Federal Court of Australia

Brown v State of Queensland [2020] FCA 1614

ORDERS

THE COURT ORDERS THAT:

1.    The Applicant’s application for leave to proceed be dismissed.

2.    The proceeding be dismissed.

3.    The Applicant pay the costs of the Respondents as agreed, taxed or assessed.

4.    The Applicant’s recusal application be dismissed.

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

REASONS FOR JUDGMENT

PERRAM J:

1    The Applicant is Mr Alex Sandy Brown. Mr Brown sues three respondents. The first of these is described in his originating application as the ‘State of Queensland (Supreme Court of Queensland)’, the second is the Honourable Justice Boddice, a judge of the Supreme Court of Queensland and the third is the Chief Justice of the same court.

2    It is Mr Brown’s complaint that the Supreme Court of Queensland erred in giving judgment against him in a civil trial and failed to make allowances for his hearing and sight disabilities. That case concerned the failure of Mr Brown’s swimming pool and coaching business. That business was purchased by Mr Brown’s company, Summer Swim Pty Ltd, from the owner of the swimming pool, Sam Riley Promotions Pty Ltd. The business of Summer Swim Pty Ltd failed.  Mr Brown said it was the fault of Sam Riley Promotions Pty Ltd which said that it was Mr Brown’s fault. The matter was tried before Justice Boddice on 4, 5, 6 and 7 March 2019 and decided on 26 March 2019: Summer Swim Pty Ltd v Sam Riley Promotions Pty Ltd [2019] QSC 70. Justice Boddice found for the defendant. Mr Brown now alleges that Justice Boddice discriminated against him because of his sight and hearing impairments. At some subsequent point, it appears that Summer Swim Pty Ltd was wound up.

3    Mr Brown then made a complaint to the Australian Human Rights Commission (‘the AHRC’). The application invoked the Australian Human Rights Commission Act 1986 (Cth) (‘the AHRC Act’). The party against whom the complaint was made was the State of Queensland. The legal form of the argument included allegations that the State of Queensland had, by the actions of its Supreme Court, violated arts 2(3) and 14 of the International Covenant on Civil and Political Rights. Opened for signature 19 December 1966. 999 UNTS 171 (entered into force 3 March 1976) and art 13 of the Convention on the Rights of Persons with Disabilities. Opened for signature 30 March 2007. 2515 UNTS 3 (entered into force 3 May 2008). Subsequently, Mr Brown added allegations that the Supreme Court had also breached the Disability Discrimination Act 1992 (Cth) (‘the DD Act’).

4    Although Mr Brown’s complaint about the Supreme Court of Queensland included allegations levelled against the Chief Justice and Justice Boddice, neither was named by him as a respondent to the complaint.

5    The AHRC terminated consideration of the complaint on the basis that it was misconceived and lacked substance. Mr Brown then applied to this Court for relief under s 46PO of the AHRC Act to determine the subject matter of his complaint to the AHRC. However, where a complaint has been dismissed by the AHRC then, subject to some presently immaterial exceptions, an application about the subject matter of the complaint may not be made to this Court unless it first grants leave: s 46PO(3A)(a) AHRC Act.

6    Mr Brown now seeks that leave. In my opinion, the application for leave should be refused. Insofar as Justice Boddice and the Chief Justice are concerned, neither was a party to the complaint before the AHRC so this Court has no jurisdiction to entertain a suit against either of them under s 46PO. Such a claim ‘only lies against the respondents to the terminated complaint’: Grigor-Scott v Jones [2008] FCAFC 14; 168 FCR 450 at [18]. Mr Brown submits that it was the AHRC which determined who the respondents to the complaint were. Assuming that in Mr Brown’s favour, I do not see how that solves the problem.

7    Insofar as the State of Queensland is concerned, Mr Brown’s complaint is about the manner in which Justice Boddice conducted his trial and his Honour’s conclusion that Mr Brown’s suit should be dismissed. Implicit in this contention is the idea that the State of Queensland is civilly liable for the acts of Justice Boddice. I propose to assume in Mr Brown’s favour that the State could be liable in this way (either because Justice Boddice’s actions should be taken to be its own or because of some novel species of vicarious liability).

8    However, Justice Boddice himself could have no such liability since his actions as the judge hearing Mr Brown’s case fell within the scope of the judicial immunity protecting him from civil suit. The immunity is conferred by the common law: Fingleton v The Queen [2005] HCA 34; 227 CLR 166 at [38] per Gleeson CJ. There is nothing in the AHRC Act to indicate that Parliament intended s 46PO to oust such an important common law doctrine and I would not read it that way in the absence of clear words which I do not discern.

9    Since Justice Boddice is immune from suit in relation to his handling of Mr Brown’s case then the State of Queensland must stand in the same position viz a viz his actions. There can be no secondary liability without a primary liability.

10    Mr Brown’s case against the State of Queensland in relation to the actions of the Chief Justice potentially raises more difficult issues. Mr Brown makes a number of allegations against her Honour in his originating application. It is useful to deal with each of them.

11    At §16 Mr Brown alleges a denial of procedural fairness and discrimination by her Honour ‘not following principles of Supreme Court Equal Treatment Bench book’, by failing to follow ‘QLD U.C.P.R 1999 Reg 5’, by not permitting any hearing of Mr Brown’s applications, by permitting the winding up petition to proceed against his company (which had the effect of preventing any appeal) and by not adhering to the ‘Guide to Judicial Conduct’. I do not understand the allegation of discrimination which this makes. Mr Brown claims to have two disabilities relating to his vision and his hearing. It is apparent that Mr Brown is dissatisfied with the steps he alleges the Chief Justice did (or perhaps more accurately, did not) take but I struggle to see how any of these could be plausibly linked to the fact that Mr Brown was vision or hearing impaired. I do not think such a case should be permitted to go forward.

12    At §17 Mr Brown then alleges that the Chief Justice engaged in discrimination and victimisation by trying to cover up the alleged discrimination by Justice Boddice. Victimisation is not a concept known to the DD Act and may be put to one side. I do not see how a ‘cover up’ could be said to have anything to do with the fact of Mr Brown’s alleged hearing and vision impairments. The logic of Mr Brown’s argument is that if he had not had those disabilities the Chief Justice would have upheld his complaint. The suggestion that the Chief Justice of Queensland refused to act on Mr Brown’s complaint because he had a hearing and/or visual impairment needs only to be stated to be rejected.

13    At §18 Mr Brown alleges that the Chief Justice was dishonest. Such an allegation does not bring the matter within the DD Act or the AHRC Act.

14    At §19 Mr Brown alleges that the Chief Justice engaged in discrimination by ignoring the ‘Defendant’s perjury’. Assuming this to be a reference to the defendant in the Supreme Court proceeding, again one confronts the problem which derives from pondering why the Chief Justice would do such a thing because of Mr Brown’s hearing or vision impairments. I do not accept that such a case is remotely plausible.

15    At §20 Mr Brown alleges that the Chief Justice ignored the defendant’s (scil. the defendant in the Supreme Court proceeding) ‘late, incomplete and misleading disclosure’ which had led to a judgment being obtained by fraud. This allegation makes no sense. The Chief Justice was not the trial judge. In any event, it would appear that the disclosure – whatever it was – is something Mr Brown thinks should have been ignored. But the allegation appears to be that the Chief Justice did in fact ignore the disclosure so one is left guessing what Mr Brown is driving at in this section. Putting all that to one side, whatever it is that Mr Brown is complaining about, it does not appear to have anything to do with his hearing or vision impairment.

16    I therefore conclude that none of the matters which Mr Brown wishes to allege against the State of Queensland arising from the allegations made about the Chief Justice have any prospects of success. Whatever the standard to be applied to the grant of leave under s 46PO might be it does not extend to cases having absolutely no merit. In that circumstance, I would not be disposed to grant leave to proceed against the State of Queensland in relation to these matters.

17    In relation to the matter just decided (ie the State of Queensland’s liability for the actions of its Chief Justice), I have not found it necessary to consider the operation of s 27 of the Supreme Court of Queensland Act 1991 (Qld). Had that been necessary questions may have arisen as to whether the AHRC Act or the DD Act could be construed so as not to apply to the administrative actions of Supreme Court judges. The matters underlying that implication would not necessarily be the same as those underpinning the conclusion that the legislation should not be construed so as to impinge on common law judicial immunity. Assuming, as may be possible, that the AHRC Act and the DD Act could not be construed so as not to apply to the administrative activities of judges, two further related questions would have arisen. The first of these concerns the legislative competence of the Commonwealth to make laws regulating the conduct at the highest levels of a State government: Austin v Commonwealth [2003] HCA 3; 215 CLR 185; Clarke v Commissioner of Taxation [2009] HCA 33; 240 CLR 272; Albrecht v Commissioner of Taxation [2014] FCAFC 176; 228 FCR 177; Parliamentary Trustee of Parliamentary Contribution Superannuation Fund v Commissioner of Taxation [2013] FCAFC 127, 216 FCR 329. The second, which assumes an affirmative answer to the first, is whether s 27 of the Supreme Court of Queensland Act 1991 (Qld) would be invalid by reason of s 109 of the Constitution. However, I refuse Mr Brown leave in relation to this aspect of the matter because of its merits and on the assumption that the Court in fact has jurisdiction.

18    I should add for completeness that although I have proceeded on the assumption that Mr Brown’s factual allegations might eventually be made good (as on a demurrer), I have done so only for the sake of efficiency. In fact, many of the allegations Mr Brown makes are scandalous and seem to have no basis in reality. It should not be thought that by assuming them in favour of Mr Brown I would wish to be seen as giving them the slightest colour.

19    I therefore dismiss the application for leave to proceed. Without a grant of leave the proceeding is incompetent. I will therefore dismiss it in its entirety. Mr Brown must pay the costs of the Respondents as agreed, taxed or assessed.

20    I turn then to the question of recusal. At the case management hearing held on 3 September 2020 Mr Brown asked me to recuse myself on a number of occasions. The first of these arose out of my suggestion the previous day that since the parties agreed on the substantive orders (apart from costs and some minor timetabling issues) the need for a case management hearing might be obviated if the parties agreed that the costs should be reserved. I also indicated that my tentative and preliminary view was that the dates proposed by the Respondents were appropriate. Mr Brown said I had thereby prejudged the matter. I refused this application at T3-T4 for the reasons there set out.

21    The second arose from my determination in the case management hearing of a time limit in the timetable contrary to that which Mr Brown desired. I refused this at T8 for the reasons there set out.

22    The third arose out of a question I directed to Ms McRostie, who appeared for the Respondents, as to whether a decision by the Court to dismiss Mr Brown’s proceeding summarily would be interlocutory or final. I refused this at T13-T14 for the reasons there set out.

23    In his submissions on the leave application Mr Brown returned to these applications to complain about my treatment of them and also about my conduct. Since those applications have already been determined for reasons I have already given, nothing is to be gained by engaging with this, admittedly, colourful material. In his written submissions he made a fresh application that I should recuse myself. I did not apprehend there to be anything new in this application and I will dismiss it too for the reasons I have already given.

Associate:

Dated:    6 November 2020