinet admit their prices are higher because their internet service is faster, but they still charge their high rates even though all areas of the service and metering has not worked accurately since I was transferred to iinet. I was not given a choice.

11    Mr Gill augmented some of these matters in documents annexed to his affidavits in this proceeding. In an annexure 2 to one of his affidavits, Mr Gill wrote:

iinet continually refused any consideration of my needs, suffering and disabilities. It was torture for me to use the second 50% of my entitlement. Again I requested the cost differences for different hours of the day [7 days] for iinet to provide the data transfer for my internet connection with them [both download and upload].

...

I am being denied the service plan that is far more suitable for my disabilities. ...

He also sought to explain these matters at the hearing.

12    After Mr Gill filed his originating application in this Court on 23 October 2014, there was a directions hearing on 8 December 2014, at which orders were made referring the matter to a Registrar of the Court for case management and mediation. Registrar Caporale held a case management conference on 13 April 2015, in the course of which the Registrar ordered that, if the matter did not resolve by 15 June 2015, then Mr Gill was to file and serve a statement of claim on or before 4 pm on 29 June 2015.

13    The matter did not resolve by 15 June 2015 and Mr Gill did not file and serve a statement of claim on or before 29 June 2015.

14    The solicitors for the respondent subsequently sent a letter dated 6 July 2015 to Mr Gill by email, noting that the matter remained unresolved and that they had not received his statement of claim. The letter advised Mr Gill that he had failed to comply with the order made on 13 April 2015 by the Registrar. It further stated that “unless the matter is immediately withdrawn, we will seek instructions from our client to have the matter struck out”.

15    On 7 July 2015, Mr Gill sent an email to the Court, copied to the solicitors for the respondent. In this email Mr Gill requested that “this matter be heard under International Law by a judge or judges of international standing to do so”, and attached a number of other documents. The email and the attachments were not in the form of a statement of claim and Mr Gill did not describe them as such at that time.

16    On 10 July 2015, a directions hearing was held before Justice North. Mr Gill appeared in person, and the respondent appeared by its legal representative. At that hearing, his Honour made an order that Mr Gill file and serve a statement of claim by 28 August 2015.

17    On 28 August 2015 Mr Gill sent an email with three attachments to the Chambers of Justice North. The email indicated on its face that it had been copied to the solicitor with carriage of the matter for the respondent, Lucienne Mummé. The primary judge recorded in his reasons for judgment (Gill v iiNet Limited [2015] FCA 1029 at [13]) that this email was not received by the respondent’s solicitor on that date because Mr Gill had used the wrong email address for Ms Mummé, but that the email was later produced to the Court as an exhibit to an affidavit of Ms Mummé.

18    The email dated 28 August 2015 from Mr Gill was addressed “To officers of the court”, with the subject line “Dennis Gill v iiNet VID 628/2015 - statement of claim”. The three attachments were called respectively “Submission”, “Notes on Unconscious transference – general” and “Unconscious transference”. The email and document called “Submission” addressed Mr Gill’s request for “this matter to be heard under International Law by justices with International recognition and authority”, and set out Mr Gill’s argument in support of the request. Amongst other things, Mr Gill asserted that there was no valid Parliament; that the laws of Australia were invalid; and that “the whole judiciary is the Religion of Law; all religions are branches of Satanism”.

19    The document called “Submission” also contained material relating to Mr Gill’s dealings with the respondent, his complaint of discrimination, the nature of his disabilities, his complaint to the AHRC, and what he sought from the respondent and the Court. As to his claim under the Disability Discrimination Act, the applicant stated:

There are many disabilities; some definitely cannot cope or adapt to the normal or cheap version of infrastructure the provider chooses to install or make available.

A service or infrastructure is discriminatory if access is not readily available at all times for everybody – for 8 years iinet services I paid for were not available at times I could access without undue and excessive suffering. Only 50% of the access I paid for was available during 18 hours per the day [8am – 2am]; the other 50% was only available during the remaining 6 hours [2am – 8 am]. This is very close to unreasonable for every member of the community, but it was totally discriminatory for myself.

He added:

iinet should be forced to compensate myself a minimum of $500,000 in addition to providing me with the same high speed Internet connection [may include NBN] for 96 months [including free phone and calls]. If for some reason I am living in an area that does not have the infrastructure for the same high speed Internet then the balance of the 96 months is placed on hold until I move or the service comes to me. If another ISP has a cable service in my area then iinet can make arrangements to pay that company [up to $150per month] for my service, to meet the requirements of this compensation order.

20    The other attachments to the email of 28 August 2015, “Notes on Unconscious transference – general” and “Unconscious transference”, dealt with the subject of “unconscious transference” and stated, amongst other things, that “[u]nconscious transference is the most common and most serious breach of Human Rights”.

21    On 31 August 2015, the solicitors for the respondent sent an email to Mr Gill. In subsequent reasons for judgment (Gill v iiNet Limited [2015] FCA 1029 at [12]), Justice North wrote:

On 31 August 2015, the solicitors for the respondent sent an email to the applicant putting him on notice of the respondent’s intention to apply to have the claim struck out, but offering that the respondent would not pursue any legal costs if the applicant were to discontinue the claim. The letter continued that if the applicant did not discontinue the claim immediately, the respondent would apply to have the claim struck out and reserved its right to seek payment of its costs on an indemnity basis.

22    On 3 September 2015, the respondent filed an interlocutory application seeking various orders, including an order under r 5.23(1)(b) of the Rules that the proceeding be dismissed on the basis that the applicant failed to comply with an order of the Court made on 10 July 2015 which required him to serve a statement of claim by 28 August 2015 and, in the alternative, an order under r 5.23(1)(b) that the proceeding be dismissed on the basis that the applicant failed to prosecute the proceeding with due diligence within the meaning of r 5.22 of the Rules. This application was supported by an affidavit of the respondent’s solicitor, Ms Mummé.

the decision under challenge

23    The respondent’s application was heard on 7 September 2015 and Justice North delivered interlocutory judgment and reasons that day. The respondent appeared by counsel and Mr Gill appeared in person. Having heard the parties, his Honour made orders dismissing the proceeding under r 5.23(1)(b) of the Rules on the basis that Mr Gill had failed to comply with Order 1 of the orders of the Court made on 10 July 2015 (which had required him to serve a statement of claim by 28 August 2015); and on the basis that Mr Gill had failed to prosecute the proceeding with due diligence within the meaning of r 5.22 of the Rules.

24    His Honour’s reasons for judgment set out the background to the respondent’s application and also described the content of the email of 28 August 2015 and its attachments. These reasons concluded at [16]-[18] as follows:

The email from the applicant dated 28 August 2015 is not a statement of claim. To the extent that it challenges the establishment of the legal system in Australia, it is quite irrelevant to any issue before the Court. To the extent that it refers to the original disability discrimination claim, it is not comprehensible.

The applicant has had three opportunities to articulate a claim. The proceeding has been on foot from October 2014 and it is unjust and unfair to expect that the respondent continue to attend the proceedings in the Court for a claim which is not put forward in a way which either conforms to the requirements of the Rules or makes any sense.

The respondent has established that the proceedings should be dismissed, both for the failure of the applicant to comply with the order made on 10 July 2015 to file and serve a statement of claim and because the applicant has failed to prosecute the proceeding with due diligence. Consequently, the proceeding will be dismissed with costs.

application for an extension of time to seek leave to appeal

25    On 2 November 2015, Mr Gill electronically lodged an application for an extension of time in which to file a notice of appeal. He used Form 67. Rule 36.05(1) stipulates that an application for an extension of time to file a notice of appeal must be made in accordance with this form. Also on that day, Mr Gill electronically lodged an affidavit affirmed by him on 2 November 2015 and provided the Court with a draft Notice of Appeal.

26    On 5 November 2015, Mr Gill electronically lodged a “Notice of a Constitutional matter under section 78B of the Judiciary Act 1903” and a second affidavit affirmed by him on 2 November 2015.

27    Orders dismissing a proceeding under r 5.23, such as the orders made in this case on 7 September 2015, are interlocutory, not final, in nature: see Dauguet v Centrelink [2015] FCA 1212 at [53]-[55] per Murphy J. In consequence, Mr Gill has no “as-of-right” appeal against them. This is because an appeal from an interlocutory judgment or order cannot be brought without a grant of leave to do so: see Federal Court of Australia Act 1976 (Cth), s 24(1A).

28    A person seeking leave to appeal from an interlocutory judgment or order must apply within 14 days after the date on which the judgment was pronounced or the order was made unless an extension of time is granted: see r 35.13 of the Rules. The interlocutory orders against which Mr Gill wanted to appeal were made on 7 September 2015 and Mr Gill was therefore out of time when he lodged his application on 2 November 2015. Accordingly, Mr Gill requires an extension of time to seek leave to appeal before the matter of leave to appeal can be considered.

29    An application for an extension of time in which to seek leave to appeal must be made in conformity with Form 118, not Form 67: see r 35.14 of the Rules. To regularise Mr Gill’s application, orders were made on 2 December 2015 that Mr Gill’s application for an extension of time be deemed an application under r 35.14 for an extension of time in which to seek leave to appeal and leave to appeal.

consideration

30    Rule 35.14(1) of the Rules provides that “[a] person who wants to apply for an extension of time to seek leave to appeal must file an application ...”. An extension may be granted under r 35.14 of the Rules in accordance with the accepted principles: see s 37M of the Federal Court of Australia Act; Gallo v Dawson [1990] HCA 30; 93 ALR 479 at 480-481 and Mentink v Minister for Home Affairs [2013] FCAFC 113 at [33]-[38]. Whilst the exercise of the power is discretionary, it must be exercised judicially.

31    The result of an application for an extension of time in which to apply for leave to appeal depends on the particular circumstances of the case: see, for example, Mentink at [33]-[38]. Relevant considerations include: (1) the merits of the proposed application for leave to appeal to justify the extension of time; (2) whether there is an adequate explanation for the delay; and (3) any undue prejudice to a respondent if the Court were to extend time. See, for example, Minus v Selth [2016] FCA 834 at [14]; Deighton v Telstra Corporation Ltd [1997] FCA 1568; Shaw v MAB Corporation Pty Ltd [2014] FCA 62; 220 FCR 425 at [32]-[33]; Wang v Botany View Hotel [2014] FCA 730 at [13]; and Budd v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs  [2009] FCA 1138 at [7].

32    As to the prospects of obtaining leave to appeal, it should be borne in mind that, before leave to appeal will be given, an applicant for leave must show that, in all the circumstances, the relevant interlocutory order or judgment was attended with sufficient doubt to warrant its being reconsidered by an appellate court and that substantial injustice would result if leave were refused, supposing the decision to be wrong: see Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 399; and Re CSR Ltd [2010] FCAFC 34; 183 FCR 358 at [5]. Plainly enough, the factors relevant to whether to extend time in which to apply for leave to appeal overlap with the factors relevant to whether leave to appeal should be granted. Lindgren J observed in Sharman License Holdings Ltd v Universal Music Aust Pty Ltd [2005] FCA 802 at [20], “[i]n practice, the debate and treatment of the ‘arguable error’ question on an application for an extension of time, will be no different from what the debate and treatment of it would be on the application for leave to appeal itself”.

33    Although the initial question is here is whether an extension of time should be granted, the reasons that lead me to refuse the application for an extension of time would, so far as they relate to the first and second limbs of the test for leave to appeal, also lead me to dismiss Mr Gill’s application in so far as it seeks leave to appeal.

34    Little turns in this case on issues of delay and undue prejudice to the respondent if an extension of time were granted. Mr Gill was ultimately about 6 weeks late in filing an application for an extension of time. There is, however, some indication in the materials that he had in fact attempted to institute an appeal against the orders of 7 September 2015 earlier, in September and October 2015, but the Registry had rejected his documents: see [39] below. Bearing in mind Mr Gill’s disability, personal circumstances and self-representation, I am satisfied that there was an acceptable explanation for the delay. I indicated as much to Mr Gill at the hearing on 10 February 2016. The respondent chose not to appear at the hearing or to make submissions; and there is no suggestion that it would suffer any undue prejudice if the Court were to extend the time in which to seek leave to appeal.

35    The outcome of Mr Gill’s extension of time application turns on the merits of the proposed application for leave to appeal.

36    Under the heading “Grounds of appeal” Mr Gill’s draft Notice of Appeal sets out the following 16 numbered paragraphs:

1.    The Court refused to have this matter heard under the superior authority of International Law when requested.

2.    The court refused to hear legal argument that did not quote court rules and other legislation, affecting this matter.

3.    Order no 1 of 7 Sept 2015 states that the applicant did not comply with Order 1 of the orders of the court made on 10 July 2015:

a.    Rule 8.05(1)(a) states “in accordance with Form 17” – the respondent was aware of the complaint from the proceedings under the AHRC – copy was previously attached to the original form 122 application – the other requirements of form 17 were included in the original application or the “statement of claim” submitted by the applicant. The officers of the court discriminated against the applicant - driven by their own prejudice when they withheld the statement from the court. The court has condoned this point by repeating it as part of the reasons for the order.

4.    Order no 2 of 7 Sept 2015 states that the applicant “failed to prosecute the proceeding with due diligence”. Due diligence sounds subjective and limited to the application and definition of the respondents legal representatives – which the court appears to have accepted without merit, simply based on the presentation of the respondent.

a.    R 5.22(d) does not provide a definition – one legal definition states: “reasonable steps taken by a person to avoid committing a tort or offence” – I have heard nothing that an offence was committed. It appears the respondent is simply seeking to manipulate the court by accepting its application blindly. In the reasons for judgment No 2 it is stated the order was made because the respondent was seeking it. The court has condoned this point by repeating it as part of the reasons for the order.

b.    The court had the option and flexibility under r1.34 in consideration of the self represented applicant to waver this narrow interpretation of the rules. The court has dispensed with Human Rights itself in this Human Rights matter.

5.    Reasons for judgment No 4 - the intension of the respondent to manipulate the court is again evident – it is reasonable to assume the representative for the respondent would know of the r 1.34 option of the court, but has encouraged the court to take the harsh, legalistic approach. I cannot recall the date lodgement was due, but there were 4 email contacts to do with eLodgment problems over 3 days. It appears the respondent will use any tactics they can to avoid facing up to their Human Rights failures and/or discrimination. The court has condoned this point by repeating it as part of the reasons for judgment.

6.    Reasons for judgment No 8 & 10 – The submission was lodged on 7th July 2015 – is this the criminal offence the respondent is referring to in the criticism of due diligence. It contained the explanation for the lateness – the document was extensive and there is no way I could have produced it in one day after the communication from Lucienne Mumme on 6th July. It is disappointing the respondent is using my disabilities against me – is this criminal discrimination. The court has condoned this point by repeating it as part of the reasons for judgment.

7.    Reasons for judgment No 9 – The communication referred to – I considered an attempt to manipulate the court and myself as a disabled person. iinet was doing the same thing by failing to provide the Internet service in a form suitable for disabled persons like myself. The court has condoned this point by repeating it as part of the reasons for judgment.

8.    Reasons for judgment No 10 & 13 – The use of the insults “bizarre” and “not comprehensible” to describe the writings of a disabled person is in my opinion criminal discrimination. The prejudice that is responsible for nearly all discrimination and breaches of Human Rights is evident here, awareness of this fact was included in the bizarre comments about unconscious transference. The court has condoned this point by repeating it as part of the reasons for judgment.

9.    Reasons for judgment No 11 – The respondent is continuing the prejudice based on their prejudice that the statement of claim produced by the applicant was not, so they claim a valid statement was never filed or served. The court failed to file the document emailed to Tarwin Shiel and Lucienne Mumme [the email to L Mumme failed because the address I took from a court email was incorrect] on 28th Aug ’15. The court has condoned this false allegation by repeating it as part of the reasons for judgment.

10.    Reasons for judgment No 13 – What is “not comprehensible” about requesting the matter be heard under the superior law - International Law or challenging the validity of the Australian legal system and seeking compensation if the orders and statements are invalid? I though it is my basic Human Right to challenge the system if the facts appear to make it invalid. The court has condoned the accusation of “not comprehensible” by repeating it as part of the reasons for judgment.

11.    Reasons for judgment No 14 – The reasons for judgment is belittling itself by including these statements in this derogatory manner. Yes they are the statements of the applicant, but they are being mocked and ridiculed without having heard and considered the facts they are based upon. Again prejudice and ignorance prevail.

12.    Reasons for judgment No 15 – Again prejudice based mockery, the only way the court would start to hear of the Human Rights abuse and discrimination by iinet was for the applicant to submit to the “system” then request the matter be heard under International Law – which the applicant does recognize. The court has condoned this point by repeating it as part of the reasons for judgment.

13.    Reasons for judgment No 16 – Is a repeat of previous statements – this was part of the criticism of the applicant then the respondent does the same thing. The court has condoned this repetition by repeating it as part of the reasons for judgment.

14.    Reasons for judgment No 17 – I refer to point 5 above. I also consider it unfair for the wealthy conglomerate of companies of Snowy Hydro [of which iinet is just one of the many subsidiary companies] to discriminate against and deny the Human Rights of several customers as well as keep secret the faulty metering for thousands of customers and charge them for extra data from fraud. The court has condoned this accusation re fairness by repeating it as part of the reasons for judgment.

15.    The court yet again condones the statements of the respondent by summarizing the respondent’s statements in conclusion of the reasons for judgment. The court appears to have used discretion without due process as to the merit of the respondent’s statements and may have caused injustices in making its rulings on 7th September 2015; I refer to the decisions of House v The King 1936.

16.    I repeat the request for full costs to be revealed. A request was passed to the respondent [in the court room during the 1st or 2nd mention] requesting full details and wholesale download charges for iinet at all times of the day and night? Plus charges and costs for all times of the day and night for uploads? The costs in respect to the infrastructure owned by iinet? The costs in respect to the infrastructure not owned by iinet? If costs vary significantly between fibre as against other broadband service – provide clear details. The charges, if excessive may make compensation more reasonable and acceptable.

The above references to “reasons for judgment No []” are references to the equivalent paragraph number in the reasons for judgment of Justice North.

37    Under the heading “Orders sought”, there appeared the following:

1.    Dismiss the orders made on 7th Sept 2015 in the AFC.

2.    Dismiss the comments regarding costs on 7th Sept 2015 in the AFC.

3.    Reinstall the Human Rights and discrimination matter before the court under a different judge.

4.    Approve the lodging of a form 18 application to be aligned with the current matter.

38    In explaining grounds 3, 4, 6 and 9 of his draft notice of appeal at the hearing, Mr Gill indicated he had twice sought to file a statement of claim, first by an email dated 7 July 2015 and its attachments addressed to the “Vic Federal Court Registry E- mail” and copied to the respondent’s solicitor, Ms Mummé (identified as “LM-8” to an affidavit of Ms Mummé filed on 3 September 2015) and second, by the email dated 28 August 2015 addressed “To officers of the court”, with the subject line “Dennis Gill v iiNet VID 628/2015 - statement of claim” (referred to in paragraph [18] above). It was not clear to me whether it was Mr Gill’s submission that the statement of claim was constituted in each instance by the email, or by the email and attachments. I have considered his submission on both bases. The gravamen of Mr Gill’s submission was, therefore, that, he had in fact filed, or sought to file, a statement of claim as he had been ordered to do and that Justice North had proceeded on a mistaken basis in holding to the contrary. There is a further suggestion in paragraph 3(a) of his draft notice of appeal that the provision of a written form of Mr Gill’s complaint to the AHRC to the respondent amounted to partial compliance with the requirements regarding a statement of claim. Mr Gill also complained that officers of the Court discriminated against him “when they withheld” the emails dated 7 July 2015 and 28 August 2015, with their attachments, “from the Court” and failed to permit the documents to be filed as a statement of claim.

39    Mr Gill’s contention that the emails and their attachments constituted or should have been treated as constituting a statement of claim for the purpose of the orders of 10 July 2015 must be rejected. The documents clearly did not comply with the requirements for a pleading, such as a statement of claim, in Part 16 of the Rules. The proposition that officers of the Court discriminated against Mr Gill in “withholding” them from the Court or failing to permit him to file any, some or all as a statement of claim is simply not tenable. Justice North held that the email dated 28 August 2015 (see [18] above) was not a statement of claim. His Honour was clearly correct. Mr Gill had failed to comply with Order 1 of the orders made on 10 July 2015.

40    I observe that Justice North also found that the proceeding had been on foot from October 2014 and that Mr Gill had had “three opportunities to articulate a claim”. This too was correct. Mr Gill was given opportunities to formulate his claim by the order of the Registrar on 13 April 2015, by the order of Justice North of 10 July 2015 and before his Honour on 7 September 2015. Mr Gill had a further opportunity at the hearing on 10 February 2016.

41    Mr Gill’s second broad submission was that Justice North was wrong to have refused to hear the matter under “the superior authority of International Law”, as Mr Gill requested. This contention is reflected in grounds 1, 10, and 12 of the draft notice of appeal. At the hearing, Mr Gill claimed that “all Australian law ... is invalid”; “that Australia does not have its own valid legislation of human rights”; and that he therefore sought to have his matter heard under international law. Mr Gill’s argument that international law was to be applied to this proceeding was based on the following propositions:

    all Australian laws and rules are based on the unlawful use of colonial law, which is a breach of international law;

    the Commonwealth of Australia Constitution Act was never valid law in the United Kingdom, Australia or any other country because it was never given valid assent by Queen Victoria. As a consequence, “no law of Australia is valid” and no Australian court has legal authority;

    Australia became “an independent, self-governing nation no longer subject to the laws and control of the Parliament of the United Kingdom” from April 1919, and was recognised as an independent sovereign nation by the international community on 28 June 1919 following the signing of the Treaty of Versailles;

    no legislation passed by the Parliaments of the United Kingdom or the Commonwealth of Australia after 1919 is applicable in Australia;

    no monarch of the United Kingdom after Queen Victoria completed a letters patent for any Governor-General appointed for Australia, with the consequence that no Governor-General had authority to assent to any bill in Australia. The Judiciary Act 1903 (Cth) is invalid; as are the Federal Court Rules 2011 (Cth); and

    the Universal Declaration of Human Rights is the only valid human rights legislation in Australia.

42    At the hearing of this matter on 10 February 2016 I sought to explain to Mr Gill in various ways that none of these submissions were tenable in this Court. However interesting his arguments were, they could not possibly succeed in this Court. It is unnecessary to repeat these explanations.

43    Towards the conclusion of the hearing, Mr Gill further submitted that “the decisions throughout Australian courts are unjust, fraud[ulent] and evil” and that the system of law around the world is prejudiced against Mr Gill, as “no witness … can give accurate testimony because the human brain does not allow anybody to record information, recall information”. According to Mr Gill, this was because of “unconscious transference”. The preferable alternative to the current system, in Mr Gill’s submission, would be to “leave it for the ultimate spirit, who you call God, to do the punishment.” These are not submissions that lend themselves to determination according to law in this Court and they have no prospects of success.

44    Mr Gill also complained about “the attitude to the Rules [of the Court], that they’re the be all and end all”, and “the attitude of iiNet ... that I don’t matter; my disabilities don’t matter”. This kind of submission is perhaps reflected in grounds 2, 4 and 5 the draft grounds of appeal. It adds little, however, to Mr Gill’s primary submission that he had in fact sought to file a statement of claim and that Justice North erred by finding that he had not filed a statement of claim as ordered.

45    At the hearing, Mr Gill did not address all grounds set down in his proposed notice of appeal. My examination of these grounds does not disclose any tenable basis for an appeal.

46    Towards the conclusion of the hearing on 10 February 2016, Mr Gill provided the Court with further lengthy documents. The documents raise similar arguments to those that he had previously advanced. They particularly elaborated on Mr Gill’s submissions about the alleged invalidity of Australian laws and courts.

47    Some days after the hearing, Mr Gill sent an email to a member of the Court’s staff, attaching various lengthy documents, including material “in response to the difference between the legal system and International law”, some news reports, a document relating to Sharia law, and other documents relating to “unconscious transference”. None of these documents persuades me to different conclusions from those set out above.

48    A further email dated 7 October 2016 was received by the Victorian Registry of the Court and subsequently forwarded to my associate. This email requested that, preferably, I “continue and extend the present application”. It asked, amongst other things, that, if possible, “this matter of validity of Australian law be heard by a minimum of 9 justices”. I would emphasise three things. First, I do not doubt that Mr Gill’s disability makes it hard, if not impossible, for him to do numerous things that people without his disability may comfortably accomplish; and the Disability Discrimination Act is intended to provide him with protection against discrimination on account of his disability. Second, I do not doubt the sincerity of the beliefs and concerns that he outlined in this Court. Third, these beliefs and concerns are, for the most part, not cognisable in the Federal Court; and in the present proceeding Mr Gill has been unable to identify a cognisable a cause of action under the Disability Discrimination Act or another law of the Commonwealth that this Court might hear and determine.

49    The result is that Mr Gill has not shown any arguable appealable error in the orders made on 7 September 2015. Putting Mr Gill’s submissions to one side, bearing in mind that the orders were made in exercise of discretion, I can discern no arguable appealable error in their making: see House v King [1936] HCA 40; 55 CLR 499 at 504-505. It was open to his Honour to conclude, in the circumstances disclosed to the Court, that Mr Gill was “in default” in accordance with r 5.22 of the Rules and that he should exercise the discretion under r 5.23 to dismiss the proceeding.

disposition

50    For the reasons stated, I am of the opinion that time for filing an application for leave to appeal should not be enlarged. The continuation of the proceeding would be an exercise in futility. I would therefore dismiss the application lodged on 2 November 2015. There will be no order for costs. As already stated, the respondent did not appear at the hearing or make submissions on the application.

Associate:

Dated:    28 October 2016