FEDERAL COURT OF AUSTRALIA

Thomas v University of Melbourne (No 2) [2018] FCA 2024

ORDERS

THE COURT ORDERS THAT:

1.    Paragraph 1 of the applicant’s interlocutory application filed 19 November 2018 is dismissed.

2.    Costs of the interlocutory application are reserved.

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

REASONS FOR JUDGMENT

WHEELAHAN J:

1    On 19 November 2018, the applicant filed an interlocutory application in proceeding VID 1407 of 2018 seeking the following orders –

(1)    Disqualification of all legal representatives currently acting for all respondents, except Angus Mackenzie, in matters VID738/2018, VID950/2018, VID1222/2018; and VID1407/2018

(a)    This disqualification precludes these legal representatives taking any further steps in all these proceedings due to breaches documented in the attached Affidavit.

(2)    An order for an urgent hearing to determine the orders set out in this interlocutory application.

(3)    An order for Justice Wheelahan to recuse himself from these matters and any matter which may come before the court with Darron Thomas as a party to the proceeding. This is pursuant to Darron Thomas filing a Judicial Complaint against Justice Wheelahan.

2    I determined to hear the application in paragraph 3 that I recuse myself before anything else. On 3 December 2018 I dismissed the application that I recuse myself: Thomas v University of Melbourne [2018] FCA 1978. Following the dismissal of the applicant’s application that I recuse myself, I adjourned the applicant’s applications in paragraphs 1 and 2 of his interlocutory application as set out above to 14 December 2018 for hearing. I informed the parties in Court on 3 December 2018 that, at that stage, I did not require the respondents or their legal representatives to appear at the hearing of the applications.

3    The applicant has commenced four proceedings in the original jurisdiction of this Court. Each of the proceedings relates, in some way, to the subject matter of a complaint that the applicant made on 26 August 2017 to the Australian Human Rights Commission alleging racial discrimination while the applicant was pursuing PhD studies at the University of Melbourne. On 6 September 2018, a delegate of the President of the Commission terminated the applicant’s complaint under s 46PH(1B)(a) of the Australian Human Rights Commission Act 1986 (Cth) on the ground that the complaint was lacking in substance.

4    In my reasons for judgment of 3 December 2018 I set out a summary of each of the four proceedings, and the interlocutory applications that the applicant had filed in the Court to that time: Thomas v University of Melbourne [2018] FCA 1978 at [6] to [28]. These reasons should be read together with that summary. Since then, the applicant has filed two further interlocutory applications which it is unnecessary to detail in these reasons.

5    Paragraph 1 of the interlocutory application filed 19 November 2018 seeks an order for disqualification of all legal representatives acting for all the respondents, save one, in each of the four proceedings that the applicant has commenced. In support of his application the applicant filed an affidavit affirmed 19 November 2018 and titled “Affidavit: Disqualification of Barristers and Solicitors VID 738/2018, VID 1222/2018 and VID 1407/2018”.

6    The Court has inherent jurisdiction to ensure the due administration of justice. As part of that jurisdiction the Court may, where the circumstances dictate, prevent legal practitioners from acting or appearing for a particular party: Grimwade v Meagher [1995] 1 VR 446. In Finch v Heat Group Pty Ltd (No 2) (2016) 353 ALR 193 at 199 [11], Pagone J stated that the jurisdiction exists to ensure that the integrity of the proceeding is maintained. Pagone J referred to the jurisdiction as extraordinary, and stated that the Court’s concern when considering whether to exercise that extraordinary jurisdiction is whether it is required for the due and proper administration of justice in a proceeding.

7    The applicant’s affidavit is 17 pages long, and is single-spaced. The affidavit does not follow a conventional form. Most of the affidavit is in the nature of argument rather than admissible evidence. It contains extensive references to provisions of the Legal Profession Uniform Conduct (Barristers) Rules 2015 and the Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015. It makes high-level claims of serious breaches of those provisions. The broad nature of the applicant’s claims is as follows. The applicant puts in issue the conduct of the respondents in the assessment of his PhD candidature, in the investigation of subsequent complaints to the University, and in relation to his subsequent complaint to the Australian Human Rights Commission. He then associates the legal practitioners with that conduct, and with the respondents’ responses to his claims to the Australian Human Rights Commission, and the decision of the Australian Human Rights Commission to terminate his complaint. He makes claims that the legal practitioners have made misrepresentations and misleading statements to the Commission and to the Court, and have failed to disclose matters to the Commission and to the Court. The applicant alleges that the legal practitioners have thereby breached of a range of professional duties arising under the conduct rules.

8    Allegations of breach of professional duty of the type made by the applicant should not be made lightly. Any such allegations should have a proper basis, and be the subject of cogent proof. The applicant’s affidavit does not provide an evidentiary foundation for the claims of breach of duty which he makes against the legal practitioners. Still less have the applicant’s claims been established in any court or tribunal of competent jurisdiction by reference to the standards and burdens relevant to those allegations.

9    There is therefore no basis to make any order of the type sought by the applicant in paragraph 1 of his interlocutory application filed 19 November 2019 in proceeding VID 1407 of 2018. The application will therefore be dismissed. I will reserve the question of costs of the interlocutory application to a later hearing.

Associate:

Dated:    14 December 2018

SCHEDULE OF PARTIES