Federal Court of Australia

Reisner v Bridge Housing Ltd [2021] FCA 279

ORDERS

THE COURT ORDERS THAT:

1.    The application for a stay is refused.

2.    The application for the reconstitution of the Court is rejected.

3.    The application for the appointment of Pro Bono Counsel is rejected.

4.    The Application under the Australian Human Rights Commission Act 1986 (Cth) filed on 22 October 2020 is dismissed.

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

REASONS FOR JUDGMENT

FLICK J:

1    On 22 October 2020, the Applicant in the present proceeding, Ms Koidu Reisner, filed in this Court a document titled:

Application under the Australian Human Rights Commission Act 1986

Section 46PP – Interim injunction to maintain status quo etc

The First Respondent was named as Bridge Housing Ltd; the Second Respondent was named as Theo Posumah.

2    The matter first came before the Court as a duty matter in October 2020. The matter was listed for interlocutory hearing on 27 October 2020 and again on 30 October 2020. Those listings were due to take place via telephone, but no appearance was entered. On 22 December 2020, Ms Reisner, contrary to a direction of the Court, appeared in person and the Respondents appeared via telephone by their Counsel. Ms Reisner then maintained that the hearing of her Application to maintain the status quo was one of some degree of urgency. She sought until 25 January 2021 to file the entirety of her evidence. An application was also made on 22 December 2020 for the reconstitution of the Court. Directions were then made for the filing of any Interlocutory Application, evidence and submissions. Ms Reisner was required to file her evidence by 25 January 2021, as she requested, and for the Respondents to file their evidence by 12 February 2021. The matter was stood over to 4 March 2021 at 9.00am for case management.

3    On 4 March 2021, Ms Reisner sought an extension of the time within which to file her evidence and an order for the appointment of Pro Bono Counsel. Given that she had previously maintained there was urgency in the resolution of her substantive claim for relief pursuant to s 46PP of the Australian Human Rights Commission Act 1986 (Cth) (the “Human Rights Commission Act”), any further delay on her part was perhaps unexpected. An extension of time within which to file evidence was nevertheless granted and the proceeding listed for hearing on 23 March 2021. On 4 March 2020, Ms Reisner was advised that it was not at that stage considered appropriate to make any order for the appointment of Pro Bono Counsel nor any order for the reconstitution of the Court. Both of those matters were nevertheless stood over for further consideration to 23 March 2021. If neither order was then made, the parties were advised that the matter would proceed to the hearing of the substantive application seeking relief (principally) under s 46PP of the Human Rights Commission Act.

4    At the outset of the hearing on 23 March 2021 Ms Reisner applied for a “stay,” including (in particular) a “stay” of the hearing on that day.

5    Notwithstanding the opposition of Ms Reisner, the hearing on 23 March 2021 proceeded, and evidence tendered and submissions advanced in respect to her applications for:

    a stay;

    the reconstitution of the Court; and

    the appointment of Pro Bono Counsel.

Evidence and submissions were also then heard in respect to her:

    application for substantive relief pursuant to s 46PP of the Human Rights Commission Act.

At the conclusion of the hearing on 23 March 2021 the parties were advised that any decision to be made was reserved, including a decision in respect to the application for a stay.

6    It has been concluded that:

    the application for a stay should be refused;

    no order should be made for the reconstitution of the Court;

    no order should be made for the appointment of Pro Bono Counsel; and

    the Application under the Human Rights Commission Act should be dismissed.

Each of these issues should be separately addressed.

The application for a stay

7    At the outset of the hearing on 23 March 2021, Ms Reisner applied for a “stay”. She made available to the Court in support of her application for a “stay”:

    an Application for Leave to Appeal; and

    a Draft Notice of Appeal.

The Draft Notice of Appeal refers to the Appellant seeking to appeal “from all of the orders of the FEDERAL COURT JUDGE FLICK made on 04/03/21 in the court room and all additional determinations, decisions and orders made to the paper”.

8    The orders made on 4 March 2021 and those referred to in the Draft Notice of Appeal were as follows:

1.    Order 1 as made on 22 December 2020 is varied such that the time for filing and service of the material referred to in that Order is extended to midday on 22 March 2021.

2.    The matter is listed for hearing at 10:15am on 23 March 2021. That hearing is to include the hearing of any Application for Pro Bono Assistance, any Application for Interlocutory Relief seeking the reconstitution of the Court and the hearing of the Originating Application dated 22 October 2020.

9    Given the terms of these Orders, there arose uncertainty at the hearing on 23 March 2021 as to what orders or decisions had been made which it was sought to be “stayed”. Although Ms Reisner had previously been informed that the Court was “not minded” to then accede to earlier applications which had been made for the reconstitution of the Court or for the appointment of Pro Bono Counsel, those were the very matters to be finally addressed at the 23 March 2021 hearing, on the basis of the evidence then available and on the basis of submissions then to be made. Any further interlocutory application that she may have wished to make was also addressed on 23 March 2021.

10    Notwithstanding the terms in which the Draft Notice of Appeal is expressed, it is nevertheless understood that Ms Reisner seeks a “stay” of orders or decisions said to have been made:

    on 22 December 2020 and 4 March 2021, that the Court not be reconstituted;

    as to the appointment of Pro Bono Counsel; and

    refusing her application made on 2 March 2021 for access to a voice recording of the hearing on 22 December 2020.

That which was certainly embraced within her application for a “stay” was a “stay” of the hearing otherwise scheduled to take place on 23 March 2021.

11    Although Ms Reisner opposed the course the hearing took on 23 March 2021, and her continued opposition to any hearing taking place on that date, she advanced her submissions directed to:

    the application for a “stay”, her contention being that decisions or orders had already been made as to (in particular) the application for the reconstitution of the Court and for the appointment of Pro Bono Counsel, and that she had a right to first pursue her Application for Leave to Appeal;

    the bases upon which she sought an order for the reconstitution of the Court, those bases then identified as going beyond those that had previously been relied upon on 22 December 2020 and 4 March 2021;

    the application for the appointment of Pro Bono Counsel, the bases for that application again going beyond those bases previously relied upon; and

    the application for relief under s 46PP of the Human Rights Commission Act.

12    On one view of that which had transpired prior to 23 March 2021, the prior indications from the Court that it was “not then minded” to accede to her applications for the reconstitution of the Court or for the appointment of Pro Bono Counsel were indications not susceptible to a “stay”. On one view of the matter, the only order which had to that point of time assumed any real importance was the procedural order made on 4 March 2021. To the extent that the present application for a stay necessarily involves the Court in a consideration of the merits of any proposed appeal, assuming that leave to appeal were to be granted, it is presently considered that a “stay” should be refused. The orders as made on 4 March 2021 were, with respect, inconsistent with any decision or order having been made which finally resolved Ms Reisner’s two principal applications then pressed.

13    It is respectfully considered to be inimical to the administration of justice for a party in advance of a hearing to seek to “stay” decisions which were to be addressed at that hearing. Prior indications as to those matters of concern to a Court and those matters in respect to which it requires further assistance by way of either evidence or submissions, especially indications provided to an unrepresented party in an attempt to focus the attention of that party on the issues to be resolved, should not be characterised as decisions susceptible to a stay. If such a proposition were to be too readily acceded to, it would prove difficult for any Court to give detailed consideration to applications made, and more difficult to make a final decision with the benefit of more detailed evidence and submissions.

14    Just as the filing of a Notice of Appeal does not operate as a stay of the judgment appealed from, the mere filing of an Application for Leave to Appeal does not operate as a stay of the proceedings then before a primary Judge.

15    The application for a “stay” is thus refused.

The disqualification application

16    The application for the reconstitution of the Court should be resolved at the outset. If acceded to, the applications for the appointment of Pro Bono Counsel and the application for relief pursuant to s 46PP would necessarily have to be re-allocated to a different Judge of the Court.

17    The application for disqualification, however, is to be rejected.

18    The application, as first made on 22 December 2020, was understood to have been made on either or both of two grounds, namely:

    the fact that the Court as presently constituted had previously heard and rejected a claim made by Ms Reisner in different proceedings; and/or

    comments made during the course of the case management hearing on 22 December 2020.

Neither ground, it has been respectfully concluded, has been made out. The application for the reconstitution of the Court is, accordingly, rejected.

19    The test to be applied in resolving an allegation as to there being a reasonable apprehension of bias is an objective one and one founded upon the necessity for public confidence in the integrity and impartiality of the judiciary: Johnson v Johnson [2000] HCA 48, (2000) 201 CLR 488 at 492 to 493. Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ there summarised the position as follows:

[11]    … It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.

[12]    That test has been adopted…for the reason that it gives due recognition to the fundamental principle that justice must both be done, and be seen to be done. It is based upon the need for public confidence in the administration of justice. “If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision.” The hypothetical reasonable observer of the judge’s conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is “a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial”.

[13]    Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation ...

(footnotes omitted)

20    Any application for the disqualification of a Judge and the consequential reconstitution of the Court, including those in which the application is founded upon a Judge’s participation in other proceedings involving one of the litigants, must be “firmly established”: Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352 (“Re JRL”). Mason J (as his Honour then was) there observed:

It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as [Reg. v Watson; Ex parte Armstrong (1976) 136 CLR 248] and [Livesey v New South Wales Bar Association (1983) 151 CLR 288] has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be “firmly established”: Reg. v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [(1969) 122 CLR 546 at 553 to 554]; [Reg. v Watson; Ex parte Armstrong (1976) 136 CLR at 262]; [R v Lusink; Ex parte Shaw (1980) 55 ALJR 12 at 14, (1980) 32 ALR 47 at 50 to 51]. Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.

21    As to the former basis of the application in the present proceeding, and the reason to question the impartiality of the Court as presently constituted by reason of earlier decisions involving Ms Reisner, the facts are within a narrow compass. In November 2007, the Court as presently constituted dismissed an Application and a Statement of Claim that had been filed by Ms Reisner, naming as Respondents the Commonwealth of Australia and the State of New South Wales: Von Reisner v Commonwealth [2007] FCA 1959. It was concluded that the “proceedings against the Commonwealth [were] but a colourable attempt to attract the jurisdiction of this Court” and that the dismissal of the proceedings against the Commonwealth deprived the Court of jurisdiction to entertain the balance of any case as against the State: [2007] FCA 1959 at [30]. The matter came back before the Court in March 2008 when the Applicant sought to file an Amended Application and Statement of Claim: Von Reisner v Commonwealth (No 2) [2008] FCA 430. The Applicant again met with failure. It was then concluded (inter alia) that “the proposed amended application [went] beyond the scope of any amendment to the existing proceedings and [was], in substance, an entirely new proceeding”: [2008] FCA 430 at [13]. It was further concluded that the “proposed application [was] embarrassing in substance”: [2008] FCA 430 at [14]. The matter again came back before the Court and a further judgment was published in July 2008: Von Reisner v Commonwealth (No 3) [2008] FCA 1028. On that occasion orders as previously made were varied. An appeal by Ms Reisner of the March 2008 orders and judgment was successful: Von Reisner v Commonwealth of Australia [2009] FCAFC 97, (2009) 177 FCR 531. The order previously made that Ms Reisner was not to commence any further proceeding without the leave of the court was set aside.

22    The mere fact that claims made by the same Applicant in different proceedings have been rejected does not, of itself, preclude the same Judge hearing different claims in an entirely different proceeding, especially in different proceedings coming back before the Court over a decade later: cf. Re JRL (1986) 161 CLR at 352. Although the factual background to the proceeding now before the Court may well have emerged from much the same facts as were the subject of the earlier decisions in 2008, the issues now sought to be resolved are very different. The issues now to be resolved focus attention on an application for relief pursuant to s 46PP of the Human Rights Commission Act. That is an issue which formed no part of the earlier decisions, and an issue dependent upon the facts as they emerged as between Ms Reisner and the Australian Human Rights Commission.

23    A reasonably informed observer, it is respectfully concluded, would not form any view that the Court would not approach the new proceedings with a mind open to persuasion on the facts and claims then before the Court and now sought to be pursued. It is a fact that some litigants frequently appear in this Court in many and varied forms of proceedings and commonly those litigants have their claims listed for hearing before the same Judge. Such is not uncommon in proceedings where major commercial and financial institutions are frequently parties. It is also not uncommon in industrial litigation for the same union to frequently appear before the same Judge. Although the case with private litigants may present the issue in a more stark and personal manner, the same principle applies – namely, would the reasonably informed bystander form the view that the Judge would not resolve each application or proceeding on its own facts and merits.

24    As to the latter basis upon which the application for reconstitution of the Court was advanced, namely comments made during the course of the directions hearing on 22 December 2020, the application – on balance – should not be acceded to on that basis.

25    It is understood that the comments upon which Ms Reisner sought to rely arose out of her appearance in person on that occasion. Only one day previously, the Chief Justice had directed that all hearings were to be conducted remotely and not in person, except with his prior approval. The occasion for that direction was a yet further outbreak of COVID-19 infections, notably on the Northern Beaches area of Sydney, but also reported infections in the Sydney CBD area. The application sought to be made by Ms Reisner was an application to be heard in person. She had, however, been advised on no less than three occasions that the proceeding to resolve her application would be conducted remotely. She nevertheless appeared in person.

26    The comments made during the course of that directions hearing were unambiguous and unequivocally critical of Ms Reisner. She was unequivocally told that her appearance, contrary to her being told that she was not to appear in person:

    sought to pre-empt any decision that was to be made in respect to her application to be heard in person, the hearing on 22 December 2020 being merely a case management hearing intended to put in place a procedure for the filing of evidence upon which her application could be resolved at some stage in the future – assuming that by that future date hearings were still to be conducted remotely in the ordinary course,

but, more importantly:

    placed at risk the health and safety of others, including most specifically, the Court’s staff.

Her conduct in turning up in person in Court was described as “irresponsible”.

27    When a litigant acts in a manner contrary to directions previously communicated to them and thereby potentially places at risk the health and safety of others, it is respectfully considered that the Court should have no hesitation in telling that litigant that their conduct falls well short of that which is expected. The expression of such comments, it is thus concluded, form no basis for the application for reconstitution of the Court.

28    The application, moreover, ignores the fact that comments made in respect to those matters addressed on 22 December 2020 provide no basis for an apprehension that the claims made by the Applicant in her substantive proceeding would not be resolved on their own merits.

29    The application for reconstitution as renewed on 4 March 2021, it was understood, relied not merely upon the bases previously expressed but also upon a more generally expressed concern as to whether the Court as presently constituted was sufficiently alert as to the need to protect “human rights”. This basis for an order for reconstitution of the Court was perhaps different from the two former bases. The two former bases relied upon an allegation that there was a reasonable apprehension of bias. The present basis came closer to an allegation as to actual bias. Such an allegation is obviously more difficult to prove (cf. Re Minister for Immigration and Multicultural Affairs; ex parte AB (2000) 177 ALR 225 at 226 per Kirby J) and any finding as to actual bias is “a grave and exceptional matter” (cf. NADR v Minister for Immigration & Multicultural Affairs [2002] FCA 361 at [16] per Emmett J). Such an allegation must be “strictly proved”: SZOMF v Minister for Immigration and Citizenship [2011] FCA 57 at [24] per McKerracher J.

30    But no litigant should be hesitant in making a properly formulated and well-founded allegation: cf. Dowling v Fairfax Media Publications Pty Ltd (No. 2) [2010] FCAFC 28 at [106] per Logan and Flick JJ.

31    In the present proceeding the factual basis for the allegation was expressed in a number of different ways but had as its central theme a perceived lack of empathy on the part of the Court as presently constituted for, or lack of understanding of, the plight of those in the situation confronting Ms Reisner. Notwithstanding the conviction with which Ms Reisner may hold such views, they are – with respect – ill-founded, and not supported by any material upon which a reasonably informed bystander could reach the same conclusions as those reached by Ms Reisner.

32    The application for disqualification is, respectfully, dismissed.

33    That leaves for resolution the application for the appointment of Pro Bono Counsel and the resolution of the substantive application for relief pursuant to s 46PP of the Human Rights Commission Act, should the application for the appointment of Pro Bono Counsel fail.

The appointment of Pro Bono Counsel?

34    Rule 4.12 of the Federal Court Rules 2011 (Cth) (the “Federal Court Rules”) expressly confers a discretionary power upon the Court to “refer a party to a lawyer for legal assistance”. That Rule provides as follows

Referral for legal assistance

(1)    The Court may refer a party to a lawyer for legal assistance by issuing a referral certificate, in accordance with Form 9.

(2)    When making a referral under subrule (1), the Court may take the following matters into account:

(a)    the means of the party;

(b)    the capacity of the party to otherwise obtain legal assistance;

(c)    the nature and complexity of the proceeding;

(d)    any other matters the Court considers appropriate.

(3)    The referral certificate may state the kind of legal assistance for which the party has been referred.

(4)    A Registrar will attempt to arrange for the provision of legal assistance in accordance with the referral certificate to a Pro Bono lawyer.

The predecessor provision to this Rule, namely O 80 r 4 of the now-repealed Federal Court Rules 1979 (Cth) previously confined the power to those circumstances where it was “in the interests of the administration of justice” to make an order.

35    The discretion as now conferred is “very broad” and unconstrained by the prior limitation: Fuller v Toms [2012] FCA 27, (2012) 247 FCR 440. Although a referral certificate was there refused, Barker J made the following observations in relation to the width of the power conferred (at 457 to 458):

[92]    It may be noticed that the current Rules only relatively recently replaced the former Federal Court Rules 1979 (Cth) (old Rules). Under the old Rules, the Court also had the power to make a referral for legal assistance, but the equivalent rule to current r 4.12(1), namely O 80 r 4(1), qualified the referral power by providing that the Court may make the referral “if it is in the interests of the administration of justice to do so”. That qualification no longer exists.

[93]    It is quite clear therefore that the Court’s power to issue a referral certificate is very broad indeed and the observations to this effect made in respect of the former O 80 r 4(1) apply with even more force in relation to the current r 4.12(1): see generally Taylor v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 319 at [10] and Rivera v Minister for Home Affairs [2008] FCA (Rivera) at [8].

[94]    It should also be noticed that by r 4.13, a party has no right to apply for a referral. This too emphasises the breadth of the Court’s discretionary power to control the referral process. That said, there is no difficulty with a party raising the question of referral, as the applicant has here, as a means of initiating the Court’s consideration of the exercise of its discretion.

[95]    Rule 4.12(2) sets out the matters that the Court “may” – not “must” – take into account in deciding whether or not to make a referral…

[96]    It is clear from the language used in r 4.12(2) that the Court is not limited to a consideration of the particular matters listed, nor required to take any into account, and indeed (d) emphasises that the Court can consider any matter that it considers appropriate.

[97]    Under the old Rules, it was considered that it would not be appropriate to make a referral “in the interests of the administration of justice” if a case were patently hopeless or there was no arguable basis for it: see Rivera at [8]. While the “interests of the administration of justice” qualification to the exercise of the power has gone in the latest version of the Rules, there is no doubt, in my mind, that the question of a patently hopeless case or one that has no arguable basis, is still a factor that may be taken into account by a Court in deciding to exercise its power to grant a referral certificate, and very often will be considered. But plainly it is not intended to be a controlling criterion, particularly as it is not one that controls the exercise of the discretion created by r 4.12(1).

In Taylor v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 319 at [10], French J, when sitting as a Judge of this Court, also observed that a referral certificate could be refused “where a case is patently hopeless”. See also: Kolya v Tax Practitioners Board [2012] FCA 492 at [25], (2012) 88 ATR 471 at 477 per Foster J; Nand v Fuji Xerox Australia Pty Ltd [2014] FCA 995 at [4] per Gleeson J (when sitting as a Judge of this Court). The “mere fact that a party is unrepresented”, however, “is not a sufficient reason of itself to warrant a referral for legal assistance”: ADF15 v Minister for Immigration and Border Protection [2018] FCA 1099 at [29] per Flick J. It was there observed that the “existence of a pro bono referral system, and the fact that members of the bar are prepared to offer their services for free, is a resource which should be cherished and not abused”.

36    During the course of the case management hearing on 4 March 2021, Ms Reisner was also then advised that the Court was not then minded to make an order for referral.

37    The tentative view then expressed, and expressly stated as being made without the Court having formed any concluded view on the matter, and without having had the benefit of Ms Reisner’s own submissions, was that there was some apparent merit in the Respondent’s Outline of Submissions dated 16 February 2021. Those Submissions set forth the text of s 46PP of the Human Rights Commission Act, the exchange of e-mails between the Respondent and the Human Rights Commission and the prior decisions of this Court to be relied upon as to the purpose of s 46PP. The submissions then relevantly maintained:

Therefore, the court’s jurisdiction to grant an injunction pursuant to s46PP of the Act will be enlivened if a complaint is lodged with the Commission and at the time the court is determining the application for an injunction, the complaint is pending in the Commission. If a complaint was not made to the Commission, it cannot be pending and the court would have no jurisdiction to grant an injunction pursuant to s46PP.

38    Although the question as to whether that submission should prevail or not should be separately addressed, of present importance is the notice given by the Respondents to Ms Reisner of a principal basis upon which they were opposing her application for substantive relief pursuant to s 46PP.

39    The principal reason for not making an order for referral pursuant to r 4.12 of the Federal Court Rules on 4 March 2021, was that the resolution of the Respondents’ submissions focussed upon:

    a statutory provision expressed in simple terms which posed an equally simple factual inquiry – namely whether or not a “complaint” had been “lodged” with the Commission; and

    a factual inquiry of limited ambit and more within the knowledge of Ms Reisner than the Respondents, namely a factual inquiry concerning the nature of the communications exchanged between herself and the Human Rights Commission.

A proceeding in which there arises for resolution a limited and comparatively simple factual and legal question does not self-evidently suggest that a referral certificate is appropriate.

40    But circumstances in any litigation may change – what may initially appear to be a simple matter may be exposed, on further analysis, to difficulties not previously foreseen. The prospect of that occurring was the very reason why Ms Reisner was advised on 4 March 2021 that her application for Pro Bono assistance would be revisited at the hearing itself and a final decision then made. But no legal or factual complexities did arise.

41    Further bases upon which Ms Reisner maintained, at the hearing on 23 March 2021, that she should be referred to Pro Bono Counsel, being bases not previously foreshadowed, included a submission that it was only Pro Bono Counsel who could properly address:

    her submission that she had made a “complaint” to the Human Rights Commission, that requirement having been satisfied by the completion of a “form” which had been provided to the Commission – any departure from a conclusion that the completion of such a “form” was a “complaint”, so the submission ran, was a conclusion which gave rise to “fundamental Constitutional concerns”;

    her submission that the person within the Commission who emailed a response that the Commission had not “accepted” Ms Reisner’s communications with the Commission as a “complaint” was a person who had no authority to communicate or make such a decision;

    the details as to the deficiencies in her existing means of telephonic communication and her submission that she could not effectively access the “National Emergency 000 fixed line signals”; and

    the form and content of a notice proposed to be served pursuant to s 78B of the Judiciary Act 1903 (Cth).

Had there been any perceived merit in any of these matters, perhaps a different conclusion may have been reached in respect to the referral to Pro Bono Counsel. But none of these submissions have any merit. At the heart of the present proceeding was Ms Reisner’s application for relief pursuant to s 46PP of the Human Rights Commission Act. And the resolution of that application, it is considered, centred upon a very confined factual dispute, and the interpretation of a comparatively simple statutory provision. The task before the Court, respectfully, presents little difficulty.

42    Notwithstanding the submission made by Ms Reisner as to her perceived disadvantage at the hands of a legally represented Respondent, it is not considered that she suffered any disadvantage by reason of Pro Bono Counsel not being made available.

43    Her application made on 23 March 2021, for further time in which to provide evidence in respect to her communications with the Human Rights Commission, being further evidence which she maintained would support her contention that she had in fact made a “complaint”, is to be rejected. It is respectfully considered that she has had more than adequate time in which to place before the Court all such evidence that she sought to rely upon. The importance of identifying that which constituted a “complaint” was made unequivocally clear to her from at least that date upon which she received a copy of the Respondents’ submissions dated 16 February 2021, those submissions not only expressing the contention that there was “no complaint … pending in the Commission” but the affidavit filed with those submissions also annexing a copy of the email evidence in support of that contention.

The s 46PP Application – as filed in this Court

44    The rejection of the application for the reconstitution of the Court and the rejection of the application that a referral order be made pursuant to 4.12 of the Federal Court Rules leaves it necessary to resolve Ms Reisner’s substantive application as filed on 22 October 2020.

45    That part of the Application directed to the order sought under s 46PP was expressed as follows (without alteration):

PURSUANT TO THE S 46 PP OF THE AHRC ACT and s 32 of the Federal Court Act THE APPLICANT SEEKS FOLLOWING ORDERS TO BE MADE :

    URGENT ORDER BY A DUTY JUDGE

1)    ORDER that a Status Quo is placed to the period of the 12/ 02/ /20 and including the day the Human Rights Complaint was lodged on the 08/07/20 ( 12/02/20 to 08/07/20 included ) to all legal and financial relationships between the parties until this the Human Rights violation proceedings are finalised in relation to the access to Telecommunications services in the DDA Cth s 25 ( 1 ,2) defined “ Accomodation” and the Accomodation “fixed-line” “end-point” telco-signals access as Emergency OOO etc

2)    ORDER that s46 PP STATUS QUO in the order 1) above is placed on , in relation to the $ 2 500 dollars as she stated in the 08/07/20 the Complaint lodged of the fees she is demanded to pay for “the services ”

3)    ORDER that the Applicant shall not be made homeless by eviction from her home of 22 years during and until the Human Rights claim pending process is finalised and her rights are determined according to the DD Act s 24,25,42 and AD Act Cth , all other Telecommunications laws implemented in to those Acts.

4.    ORDER (to keep the Status Quo) that Bridge Housing Ltd , the First Respondent during the pending Human Rights claim shall take all necessary actions/works , to provide all required “ the goods , facilities and services “ to warranty to the Applicant fully functional access to the Commonwealth provided emergency 000 signal and all other “fixed-line end –point” signals to her unit 26 for her to be used , signals as the land-line phone , internet etc carried by the cables etc.

5)    Oder that IF the Respondent do not comply with the order 3, 4 the Applicant is given a right on the short notice to engage a duty judge additional urgent orders .

6)    Order that the Applicant is granted the rights issue a Subpoena on the Telstra Pty Ltd for the 2020 March-April documents she require for her Human Rights pending matter .

7)    Any other orders necessary in this application.

46    The form of Application thereafter went on to express the “Grounds” upon which relief was sought (in part) as follows (without alteration):

GROUNDS ON WHICH THE s 46 PP ORDERS ARE SOUGHT ARE :

THE AHRC COMPLAINT LODGED 08/07/20 IS INCLUDED TO THIS APPLICATION

1)    the Applicant is a person with disability (PWD) as defined by the UN Conventions and the DD Act Cth , and WHO and the Commonwealth laws. The disabilities are of physical health ( 2 lungs , heard , asthma etc ) and her safety , welfare and standard of living are highly depend on the access to the National Emergency 000 Commonwealth service phone fixed – land- line and all other Government’s phone services to her unit 26 she live in for 22 years .

2)    the Applicant is under the definition of the Age Discrimination Act Cth a Senior Citizen of the age group over 60 with the special needs and statutory rights given by the Age related laws and policies , including Policies related to the access to the fixed-line end=point telecommunications at the person’s Accomodation , her unit 26 . .

3)    The Respondent refused since 12/02/20 ( was notified on the disability discrimination matter at 30 min oral first claim face –to face) to comply with any Federal laws ,with the Commonwealth or State disability Policies , Disability Standards , Rules etc , and no with the Commonwealth ratified UN Telecommunication 1947 Convention s 28 , 32, 33 .

4)    The respondent’s conducts , actions and omissions place the applicant in daily real and foreseeable danger to irreparable damages and losses , including avoidable personal injuries , loss of opportunity to call 000 Emergency , to a timely medical , fire or social services of the Government .

5)    It is well foreseeable that unless Federal Court make an orders preventing the respondent to act as it does the foreseeable serious , irreparable damages are unavoidable

6)    The respondent have a very good actual knowledge since 2017 that the Applicant is a person with disabilities and , is a Senior Citizen ( 1957 dob) and have a special needs related to her disabilities and the age . The applicant is the commonwealth’s client in relation to her DD Act s 25 defined “ Accommodation “ and disabilities .

Same apply in the relation to the AD Act Cth

7)    the respondent by its conducts in 2020 has placed and continue to place the Applicant’s life in foreseeable danger . her personal property in danger by depriving her an access to the Commonwealth provided National Emergency 000 fixed line signals and all other phone connections she require for her disabilities on the daily basis .

8)    The Applicant has been deprived by the Respondent during the Covid-19 National Emergency Orders in March –April 2020 specifically , and to date , to have Telecommunications “end-point “ functions at her unit 26 , so as to be able to have Covid-19 safe isolation as the Commonwealth laws were requiering all persons to do , and specially the person on the high risk class of senior residents and disable with lungs/heard etc conditions .

The Applicant belong to the very high risk class in relation to the Covid -19 .

9)    when the Applicant took the actions to mitigate foreseeable damages and suffered monetory loss the Respondent refused to date to compensate her . The conducts of the respondent violate DD Act and AD Act and Human Rights of the Applicant .

Sections 46PO & 46PP

47    Sections 46PO and 46PP of the Human Rights Commission Act assume relevance.

48    Section 46PO provides for the making of an application to this Court where a complaint to the Commission has been terminated. Section 46PP provides for the making of an application to this Court to maintain what is there referred to as the “status quo” prior to the termination of a complaint.

49    Section 46PP provides as follows:

Interim injunction to maintain status quo etc.

(1)    At any time after a complaint is lodged with the Commission, the Federal Court or the Federal Circuit Court may grant an interim injunction to maintain:

(a)    the status quo, as it existed immediately before the complaint was lodged; or

(b)    the rights of any complainant, respondent or affected person.

(2)    The application for the injunction may be made by the Commission, a complainant, a respondent or an affected person.

(3)    The injunction cannot be granted after the complaint has been withdrawn under section 46PG or terminated under section 46PE, paragraph 46PF(1)(b) or section 46PH.

(4)    The court concerned may discharge or vary an injunction granted under this section.

(5)    The court concerned cannot, as a condition of granting the interim injunction, require a person to give an undertaking as to damages.

In Wilson v Britten-Jones [2019] FCA 747, Nicholas J summarised the effect of this provision as follows:

[42]    Section 46PP(1) is the source of the Court’s jurisdiction to grant an interim injunction in respect of a complaint lodged under s 46PP(2) of the AHRC Act before it has been terminated. However, it does not confer jurisdiction on the Court to grant an interim injunction in support of the applicant’s case on grounds unrelated to the complaint lodged by the applicant with the Commission. The Court may only grant an injunction under s 46PP(1) in order to maintain the status quo, as it existed immediately before the complaint was lodged (subpara (a)), or to maintain the rights of any complainant, respondent or affected person (subpara (b)). It is clear that “the rights” referred to in subpara (b) of s 46PP(1) are rights under the AHRC Act which may ultimately be recognised or enforced by orders made by the Court pursuant to s 46PO(4).

50    The purpose of the section is “to protect the complaint-making and resolution process”: Daccache v BOC Limited [2020] FCA 485 (“Daccache v BOC”). Justice McKerracher there relevantly observed:

[30]    I consider that the purpose of s 46PP is to protect the complaint-making and resolution process. The mediation role of the Commission is facilitated by the interim preservation of the status quo, ensuring in an appropriate case, as close to a level playing field as possible, while attempts to achieve a conciliated outcome are pursued.

His Honour there also previously referred with approval to the following observations of Besanko J in Carlsson v Ford [2019] FCA 584, (2019) 371 ALR 382 at 390:

[28]    … It seems to me that the two powers (ie, ss 46PO(6) and 46PP) operate in two different contexts. Section 46PP is designed to empower a court to grant relief in an appropriate case to an applicant who has a complaint pending and by reason of that fact is unable, at least in the ordinary case, to bring substantive proceedings in the Court. The section provides that an applicant is not required to give the usual undertaking as to damages. The usual tests on an interim or interlocutory injunction must be applied having regard to that context. Of course, a claim without any merit would not form the basis for an injunction under s 46PP, but that is not this case. By contrast, a claim for an interim injunction under s 46PO(6) after proceedings have been commenced and pending the determination of the proceedings involves the usual tests for an injunction. At the risk of stating the obvious, an interim injunction might be granted under s 46PP, but on the complaint being terminated and a proceeding in the Court instituted, not under s 46PO(6).

It is there to be noted that Besanko J referred to there being a “complaint pending”.

The s 46PP application – the absence of jurisdiction & discretion

51    There are a number of reasons why Ms Reisner’s Application for relief pursuant to s 46PP should be dismissed – a principal reason being directed to whether her “complaint” falls within s 46PP and another going to factors relevant to the exercise of discretion conferred by s 46PP(1).

52    At the outset, s 46PP refers to a complaint that “is lodged with the Commission”. The purpose of the section is “to protect the complaint-making and resolution process” (Daccache v BOC [2020] FCA 485 at [30]) and requires there to be a complaint before the Commission which is “pending”.

53    On the facts of the present case, Ms Reisner maintains that it was on 8 July 2020 that she made a complaint to the Human Rights Commission. But inquiries made by the Senior Housing Manager for the Respondent (Ms Jonelle Blaney) of the Commission exposed the responses to the correspondence forwarded by Ms Reisner to the Commission. On 12 February 2021, the Commission responded to Ms Blaney by email stating that it was “unable to confirm or deny if a complaint [had] been lodged with the Commission”. A further inquiry was made by Ms Blaney which prompted the following email on 15 February 2021 from the Supervisor of the National Information Service for the Commission, namely:

Dear Jonelle,

Thank you for your email below.

I can confirm that the Commission did receive correspondence from Ms Reisner in 2020.

I can also confirm that the Commission did not accept Ms Reisner’s correspondence as a complaint under section 46P of the Australian Human Rights Commission Act 1986 (Cth) (AHRCA) at the time and nor did the Commission commence an inquiry under section 46PF of the AHRCA.

If you have any further questions you may contact …, Senior Executive of the Investigation and Conciliation Service on …

(formal parts omitted)

These two emails were the only correspondence received by the Respondents from the Commission as at 4 March 2021 in respect to Ms Reisner’s 8 July 2020 “correspondence”.

54    Leaving aside any question as to whether Ms Reisner bore the legal onus of establishing the jurisdiction of this Court, in the face of the fact that:

    the Respondents have received no communication from the Commission in respect to Ms Reisner’s application to it on 8 July 2020; and

    the Commission maintains that it did not accept the 8 July 2020 “correspondence” as “a complaint” and has not commenced any inquiry,

it is concluded that for the purposes of s 46PP(1) of the Human Rights Commission Act that no “complaint” has been “lodged” by Ms Reisner with the Commission. It is further concluded that there is presently pending before the Commission:

    no “inquiry” into whatever may have been the substance of the matters sought to be raised by Ms Reisner with the Commission.

55    Rejected are the submissions made by Ms Reisner that the completion of the form titled “Australian Human Rights Commission – COMPLAINT FORM” was necessarily to be regarded as a “complaint” within the meaning of and for the purposes of s 46PP(1) of the Human Rights Commission Act. Also rejected is her submission that the Supervisor of the National Information Service for the Commission had no authority to make the statements in the email forwarded on 15 February 2021. Just as Ms Reisner cannot unilaterally elevate her completion of a “form” into the status of a “complaint” for the purposes of s 46PP(1) of the Human Rights Commission Act, it is equally the case that the Commission itself cannot unquestioningly deny communications to it from their status as a “complaint” if that is how in law they are to be properly characterised. But there is nothing before the Court which provides any basis for questioning the statements made in the 15 February 2021 email from the Commission.

56    Section 46PP thus confers no jurisdiction upon this Court to make any order seeking to maintain the “status quo”. There is simply no “complaint”; no complaint that is the subject of any inquiry before the Commission and no “complaint” that is “pending” (Carlsson v Ford [2019] FCA 584 at [28], (2019) 371 ALR at 390); and no necessity “to protect the complaint-making and resolution process” (cf. Daccache v BOC [2020] FCA 485 at [30]).

57    That is a sufficient basis, with respect, upon which Ms Reisner’s substantive proceeding should be dismissed.

58    But s 46PP(1) confers a discretion – the Court “may” make an order. The exercise of that discretion provides further reason for the refusal of relief, assuming the Court had jurisdiction.

59    Even had this Court the jurisdiction in which to make any order pursuant to s 46PP of the Human Rights Commission Act or s 32 of the Federal Court of Australia Act 1976 (Cth), the discretion conferred by s 46PP(1) would most probably have been exercised adversely to Ms Reisner.

60    It may be doubted whether any favourable exercise of that discretion would preserve the status quo or put Ms Reisner in a far better position than she occupied as at the date she made her complaint to the Commission in July 2020. It is sufficient to note that the state of the telephone services prior to July 2020 had been a long running source of complaint. The order sought in the s 46PP Application, on one view of it, would place her in a far better position, rather than being an order preserving the service as it was at the time of complaint. There is, moreover, reason to question whether there was any sustainable cause of action founded upon discriminatory conduct or any “violation of human rights”. Even assuming jurisdiction to do so, it was far from self-evident why any form of order would have been made to enforce whatever rights or entitlements Ms Reisner may have as a tenant or otherwise in circumstances where:

    the facts of relevance to at least some of the background factual issues had been the subject of independent resolution by the New South Wales Civil and Administrative Tribunal (Re Bridge Housing Ltd; Reisner v Bridge Housing Ltd [2021] NSWCAT); and

    Ms Reisner remained in default of her obligation to pay rent.

The First Respondent, it should be noted, has refrained from taking any action to terminate the tenancy of Ms Reisner throughout the conduct of the present proceeding.

61    Notwithstanding the variety of ways in which Ms Reisner claims to have been exposed to unlawful discrimination and a violation of her “human rights”, and her claims to have suffered and to suffer disability or disadvantage, it should finally be noted that she has effectively participated in the processes of this Court. Although a lawyer on her behalf would have unquestionably presented a far more focussed presentation of the facts, Ms Reisner did not present as a litigant lacking the ability to present her case.

CONCLUSIONS

62    It has been concluded that Ms Reisner has been unsuccessful in seeking an order that the Court be reconstituted or an order for the appointment of Pro Bono Counsel.

63    Her substantive application invoking s 46PP of the Human Rights Commission Act has also been unsuccessful.

64    The question of costs will be reserved. If an application is made for costs, that will be resolved on the papers.

THE COURT ORDERS THAT:

1.    The application for a stay is refused.

2.    The application for the reconstitution of the Court is rejected.

3.    The application for the appointment of Pro Bono Counsel is rejected.

4.    The Application under the Australian Human Rights Commission Act 1986 (Cth) filed on 22 October 2020 is dismissed.

Associate:    

Dated:    29 March 2021