Federal Court of Australia

Praljak v State of Queensland [2022] FCA 572

ORDERS

THE COURT ORDERS THAT:

1.    Justice Logan is disqualified from the further hearing of the present proceeding.

2.    The hearing of the application for leave under s 46PO of the Australian Human Rights Commission Act 1986 (Cth) presently fixed to occur at Ipswich on 24 May 2022 be vacated.

3.    The hearing be adjourned to a date to be fixed.

4.    Costs of and incidental to today’s case management hearing, and those thrown away by the adjournment, be reserved.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

LOGAN J:

1    On 8 December 2021, Mr Adrian Praljak filed in the Court’s Queensland Registry an originating application under the Australian Human Rights Commission Act 1986 (Cth) (Australian Human Rights Commission Act). The respondent to that application is the State of Queensland. There were some additional and, with respect, quite unnecessary parenthetical additions to the naming of the respondent, namely Department of Justice and Attorney-General, Queensland Courts and Southport Magistrates Courts. Each of those is but, for the purposes of that proceeding, an emanation of the State.

2    However that may be, the proceeding is one in respect of which leave pursuant to s 46PO(3A) of the Australian Human Rights Commission Act is necessary.

3    On 3 February 2022, I made interlocutory orders in this proceeding to the end of the hearing, as a separate question, of the question of whether Mr Praljak ought to be granted leave to make the application? In so doing, one other of the interlocutory orders was that the hearing of the separate question be conducted on a date to be fixed at a venue to be appointed by the Court, taking into account Mr Praljak’s need for a ground floor courtroom, and in consultation with the parties. In the result, it proved possible, as it had in relation to an earlier case instituted by Mr Praljak, to secure a ground floor courtroom in the court complex at Ipswich, west of Brisbane. The courtroom was, and is, available on 24 May 2022.

4    Having secured the permission of the Chief Justice, in light of that courtroom availability, to stand out of the appeal list for May for that day, I directed that the hearing of the separate question occur on 24 May 2022 at the Ipswich courthouse.

5    In making provision for the hearing of the separate question to be in a ground floor courtroom, I took into account my particular experience in relation to an earlier proceeding instituted by Mr Praljak under the Australian Human Rights Commission Act, namely, Praljak v Department of Defence QUD 233 of 2021. My particular experience of that proceeding, over the course of its case management and the hearing of a separate question as to leave, was that it would not be in the interests of justice for that hearing to be conducted other than by appearances in person. That particular experience, which included the experience of a hearing at Ipswich on 14 December 2021, led me emphatically to a conclusion that the present proceeding would also not be satisfactorily conducted other than by appearances in person.

6    The earlier proceeding culminated in a judgment delivered by me on 14 December 2021, Praljak v Department of Defence [2021] FCA 1668 (Prajlak v Department of Defence). At the risk of over-generalisation, the essence of that proceeding concerned alleged disability discrimination on the basis of declining to recruit Mr Praljak into the Australian Defence Force. On 14 December 2021, for reasons which I gave that day, I declined to grant leave for the institution of that proceeding pursuant to s 46PO(3A) of the Australian Human Rights Commission Act.

7    An additional order I made that day, apart from the consequential dismissal of the application in light of the refusal of leave and costs, was that the time within which any application for leave to appeal be available or the filing of a notice of appeal, if such right exists, be extended to Friday 4 February 2022. So far as I am aware, there has not been any application for leave to appeal or any notice of appeal against the orders made that day filed.

8    The present proceeding, makes disability discrimination allegations against the State in respect of conduct relating to the conviction of Mr Praljak in the Southport Magistrates Court in respect of an offence of unlawful stalking. The claim as expressed in the originating application is as follows:

1.    Serious Multiple Forms of “Unlawful Discrimination” was committed to the Applicant, Mr. Adrian Praljak, on ongoing numerous occasions, spanning over many years since 01/04/2016 to Today’s current Date; 10/11/2021; Mr. Adrian Praljak, by The Respondent; The State of Queensland (Department of Justice and Attorney General) (Queensland Courts) (Southport Magistrates Court) pursuant to disability discrimination under the Disability Discrimination Act 1992 (Cth) (DDA).

2.    The Applicant, Mr. Adrian Praljak, was “Wrongfully Convicted” and “Unlawfully Legally Prosecuted of both; 1) DVO & 2) Unlawful Stalking. These Civil and Criminal offences were stagged by both The Respondents and by Other connected Parties EG; BOND UNIVERSITY LIMITED ACN 010 694 121/ MS Shiva Amiri from Toronto in Canada/QPS/MR. Alan Finch/Other Parties in Australia and Internationally.

3.    The Applicant, Mr. Adrian Praljak, did not receive the “Right To A Fair Trial” and also his Many Other Protected Human Rights, were breached on multiple occasions by The Respondents and their connected Associates/Parties in Australia and Internationally.

4.    The Applicant, Mr. Adrian Praljak, had to “Under Duress”; accept both the ; 1) DVO &, 2) Unlawful Stalking Charges and then subsequently the “Plea of Guilty” to Unlawful Stalking; Under Duress in both 2017 and in 2018 at the Southport Courts on The Gold Coast, in Queensland, Australia.

5.    The Applicant, Mr. Adrian Praljak, “Medical Evidence and “Medical Conditions” were not taken into account by the Magistrates/Justices in both DVO and Unlawful Stalking Court Hearings at The Southport Courts located on The Gold Coast, in Queensland, Australia.

6.    The Law of “Equity” was never applied to any of The Applicant, Mr. Adrian Praljak, DVO and Unlawful Stalking Cases by The Respondents.

7.    The Applicant, Mr. Adrian Praljak, and his family; spanning between the Dated of around; 01/06/2016 to current Date; 10/11/2021; were seriously “Unlawfully”; bullied, Coerced, Harassed, Targeted, had false Criminal Charges, Investigations conducted against him by The Respondents. The Respondents actions amount to serious Criminal Offences under both Australia; State and Commonwealth Legations/Acts and under The United Nations Charters/Legislation/Policies which Australia is currently party too. The Applicant, Mr. Adrian Praljak, would like; both; 1) The Respondents and their 2) Associates/Other Responsible Parties; to now be immediately compressively forensically Investigated, Charged, Prosecuted, jailed and then for The Applicant, Mr. Adrian Praljak, to be fully 100% Compensated; in all available Maximum ways under the Law.

8.    The Applicant, Mr. Adrian Praljak, became “Permanently Sensory Disabled” with Acrophobia; in early 2020 because of The Respondents “Unlawful Conduct”. The Applicant, Mr. Adrian Praljak, suffered other more serious compounded Mental and Physical Injuries; Severe Anxiety, Claustrophobia, possible other serious Medical Injuries which has not yet been Medically Diagnosed.

9.    The Applicant, Mr. Adrian Praljak, and also his “Family”; as a result has had His/Their Life Destroyed, his Australian and Global Lawyer/Solicitor career permanently destroyed, His/Their Financial Wealth Destroyed, His/Their Professional and Personal Relationships permanently Destroyed, has suffered in many other “Significant ways”.

10.    The Applicant, Mr. Adrian Praljak, and his “Family” have suffered other Major “Significant” losses over now many years and still continuing currently and into the future; as a result of The Respondent serious Unlawful Actions.

11.    The Applicant, Mr. Adrian Praljak, makes all other Favourable and Positive Claims against the Respondents; which their Honours Justices may advise and recommend during the Legal Case and Legal trial as it unfolds. As, The Applicant, Mr. Adrian Praljak, is a “Self-Representative Litigant” in this Legal Case and is also “Permanently Sensory Disabled” with Acrophobia, Severe Anxiety and Claustrophobia.

[sic]

9    The fixing of the hearing at Ipswich on 24 May 2022 having been communicated via the Registry to the parties, Mr Praljak came to direct correspondence by email to the Registry in which he voiced very particular concerns as to that venue. Those concerns arose from a change in residence on his part from Queensland to Victoria, and more particularly Melbourne, associated, as is said in the correspondence, with a need to provide assistance to his ageing parents. He also made reference in that correspondence to his present source of income being social security payments, and a consequential financial burden in his travelling from Victoria to Queensland for the purpose of attending the hearing at Ipswich.

10    The Crown Solicitor for the State has quite appropriately highlighted in submissions today the absence of any affidavit from Mr Praljak attesting to these facts or, for that matter, the underlying medical condition which informed the decision that a ground floor courtroom was essential if a hearing be in person. The position in relation to this proceeding is that there is no such affidavit. There was, however, evidence in the earlier proceeding, Prajlak v Department of Defence, which attested to these particular considerations. So the assertions made in the correspondence latterly directed to the Registry struck me as having a particular resonance.

11    There should, of course, also be an interlocutory application for a change in mode of hearing or venue. Sometimes the position with litigants in person is such that the rules of court can be other than a handmaiden of justice in relation to case management. With a hearing date looming, it seemed to me that it was far preferable to list the case for case management today rather than insist upon an interlocutory application for particular orders to be filed by Mr Praljak.

12    That listing having occurred, it then came to my attention that Mr Praljak had made a particular complaint to the Australian Human Rights Commission concerning the Court and me personally in relation to case management, both of the earlier proceeding concerning the Department of Defence and the present proceeding. The complaint was not one of which I was hitherto aware. That may perhaps be because, between 20 February 2022 and 18 March 2022, I was absent from Australia undertaking judicial duty in Papua New Guinea in the exercise of an additional commission I hold as a judge on the Supreme and National Courts of Justice of Papua New Guinea.

13    However that may be, the complaint was one which was dismissed by the Human Rights Commission. That having occurred, and as is his perfect right, Mr Praljak instituted a proceeding QUD136 of 2022 on 20 April 2022. In that proceeding, he gives the following details of claim:

1.    Both Respondents; EG 1) The Commonwealth of Australia ( Federal Court of Australia) and 2) His Honour Justice John Alexander Logan; ( Failed To make in certain areas; all reasonable adjustments and assistance for the Applicant; Mr. Adrian Praljak, in the previous Federal Court Case of Australia; QUD233/2021 - Praljak v Commonwealth of Australia Department of Defence & Anor.

2.    Due to the Respondents clear; “Negligence”, “Breach of Duty of Care”, Breach of “Ethics”, Breach of “The Law of Equity” and any Other Breaches of applicable relevant “Laws” EG : “Australian Human Rights Laws”, “United Nations Charters, Treaties, Laws,” that the Legal Case previous Justices Logan “Court Orders” now needs to be permanently “Legally Quashed and Set-Aside” and the Respondents now need to pay to the Applicant all of the following; the ”Maximum Financial Compensation”, and “Maximum Remedies”, “Maximum Compounded Financial Interests” and “Maximum Positive new Court Orders”; in favour of the Applicant; Mr. Adrian Praljak and all Other Positive Actions by the Respondents EG “Pay all past and current Legal Costs”, and “Maximum Compounded Interests”, and both “Private and Public Official Apologies to the Applicant”; Mr. Adrian Praljak. But not limited to.

3.    The Respondents clearly failed to make a realistic; “Legal Referrals” for the Applicant; Mr. Adrian Praljak, to get satisfactory or better; Pro Bono Legal both; Legal Advice and Legal Representation in the previous Legal Case of; QUD233/2021 - Praljak v Commonwealth of Australia Department of Defence & Anor. His Honour Justice Logan wrote a Legal Referral for the Applicant; Mr. Adrian Praljak to “LawRight” – which he, Justice Logan, was well aware that the Applicant; Mr. Adrian Praljak cannot use the organisation called “LawRight”; due to an existing serious conflict of interest EG The President of “LawRight” had a close relationship, commercial relationship/personal relationship; with Bond University Limited, which the Applicant; Mr. Adrian Praljak, is currently legally suing the Party; Bond University Limited. That His Honour Justice Logan could have wrote to; “The Queensland Bar”; requesting for a Silk’s or QC’s for their consideration to represent the Applicant; Mr. Adrian Praljak, Pro-bono. There were/still are, other reasonable and realistic solutions and options which his Honour Justice Logan failed to utilise, in order to try and genuinely help the Applicant; Mr. Adrian Praljak. Therefore His Honour has clearly acted “Unlawfully” and “Unfairly”.

4.    His Honour Justice Logan was well aware at all material times that; at no stage did the Applicant; Mr. Adrian Praljak; have or receive; “Legal Advice” for the legal case before The Federal Court of Australia in; QUD233/2021 - Praljak v Commonwealth of Australia Department of Defence & Anor and therefore was not on an “Equal Level Playing Field” with the Respondents, nor had the Applicant a “Fair” Legal case under The current Laws of “Equity Law” / & “Other Applicable Laws” and therefore, His Honour Justice Logan breached his; “Duty of Care” and “Other Duties” and also the “Reasonable Expectations of The Australian Public”, “Laws”, “Obligations”; pursuant to the Legal Precedent of; Gerard Vs Hope and Others [221/1964] (Tasmania). Which rightly concludes in this Legal Case Precedent; that the Judge/Justices/Judicial Courts; should then pay along the lines of; Strong, Maximum; Financial Compensations, Financial Compounded Interests, Past and Current Legal Costs, All Favourable Remedies, and Overturn their previous Court Orders in the Previous Legal Cases to the Self- Representative Applicant – or very closely, along those line’s. This Legal Case Precedent, says in other words, that Justices under Australian Law are not above the Law and must make Legal Case Decisions, well in line with what The Australian Public also expects as being reasonable and appropriate behaviour by the Judges/Justices/Judicial Courts and their actions pursuant to the Legal Precedent of; Gerard Vs Hope and Others [221/1964] (Tasmania). It’s common sense.

5.    The Respondents EG The Federal Court of Australia and His Honour Justice Logan; clearly failed to Disclose to the Applicant; Mr. Adrian Praljak; that a serious “Conflict of Interest” and “Relationship”; that he was/still is; the Justice Conducting Legal Cases on behalf of the ADF. His Honour Justice Logan is the; “President of The Australian Defence Force Discipline Appeal Tribunal”; Therefore it can be said, that for the legal case before The Federal Court of Australia in; QUD233/2021 - Praljak v Commonwealth of Australia Department of Defence & Anor ; “Serious Bias”, “Prejudices”, “Serious Conflict of Interests” , “Corruption”, “Duress”, “Other Grounds”; all affected both the Legal Case and Outcome for The Applicant Mr. Adrian Praljak pursuant to the Legal Precedent of; Gerard Vs Hope and Others [221/1964] (Tasmania). That the above is all not beyond the “realms of possibility”.

6.    The Respondents; Both; The Federal Court of Australia and His Honour Justice Logan; that for the legal case before The Federal Court of Australia in; QUD233/2021 - Praljak v Commonwealth of Australia Department of Defence & Anor ; failed to clearly take into account that the Applicant; Mr, Adrian Praljak; was/still is on; serious Psychiatrist Medication; “Setraline 100 MG” and “Propranolol” and “Valume”. That at all times for this Legal case and Other Legal Case; His Honour Justice Logan should have known that the right thing to do was organise; a Legal Counsel/ Legal Representation, as the Applicant; Mr. Adrian Praljak had/has current serious Health Conditions which may affect all decision making. Due to His Honour Justice Logan breach of “Duty of Care”, “Negligence’s”, breach of “Equity Law”, breach of “Other Laws”; he has directly and indirectly caused further significant damages to the health and also significant finical losses to the Applicant; Mr. Adrian Praljak; and therefore; the right thing to do is for His Honour Justice Logan and The Federal Court of Australia EG The Respondents; should now provide the following at the very earliest possible convenience; the ”Maximum Financial Compensations”, the “Maximum Finical Compounded Interests and “Maximum Possible Available Remedies”, and “Maximum Positive New Court Orders”; in favour of the Applicant; Mr. Adrian Praljak and also, all Other “Positive Actions” by the Respondents EG “Pay all past and current Legal Costs”, and “Maximum Compounded Interests”, and both “Private and Public Official Apologies to the Applicant”; Mr. Adrian Praljak. But not limited to. Re-Trials with Solutions to all of the above past Issues/Problems could also be on the table after the Applicant; Mr. Adrian Praljak receives from The Respondents all of the above Financial Compensations, Financial Compounded Interests, Remedies, New Court Orders and Other.

7.    Any “other Grounds/Orders” which the court thinks fit in favour of the Applicant; Mr. Adrian Praljak.

[sic]

14    That proceeding has not, so far as I am aware, been allocated to a docket judge, or in any event, it has not been allocated to me. However, having become aware of it, I considered it both appropriate and necessary to draw its existence to the State before today’s case management hearing, and then to invite today submissions on behalf of each of the parties as to whether, in light thereof, I should disqualify myself from further docket judge responsibility in respect of the proceeding against the State.

15    Mr Praljak raised no objection to my continuing as docket judge.

16    The State made reference to Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (Ebner) and what was there stated in relation to what would give rise to an apprehension of bias. The State’s submission was that the circumstances of the present case, including as they now did, the circumstance of my being named as second respondent in QUD136 of 2022, were not such as to give rise reasonably to an apprehension of bias having regard to what was stated in Ebner.

17    Ebner certainly remains a root authority in relation to the subject of apprehended bias. The most recent pronouncement by the High Court on that subject is to be found in Charisteas v Charisteas (2021) 95 ALJR 824 (Charisteas), at [11], in which a unanimous Full Court stated:

[11]    Where, as here, a question arises as to the independence or impartiality of a judge, the applicable principles are well established, and they were not in dispute. The apprehension of bias principle is that “a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”. The principle gives effect to the requirement that justice should both be done and be seen to be done, reflecting a requirement fundamental to the common law system of adversarial trial – that it is conducted by an independent and impartial tribunal. Its application requires two steps: first, “it requires the identification of what it is said might lead a judge … to decide a case other than on its legal and factual merits”; and, second, there must be articulated a “logical connection” between that matter and the feared departure from the judge deciding the case on its merits. Once those two steps are taken, the reasonableness of the asserted apprehension of bias

18    Of course, the position is that judges have a duty to discharge their commissions and should not lightly disqualify themselves.

19    Two cases are of assistance in deciding whether, in the present circumstances, and in the application of what was recently reaffirmed in Charisteas, the present case is one in which I should disqualify myself. Each of these cases is referred to in a helpful monograph Disqualification for Bias by Professor J. Tarrant, at 210 – 211.

20    The first case of assistance is Kumaragamage v Rallis No 2 [2001] NSWSC 710. In that case, a plaintiff had lodged a complaint concerning Austin J of the Supreme Court of New South Wales to the Judicial Commission of New South Wales. The primary focus of that complaint was in relation to an interim decision which his Honour had made. His Honour later considered, in light of that complaint, whether or not he should disqualify himself. He noted that the complaint to the Judicial Commission was essentially one of his findings of fact and, at [16], observed of that complaint that it should be “treated as a robust critique of my reasons for judgment”. His Honour further observed that robust “criticism could not disqualify the judge from hearing the complainant’s case, but it might be thought that intemperate ad hominem criticism could do so”: see [19]. His Honour held that the criticisms made in the complaint by the plaintiff “would not interfere with my assessment of the merits of the cases of the parties at the final hearing”, at [20]. His Honour further stated, at [21], that the:

21    … fact that intemperate arguments of this kind have been made cannot of itself be sufficient to require the judge to disqualify himself or herself from hearing the complainant’s case, otherwise a litigant could disqualify a judge simply by making a complaint about that judge to the Judicial Commission.

His Honour further stated, at [21], that a judge is “capable of putting such allegations out of his or her mind to the further determination of the case”. The conclusion reached by his Honour was that he was not disqualified. Nonetheless, notwithstanding that conclusion, his Honour directed that the case be transferred to a different judge of the Equity Division of the court.

21    Another case of assistance is Vasik v Vasik (2007) 38 FamLR 262. In that case, a complaint concerning the judge concerned had been made by one of the parties’ solicitors, arising from the judge’s conduct in another case. It fell to the judge concerned, Carter J of the then Family Court, to decide whether or not to disqualify herself. Her Honour stated, at 267, that the:

… absurdity of the proposition that I should disqualify myself because a complaint has been made about me can be seen very readily when one understands that every judge in this court throughout Australia could be disqualified (on the basis of that proposition) merely by a litigant or solicitor complaining about that judge.

22    The position in the present case may well be different in the event that there was but a complaint to the Human Rights Commission which had been considered and dismissed by the Commission. I readily accept that the mere fact of the making of a complaint does not in itself, having regard to what was said in the passage quoted in Charisteas, which takes up, inter alia, observations earlier made in Ebner, occasion a basis for disqualification.

23    If it were otherwise, it would be possible for a particular litigant to, in effect, pick and choose, according to the mere making of the complaint who, would come to exercise Commonwealth judicial power in respect of a particular case.

24    The position, however, in my view, is different where the judge concerned is named as a party to a proceeding to which one of the parties to another proceeding where that other proceeding commenced by a party to a subsisting proceeding on a judge’s docket.

25    Further, the particular claims made in proceeding QUD136 of 2022 are, in my view, of an ad hominem nature.

26    The risk with continuance in this proceeding is not just of an apprehension of bias in relation to Mr Praljak but also, in seeking to avoid being seen to have any such bias, not to give due weight and application to submissions made by the State as to why leave should be refused under s 46PO(3A) of the Australian Human Rights Commission Act.

27    There is also, in my view, notwithstanding the position advanced by the parties, a need for justice to be seen to be done. I do not consider that justice would be seen to be done by a judge who is a party to a proceeding separately instituted by one of the parties to the present proceeding. That, in my view, is not even a subject for waiver. Indeed, with respect, I very much doubt whether, on a correct application in the circumstances of what is stated in Charisteas, at [11], it is possible to waive what, objectively, is an impossible circumstance, in my view, for a judicial officer.

28    I regard the present case as one which patently gives rise, in the interests of the judicial power of the Commonwealth being seen to be exercised impartially to an obligation to disqualify myself. I have not taken that step lightly, particularly given that, in a little over two weeks, the case would otherwise fall for hearing.

29    The inevitable consequence of my disqualifying myself is that that particular hearing date must be vacated. It will be necessary for the proceeding to be allocated to a different docket judge. It will fall to that judge to decide whether or not to continue to have the case heard in person, and if so, in which venue or whether, according to the assessment made by that judge, it is possible in the interests of justice to hear the case by some remote means. It would not be appropriate for me to make any additional observations on that subject.

30    Nor, obviously, would it be in any way appropriate for me to make any observations as to the merits or otherwise of whether leave should be granted in the present case and, emphatically also, whether or not there is any merit whatsoever in proceeding QUD136 of 2022.

Associate:    

Dated:    17 May 2022