Federal Court of Australia

Przybylowski v Commonwealth of Australia [2025] FCA 862

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s originating application for leave to proceed pursuant to s 46PO(3A)(a) of the Australian Human Rights Commission Act 1986 (Cth) filed 26 March 2025 be dismissed with costs.

2.    The applicant have leave to file his submissions dated 25 July 2025 and supporting documents (49 pages in total).

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

REASONS FOR JUDGMENT

(Delivered ex tempore; revised from transcript)

STEWART J:

1    The applicant, Miroslaw Przybylowski, seeks leave of the Court pursuant to s 46PO(3A)(a) of the Australian Human Rights Commission Act 1986 (Cth) to make an application for unlawful discrimination to the Federal Court.

The applicant

2    The applicant is a resident of Australia but was born in Poland. He is the father of three children: two daughters born in Poland and a son born in Australia. He is divorced, and has two ex-spouses, being the mothers of the children. He owed spousal and child maintenance obligations to both mothers and their respective children, which, as will be seen, relates to the dispute before the Court.

3    The applicant is, and always has been in this proceeding, a litigant-in-person and has prepared all court documents either by himself or with the assistance of a Polish interpreter. I take that disadvantage faced by the applicant into account in assessing his claim.

Procedural history

4    This proceeding arises from the termination of the applicant’s complaint by a delegate of the President of the Australian Human Rights Commission on 3 February 2025. The delegate terminated the complaint on the basis of ss 46PF(1)(b) and 46PH(1)(c) of the Act. Those provisions enable termination of a complaint, including if “the President is satisfied, having regard to all the circumstances, that an inquiry, or the continuation of an inquiry, into the complaint is not warranted”. Consequently, leave under s 46PO(3A)(a) is required before the applicant’s application can proceed any further.

5    The applicant subsequently filed an originating application on 26 March 2025 seeking that leave, annexing the notification of termination and various other supporting documents. The materials annexed to the applicant’s written submissions and the originating application, as well as further written submissions and accompanying documents handed up during the hearing, detail the nature of the complaint which was terminated and is now pressed.

Nature of the applicant’s complaint

6    The applicant’s complaint concerned, in substance, his spousal and child maintenance obligations which were enforced in Australia. He complained that the existence of and enforcement of those obligations was in conflict with his rights under Australian anti-discrimination legislation. Although the original complaint referred to a variety of other domestic and international legal instruments (including, for instance, the Disability Discrimination Act 1992 (Cth)), it was only accepted as a complaint under the Sex Discrimination Act 1984 (Cth) due to insufficient particulars capable of grounding the discrimination alleged on the other bases.

7    Turning to the original complaint, the applicant disputed a decision by Services Australia to register and enforce an overseas spousal and child maintenance order rendered by the Lodz Regional Court in Poland in favour of one of the applicant’s former wives and her two children. The Polish court order was made on 28 September 2006, an application for registration of the order by Services Australia was received on 7 November 2013, and that application was accepted on 10 January 2014.

8    The applicant in his complaint averred that the registration by Services Australia was invalid, referring to a letter from the President of the Lodz Court of Appeal (ie, the court superior to the Regional Court) that “the Regional Court in Lodz did not intermediate in 2013-2014 in submitting a new application for enforcement of maintenance to the Australian party”. The applicant also referred to the existence of limitation orders from Polish courts in respect of both child support and spousal maintenance which was not taken into account by the Child Support Registrar.

9    The applicant also complained in relation to infelicities in the accounting of his child support account, including that Services Australia had missed reporting to the Polish authority certain sums of child support he had paid and that there had been unauthorised or unlawful modifications to the balance of his account by Services Australia.

10    Ultimately the applicant complained that Services Australia had treated him less favourably than his ex-spouse, thus constituting sex discrimination under the Act. However, the delegate did not consider on the information provided that the decision of Services Australia was because of the applicant’s sex or that he was treated less favourably because of it. Similarly, the various other grounds of discrimination advanced were not made out as discrimination on the relevant characteristics or not thought to warrant an inquiry. The complaint was terminated, as mentioned, on 3 February 2025.

Applicant’s submissions on leave

11    In his written submissions, the applicant generally reiterates the substance of his terminated complaint described above. The applicant also refers to the following additional matters:

    The respondent “mix[ing]” the applicant’s child support obligations to his daughters with his obligation to his son “into one case”;

    Child support being paid to one of his daughters in 2016 “under the fake evidence that she was continuing her education” when she had started work after finishing secondary school in 2008;

    Arrears being collected by the respondent when in fact he had “overpaid” by $35,979.67; and

    The respondent “redirect[ing]” child support to his daughters from his son.

12    More broadly, the applicant avers that multiple registrations on the Child Support Register have been “forged” by the Commonwealth, such that although there is only one Polish court order, he has been subject to multiple claims for arrears over time.

Respondent’s submissions on leave

13    The respondent submits that the application is an abuse of process, given that the matters the subject of the complaint occurred between 8-21 years ago and, as I will come to, they have been litigated many times before. The respondent notes that the applicant’s claims, insofar as they relate to international instruments, cannot be the subject of an application (and thus leave) under s 46PO. Further, the respondent submits that the claims are not reasonably arguable, are misconceived, and are generally unparticularised.

14    The respondent also specifically brings to the Court’s attention the fact that the underlying dispute has already been litigated in the federal courts. I consider this to be of particular importance in the circumstances of the case. I will come back to it.

Principles of leave

15    The approach of the Court when granting leave under s 46PO(3A)(a) was described by Mortimer J in James v Workpower Inc [2018] FCA 2083 at [37] as being “to consider … whether the claims made by an applicant are reasonably arguable, and are – at the least – not fanciful”. Her Honour observed that this was not a particularly high bar, the purpose of the provision being to “act as a filter to preclude complaints whose merits are disproportionate to the time and resources likely to be consumed by dealing with them in a whole proceeding, but not to impose a barrier of any substantively greater level”: at [37]. That formulation is consistent with the language used in s 46P(1A), which imposes the requirement for a complaint that “[i]t must be reasonably arguable that the alleged acts, omissions or practices are unlawful discrimination”. These statements were approved by the Full Court in Weir v Telstra Ltd [2023] FCAFC 196; 301 FCR 261 at [56] per Collier ACJ, Rangiah and Thomas JJ.

16    In Workpower, Mortimer J went on to identify a range of other permissible considerations at [38], including:

    The circumstances of the parties, such as the importance of the subject matter of the complaint to the parties;

    The nature of the allegations made;

    The thoroughness with which the Australian Human Rights Commission dealt with the merits of the complaint;

    Whether there has been delay in complaining about the alleged discrimination;

    Whether other attempts at remediation of the alleged discrimination have occurred outside the complaint process;

    The factual and legal complexity of the matters raised;

    Whether those matters raise issues of public importance or of general application; and

    The general principles of leave including prejudice to parties.

17    Her Honour cautioned that the Court should avoid embarking on “a detailed consideration and determination of the merits of the applicant’s underlying arguments about unlawful discrimination”: at [39]. Nevertheless, the Full Court in Weir noted at [58] that this ought to be qualified by the reasoning of the High Court in Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; 276 CLR 579 at [18]-[19], [28] and [41]; that is, the Court may appropriately engage in more than an “impressionistic assessment of the merits” and instead conduct a “detailed evaluation of the merits”, such as where there is lengthy, unexplained delay.

Consideration

18    As a threshold matter, it is not within the power of the Court to grant leave to the applicant to proceed under s 46PO insofar as his application relates to breaches of or obligations under international instruments. By way of salient example, the applicant claims breaches under the United Nations Convention on the Rights of the Child (1989) and the Framework Agreement between the European Union and Australia (2017). The applicant’s originating application and complaint invoke various others.

19    Even putting aside the question of the applicability of those instruments to the applicant’s circumstances in terms, as the respondent correctly notes, the terms of the Act do not permit such leave. Section 46PO(1) provides that following the termination of a complaint, an application may be made to the Federal Court “alleging unlawful discrimination by one or more of the respondents to the terminated complaint”. Subsection (3) requires that the unlawful discrimination alleged in the application must be the same or substantially the same as that in the terminated complaint or otherwise arise out of the same or substantially the same acts, omissions or practices. “Unlawful discrimination” is defined at s 3 as “any acts, omissions or practices that are unlawful under” certain parts of the Age Discrimination Act 2004 (Cth), Disability Discrimination Act 1992 (Cth), Racial Discrimination Act 1975 (Cth) or Sex Discrimination Act 1984 (Cth). The definition’s scope does not extend beyond the domestic statutory regime.

20    It is then necessary to turn to the residual sex and disability discrimination claims referred to by the applicant under the terms of the domestic statutes. Those matters, in the manner expressed by the applicant, appear to be without merit and not reasonably arguable on their face.

21    The applicant’s sex discrimination case is essentially that the defaults of the respondent with regard to the registration and enforcement of the Polish spousal and child maintenance orders against him are a form of sex discrimination – namely, that is being treated less favourably than his ex-spouse on account of his sex. That was also the understanding of the delegate, who concluded that the complaint was “not sufficiently set out or explained” and that what was provided did not “appear to support that decisions or acts of the Agency referenced in the complaint were because of your sex, or that you have been treated less favourably than a person of a different sex would be treated in the same, or not materially different circumstances.”

22    That accords with the view I have formed of the applicant’s sex discrimination claim. The acts, omissions or practices referred to by the applicant are those of Services Australia done in the course of administering its functions under the Child Support (Registration and Collection) Act 1988 (Cth). The legislation requires that where there is a “registrable overseas maintenance liability” arising by order of a court of a “reciprocating jurisdiction”, the Child Support Registrar is required to register the relevant liability on the Child Support Register upon the proper application of the payee or an overseas authority on their behalf: see ss 25(1), (1A), (2), (2A). A “registrable overseas maintenance liability” is a liability of a parent to pay a periodic amount for the maintenance of a child or a spouse arising under “a maintenance order made by a judicial authority of a reciprocating jurisdiction”: ss 4, 18A. The Child Support (Registration and Collection) Regulations 1988 (Cth) at Sch 2 designate Poland as a “reciprocating jurisdiction”.

23    It may be that the applicant has a remedy in administrative law enabling him to contest the registration and enforcement of the maintenance orders against him or remedies for the repayment in debt arising from incorrect accounting by Services Australia. For instance, it may be that there was in fact no valid registrable overseas maintenance liability, or there may be recourse to alternative options such as non-enforcement of liabilities under s 37B.

24    I venture no positive view on the merits of such claims. However, nothing on the material provided or the facts forming the substance of the complaint, even if indicative of real administrative misfeasance or default, objectively give rise to any suggestion of sex discrimination. It appears that the applicant asserts sex discrimination only because his ex-spouse who is of a different gender to him has been able to obtain the benefit of enforcing the maintenance orders made against him or because his daughters have had the benefit of payments due to his son. If that were sufficient on its own to ground sex discrimination, it might be thought that any act of administering maintenance collection could be challenged under the statute.

25    As for the applicant’s disability discrimination claim, it was not particularised in the complaint before the delegate and it remains unparticularised in the present application, although the applicant explained in the hearing that he suffers from an injury that limits his ability to work. Nevertheless, it is not possible to discern how the respondent engaged in direct or indirect disability discrimination as that is defined in ss 5 and 6 of the Disability Discrimination Act 1992 (Cth). Acknowledging that the applicant is a layperson and thus putting to one side his mistaken reliance on ss 11 and 122 as part of his disability discrimination complaint, there is nonetheless nothing which indicates how the respondent has discriminated on the basis of his disability other than, again, the very fact that he is disabled and the respondent has enforced, rightly or wrongly, the maintenance orders made against him.

26    I consider that the delegate of the Australian Human Rights Commission assessed the complaint of the applicant with a commendable thoroughness noting the lack of particulars described above, and provided cogent reasons as to why it was not appropriate to progress the discrimination claims further. In the circumstances, it would be “contrary to the legislative scheme to grant leave if the matter were considered by a Court to be without any merit”: Lu v University of New South Wales (No 2) [2022] FCA 1010 at [100] per Katzmann J quoting Matthews v Markos [2019] FCA 1827 at [37] per Abraham J.

Repeated litigation of the applicant

27    The respondent also submits that the applicant’s proceeding is an abuse of process and also that the passage of time between the events complained of in the present application render it inappropriate to grant leave. In light of the view I have reached concerning the merits of the claims themselves, and the lack thereof, it is not necessary to place much emphasis on these factors in concluding that leave should not be granted. However, it does raise an important issue more broadly concerning the applicant’s conduct in and use of the processes of the Court.

28    The applicant has been a serial litigant in the federal courts since at least 2015. The origin of these efforts is summarised in a judgment of Perry J concerning a previous proceeding of the applicant (Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473 at [14]), in which her Honour dismissed the applicant’s application for judicial review on a summary basis:

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

29    The applicant has since that time commenced a plethora of proceedings seeking judicial review of the decisions of various public bodies, including the Commonwealth Attorney-General, Australian Human Rights Commission, Child Support Registrar and Administrative Appeals Tribunal. A search of the Court’s records indicates there have been at least 11 such proceedings, including the present case. There are at least nine published judgments of both the Federal Court and the Federal Circuit and Family Court from a succession of judges in which various of the applicant’s proceedings have been dismissed, principally because of an absence of reasonable prospects of success. The substratum of facts relied on by the applicant for each of these proceedings is essentially the same as that in the current case – a challenge to the maintenance obligations that were owing to his ex-spouse in Poland, or their consequences, or how they have been administered by Services Australia or its predecessors. Although not necessary to recount here, each of those judgments describe the untutored approach of the applicant to litigation and the general absence of particulars capable of forming a reasonably arguable case for the relief that the applicant seeks.

30    It is abundantly clear that a disproportionate amount of judicial hearing time and court resourcing has been spent triaging the applicant’s ongoing efforts to contest those maintenance obligations and their effects. The applicant has on each occasion been without the benefit of legal representatives capable of providing an objective and informed perspective on the merits of the matters which he seeks to pursue.

31    These matters squarely raise whether the Court should now consider making orders against the applicant under s 37AO of the Federal Court of Australia Act 1976 (Cth) prohibiting the applicant from bringing any further proceedings in the Court in relation to his child and spousal maintenance obligations. I would embark on a procedure that could end in such orders were it not for one consideration – the applicant has one remaining active matter in the Court that raises an administrative law challenge in relation to his complaints, along the lines of what I have adverted to above. That matter is listed for hearing in 6 weeks’ time before a different judge of the Court. I know and can in any event say, nothing about the merits of that matter. It may be that they are good. I therefore consider the better course to be to let that matter run its course before s 37AO orders are further contemplated.

32    The respondent also seeks the costs of the proceeding and acknowledges that it has to get over the hurdle of ss 46PSA(5) and (6) of the Australian Human Rights Commission Act 1986 (Cth). Those subsections relevantly provide that an applicant must not be ordered by the Court to pay costs incurred by another party to the proceeding save in certain circumstances, one of which is if the Court is satisfied that the applicant instituted the proceeding without reasonable cause.

33    The respondent submits that there is no case authority directly on point but refers to s 570(2)(a) of the Fair Work Act 2009 (Cth) which is in similar terms. Subsection (1) of that provision provides that in the identified proceedings, a party may be ordered to pay costs but only in specified circumstances which include, relevantly, if the Court is satisfied the party instituted the proceeding without reasonable cause. Recently in Burt v University of Sydney (No 2) [2025] FCA 596, Owens J at [6]-[8] with reference to prior authority, identified relevant principles for the exercise of that costs discretion. They include that:

    The provision “operates to promote access to justice by ensuring that the spectre of an adverse costs order does not discourage litigants with genuine grievances, and an arguable evidentiary and legal basis for them, from advancing their claims in a complete and robust way”;

    The Court “ought be very careful” to exercise the discretion and “should not do so other than in a clear case”; and

    Costs “will only be capable of being ordered against a party where their case had ‘no real prospects of success or doomed to fail’”.

34    Taking those matters into account and, in particular, accepting that the discretion to award costs, limited as it is under ss 46PSA(5) and (6), is to be exercised only in a most clear case, I am satisfied it should be exercised in this case, for the reasons I have explained, including the many previous proceedings as well as the clear and detailed reasons of the Australian Human Rights Commission. The present case was brought without reasonable cause, no effort has been made to try and meet the points raised by the Australian Human Rights Commission in its reasons and instead the Court has been faced with a bombardment of documents, allegations and references to a variety of legal instruments, domestic, foreign and international.

35    In those circumstances, the originating application for leave must be dismissed with costs.

Associate:

Dated:    28 July 2025