FEDERAL COURT OF AUSTRALIA

Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473

ORDERS

THE COURT ORDERS THAT:

1.    The whole of the application for judicial review is dismissed pursuant to rule 26.01 of the Federal Court Rules 2011 (Cth).

2.    The applicant is to pay the costs of the second respondent as agreed or assessed.

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

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

1    The applicant, Mr Miroslaw Przyblowski, has applied for judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) of a decision given on 12 May 2017 by the first respondent, the Australian Human Rights Commission (Commission), not to enquire into complaints made by the applicant.

2    The Commission was originally the sole respondent. By an order made on 13 September 2017, the Attorney-General of the Commonwealth (Attorney-General) was granted leave to be joined as a party under s 18 of the ADJR Act. As the Attorney-General explained in his submissions dated 30 November 2017, he is appearing as the contradictor in this proceeding, given that, upon the Attorney-General’s joinder, the Commission appropriately submitted to such orders as the Court may make save as to costs: see R v Australian Broadcasting Tribunal; Ex Parte Hardiman (1980) 144 CLR 13 (Hardiman) at 35-36 (Gibbs, Stephen, Mason, Aickin and Wilson JJ).

3    By an application dated 29 September 2017, the Attorney-General seeks an order for summary judgment pursuant to r 26.01 of the Federal Court Rules 2011 (Cth) (FCR) on the grounds that:

(1)    the applicant has no reasonable prospect of successfully prosecuting the proceeding (r 26.01(a));

(2)    no reasonable cause of action is disclosed (r 26.01(c)); or

(3)    the proceeding is an abuse of process of the Court (r 26.01(d)).

4    The Attorney-General also seeks orders that the applicant pay his costs of and incidental to the interlocutory application and the proceedings generally.

5    For the reasons set out below, this is a clear case in which the proceedings should be dismissed summarily on the ground that they have no reasonable prospects of success.

2.    PRINCIPLES GOVERNING SUMMARY DISMISSAL

6    The test for summary dismissal laid down by r 26.01(a) of the FCR (no reasonable prospects of success) is intended to be the same test for summary dismissal as that in s 31A of the Federal Court of Australia Act 1976 (Cth) (FCA Act): Shammas v Canberra Institute of Technology [2014] FCA 71 at [51] (Foster J). Section 31A of the FCA Act, which commenced on 1 December 2005 (and therefore before the FCR were made), provides that:

(3)    For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:

(a)      hopeless; or

(b)     bound to fail;

for it to have no reasonable prospect of success.

7    The principles governing the application of s 31A are well established and can be summarised as follows:

(1)    The respondent as the moving party bears the onus of persuading the Court that the application has no reasonable prospects of succeeding: Australian Securities and Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256 (Cassimatis) at 271 [45] (Reeves J).

(2)    With respect to the scope of s 31A, French CJ and Gummow J explained in Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 (Spencer) at [22], that the section:

… will apply to the case in which the pleadings disclose no reasonable cause of action and their deficiency is incurable. It will include the case in which there is unanswerable or unanswered evidence of a fact fatal to the pleaded case and any case which might be propounded by permissible amendment. It will include the class of case in the long-standing category of cases which are “frivolous or vexatious or an abuse of process”. The application of s 31A is not, in terms, limited to those categories.

(3)    Section 31A sets a lower threshold than the previous test for summary dismissal which required that the claim be “manifestly groundless” or “hopeless”: Spencer at [52]-[53] (Hayne, Crennan, Kiefel and Bell JJ). Nonetheless, the discretion must still be exercised with caution (Spencer at [24] (French CJ and Gummow J) and [60] (Hayne, Crennan, Kiefel and Bell JJ)).

(4)    An assessment of whether a proceeding has no reasonable prospects of success for the purposes of s 31A involves the making of value judgments in the absence of a full and complete factual matrix and argument, with the result that the provision vests a discretion in the Court: Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117; (2009) 178 FCR 401 (Kowalski) at [28] (the Court).

(5)    Consistently with this, Reeves J in Cassimatis explained at [46] that:

…the determination of a summary dismissal application therefore does not require a mini-trial based upon incomplete evidence to decide whether the proceedings are likely to succeed or fail at trial. Instead, it requires a critical examination of the available materials to determine whether there is a real question of law or fact that should be decided at trial. Each application for summary judgment or summary dismissal has to be determined according to its particular circumstances. What is required is a practical judgment of the case at hand. The relevant circumstances will partly depend upon the stage which the proceedings have reached. Among other things, this will affect the materials available to the Court considering the application, for example, whether pleadings have been exchanged, or discovery of documents has occurred.

(6)    To illustrate the application of these principles, Reeves J explained at [47] that the moving party is more likely to succeed if she or he demonstrates that the applicant’s success relies on a question of fact that is fanciful, trifling, implausible, improbable, tenuous, or contradicted by all the available documents or evidence. Conversely, his Honour explained that, as a general principle, such an application is unlikely to succeed where, on a critical examination of all the available materials, the Court is satisfied that there appears to be a real question of fact to be determined. The latter, in his Honour’s view, is more likely to be the case where the available materials include pleadings that raise factual disputes that can truly be described as significant, substantial, plausible or weighty.

3.    EVIDENCE AND PROCEDURAL MATTERS

8    In support of the interlocutory application, the Attorney-General relied upon the following evidence:

(1)    the affidavit of Jonathon Charles Hutton, a solicitor employed by the Australian Government Solicitor, affirmed on 20 September 2017 and filed in support of the interlocutory application;

(2)    paragraphs 1-9 and 23 and 24 inclusive of the affidavit of Jonathon Charles Hutton affirmed on 25 October 2017; and

(3)    the affidavit of Lara Jane Alexandra Renton, a lawyer employed by the Commission, affirmed on 22 November 2017.

9    The affidavit of Ms Renton was filed on behalf of the Commission in response to an order made on 2 November 2017 at the request of the applicant for the filing of documents by the Commission.

10    Mr Przybylowski relied upon all of his affidavits filed in the proceeding. These were read subject to relevance. In addition, at the hearing on 31 January 2018 orders were made permitting Mr Przybylowski to file and serve such other documents as were in his possession and on which he wished to rely on the basis that these would be received in evidence subject to relevance, as well as to file (but not serve) two additional notices under s 78B of the Judiciary Act 1903 (Cth) (s 78B notices) which he had sought to file earlier. Leave was also given to the parties to make submissions after the hearing directed towards addressing the relevance of the further evidence and the s 78B notices. Subsequently, Mr Przybylowski filed a further affidavit which was either sworn or affirmed (it being unclear from the document) on 4 February 2018 and three further s 78B notices. These s 78B notices appear largely to relate to the allegations of non-compliance with international obligations by Australia referred to in the applicant’s 4 February 2018 affidavit.

4.    THE DELEGATE’S DECISION

11    On 12 May 2017, a delegate of the President of the Commission (delegate) decided not to continue to enquire into four separate complaints made by the applicant under ss 20(2)(c)(ii), (iv) and (v) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) (delegate’s decision).

12    Section 20(2) of the AHRC Act relevantly provides that:

(2)    The Commission may decide not to inquire into an act or practice, or, if the Commission has commenced to inquire into an act or practice, may decide not to continue to inquire into the act or practice, if:

…

(c)    in a case where a complaint has been made to the Commission in relation to the act or practice:

…

(ii)    the Commission is of the opinion that the complaint is frivolous, vexatious, misconceived or lacking in substance; or

…

(iv)    the Commission is of the opinion that some other more appropriate remedy in relation to the subject matter of the complaint is reasonably available to the person aggrieved by the act or practice; or

(v)    where the subject matter of the complaint has already been dealt with by the Commission or by another statutory authority—the Commission is of the opinion that the subject matter of the complaint has been adequately dealt with; or

…

13    The applicant does not specifically challenge the dismissal of one complaint by the delegate which concerned allegations against the Australian Commission for Law Enforcement Integrity. The three remaining complaints considered by the Commission are summarised below. I do not understand these facts to be in dispute.

14    The first complaint – the decisions of the Department of Human Services (DHS) regarding spousal support: The applicant and his wife were married in Poland and divorced in Australia in 2002. In September 2006, a Polish Court made an order requiring the applicant to pay his wife spousal support (2006 Spousal Order). The DHS registered the 2006 Spousal Order on 10 January 2014 following requests by the Polish authorities for the 2006 Spousal Order to be registered and enforced. On 5 June 2014, the DHS disallowed an objection to its decision to register the 2006 Spousal Order. On 27 August 2014, the Social Security Appeals Tribunal (SSAT) affirmed the decision to disallow the objection. An appeal against the SSAT decision to the Federal Circuit Court of Australia (FCC) was dismissed as incompetent by the FCC in mid-2015.

15    The second complaint – the decisions of the DHS regarding child support: – In April 2011, a Polish Court made an order increasing the amount of child support payable by the applicant for his child. The Polish authorities made a request in October 2015 that the DHS seek additional child support payments from the applicant. The DHS decided to register that request on 3 May 2016 and an objection to that decision was disallowed by the DHS on 13 January 2017. On 11 and 13 November 2014, the applicant requested that the DHS make a child support assessment for his daughter. The DHS wrote to the applicant on 17 November 2014 advising that they could not make such an assessment. With respect to this complaint, the delegate found that a more appropriate remedy was available to the applicant, being review of the DHS decision by a tribunal, the FCC (upon the grant of appropriate extensions of time), or the Commonwealth Ombudsman.

16    The third complaint – allegations against the Family Court of Australia: – In mid-2016, the applicant made a complaint to the Family Court in relation to the earlier FCC judgment. The applicant claimed that this complaint was not responded to by the Family Court. The delegate found this complaint was lacking in substance and/or misconceived for two reasons: first, it was unclear how a failure to respond to a complaint could constitute a breach of human rights; and secondly, judges and judicial officers are protected by judicial immunity and therefore against claims of unlawful discrimination.

5.    NO CONSTITUTIONAL ISSUE ARISES

17    The applicant contends that his application raises a number of matters arising under the Commonwealth Constitution (Constitution) and, as such, filed two s 78B notices on 27 November 2017 and on 7 December 2017. The applicant was also granted leave at the hearing of the summary dismissal application to file (but not serve) two further s 78B notices. Section 78B relevantly provides that:

(1)  Where a cause pending in a federal court … involves a matter arising under the Constitution or involving its interpretation, it is the duty of the court not to proceed in the cause unless and until the court is satisfied that notice of the cause, specifying the nature of the matter has been given to the Attorneys-General of the Commonwealth and of the States, and a reasonable time has elapsed since the giving of the notice for consideration by the Attorneys-General, of the question of intervention in the proceedings or removal of the cause to the High Court.

(emphasis added)

18    It follows, by virtue of s 78B, that if a constitutional issue did arise, it would require the service of the s 78B notices on the State, Territory, and Commonwealth Attorneys-General, and this matter could not proceed unless and until that had occurred and a reasonable time had elapsed thereafter.

19    Mr Przybylowski affirmed an affidavit on 15 January 2018 in which he alleged that he “delivered all Court documents to the parties” filed since 5 October 2017. No State or Territory Attorney-General is a party to this matter, and therefore this affidavit does not appear to be intended as proof of service of the s 78B notices upon them. In any event, even if Mr Przybylowski mistakenly referred to the State and Territory Attorneys-General as parties, he did not depose as to the date on which the s 78B notices were served, the means by which they were served, or any responses to the notices received from the Attorneys-General. In those circumstances, it is not possible for me to be satisfied either that the s 78B notices were served or that a reasonable time has elapsed since their service.

20    The Attorney-General submits however, that this does not prevent the Court from hearing and determining the summary dismissal application because the obligation under s 78B arises only where the constitutional point is at least arguable and therefore arises for determination in the matter. As Kerr J held in Luck v Secretary, Department of Human Services [2017] FCA 540:

31    Whether a proceeding involves a matter arising under the Constitution or involving its interpretation is a question for the Court to determine: Sagacious Legal Pty Ltd v Wesfarmers General Insurance Ltd (No 3) (2010) 184 FCR 516 (Sagacious) at [12]-[14]. Section 78B has been held not to be engaged unless the constitutional point is at least arguable and its determination is required. As French J (as he then was) held in Australian Competition & Consumer Commission v C G Berbatis Holdings Pty Ltd (1999) 95 FCR 292 (Berbatis Holdings) at [13], that [sic] “a matter should ‘really and substantially arise under the Constitution’ before it attracts the operation of s 78B”. Whether that is the case in the instance of the Applicant’s request for my recusal therefore requires legal analysis to be applied to the relevant facts.

32    A “cause does not “involve” a matter arising under the Constitution or involving its interpretation merely because someone asserts that it does”: Re Finlayson; Ex parte Finlayson (1997) 72 ALJR 73 (Finlayson) per Toohey J, at 74. While I have no reason to doubt that Ms Luck holds a genuine belief that her application cannot be decided without the High Court addressing and determining the constitutional issues she contends have arisen, her belief is not sufficient to make it so: Green v Jones [1979] 2 NSWLR 812 at 817-18, Sagacious per Rares J at [13].

(emphasis omitted)

21    In this case, the Attorney-General submits that there is no reasonably arguable constitutional issue arising on the face of the application, and that the determination of any constitutional point is not necessary to dispose of this hearing. I agree.

22    The first s 78B notice relates to divorce orders and appears to raise a constitutional point by reference to s 51(xxii) of the Constitution. Section 51(xxii) confers power on the Commonwealth Parliament to make laws relevantly with respect to “divorce”. However, no point is raised in respect of that provision in this matter, in the pleadings before this Court, in the complaints before the Commission, or otherwise. It is not suggested that there is any law of the Parliament enacted purportedly pursuant to s 51(xxii) which is not properly characterised as a law with respect to divorce and is, therefore, invalid. Nor is it apparent how any such claim could bear upon the subject matter of the proceeding, being an application for judicial review under the ADJR Act against the Commission’s decision to not inquire any further into the applicant’s complaints.

23    The second s 78B notice alleged that various bodies have not complied with what the applicant described as the “Hague Convention on the Recognition of Divorce and Legal Separation”. It is alleged that ratification of this Convention gives rise to an issue under s 51(xxix) of the Constitution (the external affairs power). Again no such allegation is made in the pleadings and it appears irrelevant to the subject matter of the proceeding, having among other things not been raised in any of Mr Przybylowski’s complaints to the Commission. Similar allegations regarding non-compliance with international obligations are made in the s 78B notices filed following the hearing. In any event, international conventions, including those to which Australia is a party, do not give rise to any rights, obligations or liabilities enforceable by the Australian domestic legal system, unless enacted as a law of the Commonwealth Parliament: Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 (Teoh) at 286-287 (Mason CJ and Deane J). As such the s 78B notice does not identify any arguable issue under s 51(xxix) or involving its construction.

24    I also note that Mr Przybylowski appears to rely upon the s 78B notices as if they were separate pleadings. However, s 78B notices can do no more than draw to the attention of the Attorneys-General constitutional issues which are otherwise raised in the proceeding, and therefore issues which should be apparent from the originating application and points of claim. As such, I have had regard to the s 78B notices in relation to the determination of the summary dismissal application only in considering whether, in the exercise of discretion, the proceeding should be summarily dismissed or whether Mr Przybylowski should be afforded an opportunity to attempt to re-plead his case.

6.    THE APPLICATION FOR JUDICIAL REVIEW

25    By his originating application filed on 19 June 2017, Mr Przybylowski seeks the following orders:

(1)    dismiss AHRC decision; and

(2)    refer the matter back to the Commission for further consideration.

26    The grounds are apparently those set out in the document entitled “Additional Page ‘A’” attached to the application, including that:

The Delegate of the AHRC President made both a legal error and did not exercise her powers correctly.

(Errors in the original)

27    Mr Przybylowski then complains that:

The Delegate by leaving the Registrations under the no existing Polish Court’s Orders “untouched “ gives benefit for another person [his former wife] which is o crime offence properly described with including Australia Report on the Conference of the States Parties to the United Nations on the Convention against Corruption.

(errors in the original)

28    After referring to offences under the “Criminal Code Act (1995)” related to offences of dishonesty, Mr Przybylowski further alleges that no immunity can exist for prosecution for corruption cases, that Australia has remedies in place to address corruption, and that the delegate “consciously breached Australia Report do the United Nations. Particularly when the Delegate is aware of the Polish Judge… Legal Expertise confirms that the DHS has no orders neither for the spousal maintenance effective from 7 November 2013 nor for the child support arrears made by the Regional Court…” (errors in the original). As such, the allegations are incomprehensible aside from the broad and opaque assertion of legal error.

29    Mr Przybylowski also filed an affidavit on 26 July 2017 to which is annexed a document apparently intended to comply with the court orders made on 12 July 2017 for the applicant to file points of claim (points of claim). Those points of claim identify the following alleged errors made by the Commission:

(a)    acting on fraudulent view, that the matter has already been adequately dealt by [Federal Circuit Court of Australia]

(b)    no reason not to act about [his daughter] Under Age Discrimination Act

(c)    violated its obligation of independence and impartiality claims “judicial immunity”

(d)    exceeds incorrectly power on the Ombudsman

(e)    amounted to manifest error and denial of justice by all consideration

(errors in the original)

30    The points of claim allege without any specificity a breach of natural justice, errors of law, and that the Commission’s decision was induced or affected by fraud or was otherwise contrary to law. In addition, in the points of claim the applicant seeks a writ of mandamus “ordering the AHRC to attempt to conciliate my complaint and report to parliament without any delays”.

7.    CONSIDERATION

31    For the reasons set out below, I consider that this is a clear case in which the proceeding should be dismissed summarily on the grounds identified by the Attorney-General.

7.1    No reasonable prospects of success established

32    First, at a general level, the applicant’s pleadings consist at their highest of baseless, unparticularised claims of legal error of various kinds, and bare claims for judicial review. Where the applicant includes further detail allegedly of his claims, as explained above, that detail is incomprehensible. As such the pleadings fail to disclose a reasonable cause of action and there is no reasonable prospect of the applicant successfully prosecuting the proceeding. Indeed, even if the test remained the more stringent test which preceded the enactment of s 31A of the FCA Act, I would find that the proceedings were hopeless.

33    Secondly and more specifically, the claim that the Commission was “acting on fraudulent view” is a claim of the utmost seriousness and as such must be clearly and distinctly pleaded: see r 16.42 of the FCR; see also e.g. SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189 at [15] (the Court). In the absence of any pleadings of material fact, let alone particulars of the claim or evidence to support the allegation of fraud, the pleading is an abuse of process and cannot be said to have any reasonable prospects of success.

34    Thirdly, no issues relating to the Age Discrimination Act 2004 (Cth) appear to have been raised with the Commission. Therefore any failure by the Commission to deal with those issues cannot now give rise to reviewable error.

35    Fourthly, the claim that the delegate “violated its obligations of independence and impartiality” in considering claims of judicial immunity is unarguable. It was plainly open to the delegate to decide not to enquire into complaints against judicial officers on the ground that judges and judicial officers, when hearing and determining cases are afforded judicial immunity and thereby protected from civil suits, including claims of unlawful discrimination and breaches of human rights. No basis for the allegation of a perception of bias or actual bias could arise on this ground.

36    In the fifth place, the finding by the delegate that it was open to the applicant to make a complaint to the Commonwealth Ombudsman and her explanation that the Ombudsman has broad powers to investigate administrative actions including the exercise of statutory responsibilities and decisions, does not “exceeds incorrectly power on the Ombudsman.” The explanation correctly summarises the Ombudsman’s powers under the Ombudsman Act 1976 (Cth). That being so, the Commission has express power under s 20(2)(vi) of the AHRC Act to decide not to inquire into a complaint where, as here, the Commission is of the opinion that the subject matter of the complaint could be more effectively or conveniently dealt with by another statutory authority.

37    Nor do the applicant’s written submissions filed on 15 January 2018 further his case. As the Attorney-General submits, paragraphs 1 to 4(a) do not appear to relate to the Commission’s decision. Furthermore, at paragraph 4(b) of his submissions, the applicant refers to an alleged “increasing (doubling) financial requests from the Polish Public Alimony Fund after the Australian Human Rights Commission decided to stop its investigation, the Applicant’s Complaint” (emphasis added). However, as those matters relate to events allegedly occurring after the Commission’s decision, no complaint can be made that the Commission erred in failing to address those matters. The remaining paragraphs of the written submissions do not advance the applicant’s case.

38    The applicant also submitted that the delegate did not make any decision about his daughter’s issue. However that submission that cannot succeed. The delegate’s decision record expressly refers to the applicant’s complaint about a decision of the DHS not to undertake a child support assessment for his daughter because she is over 18 years of age, and his contention that the DHS accepted advice from the Poland Central Authority that there is no upper age limit for child support for his daughter in Poland. The delegate then specifically addressed that matter, finding that:

In relation to your concerns about DHS’s actions and decisions regarding child support, it remains unclear how this can be said to be a breach of human rights as set out in the ICCPR. The information also indicates that there are other more appropriate remedies available to you.

The documents you provided show that in relation to the decision of 3 May 2016, you lodged an objection, received a full merits review of the decision and had the option to seek review of that decision in the AAT and before the FCCA. I understand that while timeframes apply for lodging objections or seeking reviews, extensions of time may be granted.

It would also appear that these specialist review options would have been available to you in relation to other DHS actions or decisions. If not, as your concerns appear to focus on inconsistencies in advice or alleged errors by DHS, I understand it would be open to you to make a complaint to the Commonwealth Ombudsman. As you may be aware, the Ombudsman has broad powers to investigate the administrative actions of most Australian government departments or agencies and this includes investigating the exercise of statutory responsibilities and decisions. I understand the Commission has already provided you with contact details for the Commonwealth Ombudsman.

Therefore in relation to the subject matter of this aspect of your complaint, I am of the opinion that some other more appropriate remedy is reasonably available to you.

39    As a consequence, it is clear that the issue complained of was in fact dealt with by the Commission.

40    Further, the proceeding is also an abuse of process of the Court. As the Attorney-General submits, the proper course to challenge the findings by the FCC would have been by way of an appeal to this Court. By claiming that the Commission erred in its consideration of the applicant’s complaint regarding the FCC judge, Mr Przybylowski seeks to re-litigate the substantive matters which he litigated unsuccessfully before the FCC, thereby challenging that decision collaterally and doing so outside the time limit imposed on appeals. Given the final nature of the orders made by the FCC, the attempt to re-litigate these matters is plainly an abuse of process of the Court. For these reasons, principles of res judicata and issue estoppel are underpinned by the public policy that it would be an abuse of process to allow parties to litigate repeatedly matters that have been finally determined by a court. This is the case not only because “a person ought not to be vexed twice for one and the same cause”, but also because it is in the interests of the State that there be an end to litigation: see e.g. Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242; (2004) 146 FCR 10 (Wong) at [36]-[37] (the Court).

41    Finally, I have considered the many affidavits filed in the proceeding by the applicant and the material annexed to those affidavits. To some extent, these do no more than annex evidence of documents before the Commission and the Commission’s decision. While the affidavit filed on 17 November 2017 (and the applicant’s submissions) seeks an order for an investigation by the Australian Federal Police (AFP), no such relief is sought in the application and the AFP is not a party to the present proceeding. Furthermore, even if there were power to make any such order, which is highly doubtful given the independent statutory functions of the AFP (see e.g. ss 37(1) and 38, Australian Federal Police Act 1979 (Cth)), the affidavit is argumentative and makes only unsubstantiated assertions of improper conduct. By the affidavit affirmed on 4 December 2017 the applicant attaches an “application” to join the Child Support Registrar as a party. However, the deficiencies in the applicant’s claims which I have already identified would not be cured by joinder of the Child Support Registrar. In a number of his affidavits, the applicant also seeks to “apply” for various orders which the Court plainly lacks power to make, including: to order the Polish Minister of Justice to give a legal opinion as to the legality of the orders of a Polish court (as requested in the applicant’s affidavit affirmed on 27 June 2017); to order the Attorney-General to give an opinion on the legality of the FCC decision (as requested in the affidavit affirmed on 26 June 2017); or to grant special leave to appeal to the High Court (as requested in the affidavit sworn/affirmed on 20 June 2017). Nothing otherwise in the applicant’s affidavits indicates the existence of any reasonable cause of action or prospects of success but rather, in common with the pleadings, contain unparticularised and baseless assertions and claims. In these circumstances, there would be no point in permitting the applicant an opportunity to replead.

7.2    Post-hearing submissions and material

42    As earlier mentioned, following the hearing the applicant filed a further affidavit affirmed on 4 February 2018 alleging that the respondent had failed to prove compliance by Australia with what were described as the “Convention on the Recovery Abroad of Maintenance of 1956”, the “Convention on the Recognition of Divorce and Legal Separation”, and the International Covenant on Civil and Political Rights, 999 UNTS 171 (entered into force 23 March 1976) (ICCPR). In his affidavit, the applicant also asserts a breach of procedural fairness in the AHRC decision to cease investigating the applicant’s complaints. The affidavit otherwise contains assertions that are incomprehensible. As to the latter, for example, the applicant says in his affidavit:

The Application for summary dismissal made by Liberal Attorney General, under existing limited time to act for the Child Support Registrar under Australian Law [see material] and under Australia International Obligation [see all “above] including the truth about anti-human liberals totalitarianism.

43    None of that material goes further than to reinforce my conclusion that based upon the available material, the application has no reasonable prospects of success and no opportunity to replead ought to be afforded to the applicant.

44    First, the affidavit is inadmissible being in the nature of submissions only.

45    Secondly, as the second respondent submits, the claims of non-compliance with international obligations are unparticularised to the point where they are meaningless. There is no attempt to demonstrate how any such breach might impact on the Commission’s decision on the judicial review application, quite apart from the failure to identify any specific breach by Australia of its international obligations. Furthermore, on the available materials it does not appear that the applicant complained of any breaches of international law before the Commission save for referring to articles 3, 7, 14, 17, and 26 of the ICCPR, and the applicant failed to identify any manner in which the Commission erred in investigating those complaints: see the Commission’s decision dated 12 May 2017. Moreover, international conventions are not directly enforceable under Australian law: see above at [23].

46    Thirdly, the claims of breach of procedural fairness are equally unparticularised. In Teoh, the applicant submitted that Australia’s entry into the ICCPR gave rise to a legitimate expectation that the Minister would take the interests of the child into account as a primary consideration. However, Mr Przybylowski has not identified any legitimate expectation arising from an international convention in respect of which he alleges that the Commission was required to afford him procedural fairness. Furthermore, the Commission wrote to the applicant by letter dated 10 April 2017 which set out an assessment of all of the information before the Commission and invited the applicant to provide any further information or comments in support of his original allegations. The applicant has not identified any basis on which that letter failed to accord him procedural fairness.

47    Finally, the applicant’s post-hearing written submissions do not comply with the grant of leave to file and serve written submission “in response to” to the second respondent’s submissions which, in turn, were limited to dealing with the s 78B notices which the applicant had previously unsuccessfully attempted to file and the post-hearing evidence described at [42] above. They are not responsive to the second respondent’s submissions and raise entirely new claims including a challenge to the capacity of certain members of the government to sit in the Senate and House of Representatives under s 44 of the Constitution. The applicant also attached a further s 78B notice to the submissions despite the order that no further documents were to be filed without leave of the Court. These further documents also contain bare, scandalous allegations against various persons including various politicians who are not party to the proceedings. In the circumstances, these documents lend further weight to the view that the proceedings are an abuse of process and have no reasonable prospects of success.

8.    CONCLUSION

48    For these reasons, the application for summary dismissal must succeed and the whole of the proceeding should be dismissed pursuant to r 26.01 of the FCR with costs as agreed or assessed.

Associate:

Dated:    9 April 2018