Ioannou v Commonwealth of Australia
[2012] FCA 1228
At a glance
Source factsCourt
Federal Court of Australia
Decision date
2012-11-07
Before
McKerracher J
Source
Original judgment source is linked above.
Judgment (9 paragraphs)
INTRODUCTION 1 On 9 August 2012, pursuant to programming orders made on 26 July 2012, the Commonwealth of Australia (the Department of Human Services) (the respondent) filed an interlocutory application for summary judgment pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) (FCA). The application was made on the basis that the originating application filed by Mr Tommy George Ioannou (the applicant) has no reasonable prospect of success. Alternatively, pursuant to r 26.01 of the Federal Court Rules 2011 (Cth) (the Rules), the respondent seeks summary judgment on the basis that the applicant's application: (a) has no reasonable prospect of success; (b) is vexatious or frivolous; (c) discloses no reasonable cause of action; and (d) is an abuse of process. 2 For the reasons that follow, the respondent's interlocutory application for summary judgment against the applicant must succeed with costs.
THE APPARENT NATURE OF THE ORIGINATING APPLICATION 3 The nature of the applicant's originating application is confusing, to say the least. The originating application filed on 12 March 2012 by the applicant, who is self-represented, is pursuant to s 46PO(1) of the Australian Human Rights Commission Act 1986 (Cth) (the AHRC Act) and names the Commonwealth as the first and only respondent. Section 46PO of the AHRC Act relevantly provides: (1) If: (a) a complaint has been terminated by the President under section 46PE or 46PH; and (b) the President has given a notice to any person under subsection 46PH(2) in relation to the termination; any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Magistrates Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint. (2) The application must be made within 60 days after the date of issue of the notice under subsection 46PH(2), or within such further time as the court concerned allows. (3) The unlawful discrimination alleged in the application: (a) must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or (b) must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint … 4 Citing the Disability Discrimination Act 1992 (Cth) (the DD Act) in its entirety, the applicant seeks $100,000 to $1,000,000 in 'compensation for harsh harassment, stress, injuries suffered' as a result 'persecution' and 'ill treatment' by Centrelink after he made his original complaint to the Australian Human Rights Commission (the AHRC). He also claims that when his mother was hospitalised, $20,000 - $30,000 was 'secretly transferred' by Centrelink from their joint deeming account. He claims that Centrelink has 'used every possible means to cause [him] stress [and] harm' and that their conduct has made him 'a cripple'. 5 In its helpful submissions filed in support of its summary judgment application, the respondent refers to the former complaint as the 'victimisation allegation' and the latter as the 'transfer allegation'. For consistency and brevity, I will adopt the respondent's terminology in these reasons. 6 Annexure A to the applicant's affidavit accompanying the originating application, sworn and filed on 12 March 2012, sets out a Notice of Termination purportedly issued by the Delegate of the President of the AHRC on 28 February 2012 (the Purported Termination Notice). In the Purported Termination Notice, the matter number is '2029377FC', the complainant is 'Tommy George Ioannou' and there are two named respondents, the 'Commonwealth of Australia (Department of Human Services - Centrelink)' and 'Hellenic Community Aged Care' respectively. (The second respondent appears to be unevenly copied and pasted into the Purported Termination Notice.) 7 Pursuant to s 46PH(1)(c) of the AHRC Act, the Delegate was satisfied that the applicant's complaint lacked substance. Relevantly in her reasons, the Delegate stated that to support a claim of direct discrimination on the grounds of disability, a complainant should provide, or point to, information that shows they were treated less favourably than another person in the same or similar circumstances, on the grounds of disability. The Delegate noted that while there was a significant reduction in the balance of the joint deeming account that the applicant shared with his mother between 5 March 2010 and 5 August 2011, from $20,955 to $3.94, the applicant had not explained why Centrelink was responsible for that reduction or how the alleged misappropriation of funds could be less favourable treatment on the grounds of disability. In relation to the applicant's allegation that his mother's pension payments had not been made into the joint deeming account, the Delegate reasoned that it was not clear how Centrelink's alleged failure to pay the mother's pension into the joint account was less favourable treatment of the applicant on the grounds of his disability. 8 The Delegate noted that if the applicant's mother was concerned about her pension payments, it was open for her to contact Centrelink directly or to nominate a third person to contact Centrelink on her behalf. In relation to the applicant's allegation that Centrelink reduced his pension payment after becoming aware that the applicant had lodged a complaint with the Commission (the victimisation allegation), the Delegate noted that the Department denied that there was any change to his pension payment since September 2011, and that the applicant had provided no evidence that his payment had been reduced. The Delegate further noted that the bank statements provided by the applicant were for the period 9 August 2006 until 5 August 2011, and that Centrelink was notified of the applicant's complaint on 15 November 2011. The Delegate also noted that the applicant was provided with a further opportunity to provide additional information to support his allegation of victimisation but nothing further was provided. The Delegate's reasons do not make any reference to the second respondent that appears in the Purported Termination Notice, Hellenic Community Aged Care. 9 Before turning to the respondent's summary judgment application, it is first necessary to give consideration to a preliminary matter. That is a request by the applicant for a further adjournment of this proceeding on medical grounds until December 2012. The applicant supports his application with a short medical certificate issued by his general practitioner. Notwithstanding the accepted authenticity of this medical certificate, for the reasons that follow, I am of the opinion that it is not in the interests of justice to grant the applicant a further adjournment until December or to otherwise amend the orders I made programming the respondent's summary judgment application for determination on the papers.