Margan v Australian Human Rights Commission

JUDGE: GRIFFITHS J DATE: 18 JUNE 2013 PLACE: SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 400 of 2013

JUDGE: GRIFFITHS J DATE: 18 JUNE 2013 PLACE: SYDNEY

Introduction 1 The applicant seeks leave to appeal in respect of two interlocutory judgments. 2 The proceedings have a rather complicated background. Before summarising the background leading up to the present applications, I should mention some issues which have arisen after the applicant filed his leave to appeal applications. 3 The applications for leave to appeal were filed on 7 March 2013 and were given a hearing date of 10 April 2013. On 3 April 2013 Cowdroy J listed the applications for hearing by the duty judge on 22 April 2013. On 5 April 2013, Edmonds J listed the matters for hearing before the duty judge in the week commencing 27 May 2013. Directions were subsequently made by me on 8 April 2013, with a view to the applications being heard before me as the duty judge on 27 May 2013. The applicant failed to file and serve his final outline of submissions within the prescribed time. Each of the respondents filed and served their outlines. The applicant advised the Registry over the weekend immediately preceding the hearing that he would seek a further adjournment, relying on his medical condition. When the matter was called for hearing on 27 May 2013, the applicant made an oral application for an adjournment. He said that he had been unable to obtain supporting medical evidence but expected to have that evidence before the end of the week. The Commonwealth did not consent to the adjournment. The other parties expressed no position one way or the other. After some discussion about the possibility of determining the applications on the papers, I granted the adjournment application on the basis of the applicant's indication that he expected to be able to present his applications at 9.30 am on 18 June 2013. I made further directions, including requiring the applicant to file and serve his outline of submissions (not exceeding five pages in length) and any further evidence (including the medical evidence referred to above) by no later than close of business on 31 May 2013. He was ordered to pay the costs thrown away by the adjournment. 4 Prior to the matter resuming for a hearing on 18 June 2013, the applicant filed an additional three affidavits in each of the proceedings. The first, which is dated 31 May 2013 and is sworn by the applicant, annexed a lever arch folder of materials, comprising what is described as "prior affidavit evidence" and "current affidavit evidence". The former category comprises a copy of Jagot J's judgment the subject of the applications for leave to appeal, the transcript of a hearing held on 20 August 2012 by Katzmann J, a copy of the applicant's original complaint to the Australian Human Right Commission (AHRC) and a copy of a further complaint dated 1 December 2010 to the AHRC. The latter category includes various additional documents relating to the applicant's AHRC complaints and the judicial proceedings arising from their determination. Also included is a copy of a press release dated 9 September 2010 which the applicant says is a summary of the expert witness he proposes to lead on the nature of gender. The lever arch folder was admitted into evidence, subject to relevance. 5 The second additional affidavit filed by the applicant is also dated 31 May 2013 and is sworn by him. It appears to be directed to providing some medical evidence in support of the applicant's underlying medical condition which led to his adjournment application on 27 May 2013. The evidence includes two reports dated 26 November 2012 and 24 April 2013 dealing with the applicant's health problems resulting from a violent assault on 9 August 2010. They do not directly address his health condition as at 27 May 2013. A third report dated 26 June 2012 confirms that the applicant sustained a traumatic brain injury from an unprovoked assault in late 2010. It indicates that, at that time, the applicant was preparing to sit a College of Law examination on 5 July 2012. None of these medical reports addresses the applicant's state of health on 27 May 2013. Nor does a further relevant report dated 11 May 2013, which the applicant tendered in the course of the hearing today. The applicant did not agree that he was not fit to present his case on 8 February 2013 when the matter was heard by Jagot J, nor did he suggest that he was unable to present his case today. 6 The third additional affidavit is said to be by an expert witness, Gina Wilson. The affidavit does not comply with Practice Note CM7 dealing with expert witnesses and the Commonwealth also challenged the expert qualifications of the deponent. Ms Wilson's affidavit describes how some people in the community cannot accurately be described as male or female, but are intersex. It draws attention to the fact that the Marriage Act makes no provision for persons who are intersex. 7 The three additional affidavits were admitted into evidence, subject to relevance. 8 At the outset of today's hearing, the applicant was granted leave to file amended applications for leave to appeal in respect of both proceedings. 9 The applicant also filed a copy of a notice under s 78B of the Judiciary Act 1903 (Cth) (the s 78B notice). He indicated that he had served a copy of that notice on the various Attorneys-General and that four had responded so far. He also indicated that he would seek to file an amended s 78B notice if his applications for leave to appeal were successful. I deferred consideration of the proposed amended s 78B notice until the outcome of the applications for leave to appeal were determined. 10 The lever arch folder accompanying the applicant's first additional affidavit also contained some written submissions which are said by the applicant to be relevant to some "foreshadowed claims of constitutional protection". I will return to deal with that subject below. 11 Finally, it might also be noted that the third respondent in NSD 399 of 2013 filed an outline of supplementary written submissions dated 7 June 2013. The other respondents were content to rely on their original written outlines.

Procedural background 12 By originating application filed on 21 August 2012 (the original application) the applicant brought proceedings pursuant to s 46PO(1) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act). The applicant alleged unlawful discrimination by reason of a Commonwealth/State marriage registration scheme which only allows the marriage registration of applicants of different sex, which the applicant alleged was in contravention of sex discrimination legislation. In particular, the applicant claimed unlawful discrimination under the Sex Discrimination Act 1984 (Cth) (SD Act) on the grounds of both "sex" and "marital status" (ss 5 and 6 respectively) in the areas of "provision of … services…" and "administration of Commonwealth laws and programs" (ss 22 and 26 of the SD Act). The originating application filed on 21 August 2012 followed on from a complaint which the applicant had lodged with the Australian Human Rights Commission (AHRC) on 17 November 2010 (the Complaint). 13 On 2 July 2012, a delegate of the President of the AHRC terminated the complaint pursuant to s 46PH(1)(c) of the AHRC Act on the basis that the complaint was misconceived and/or lacking in substance. 14 On 1 August 2012, the applicant commenced proceedings in the Court against the AHRC, the Attorney-General of New South Wales, the Attorney-General of Queensland and the Commonwealth. That application was in the form of a proceeding commenced under s 46PO(1) of the AHRC Act. The application came before Katzmann J on 20 August 2012. It emerged during the course of that hearing that the applicant's intention was to seek a review of the AHRC's decision dated 2 July 2012. The applicant said that he believed that he should be appealing the AHRC's decision to reject the complaint. Her Honour responded by saying that, if that was the case, the application needed to be made under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) and an extension of time would have to be sought. Her Honour pointed out that the applicant's existing application would not enable him to obtain a review of the AHRC's decision. In response, the applicant indicated that he would re-file the matter. After some discussion with the respondents as to whether they would consent to the applicant amending his existing application, her Honour determined to strike out the existing application, leaving it to the applicant to file a fresh application if he so wished. 15 On the following day (i.e. 21 August 2012) the applicant commenced two separate proceedings in the Court. The first (NSD 1203/2012) involved an application for review of the AHRC's decision. Although there was no reference to the ADJR Act, the application seemed to be one for judicial review (the judicial review proceeding). The President of the AHRC and the Commonwealth were named as respondents. On the same day, the applicant commenced separate proceedings (NSD 1205/2012) pursuant to s 46PO(1) of the AHRC Act in which he alleged unlawful discrimination on the grounds set out in his original complaint to the AHRC (the human rights proceeding). The respondents in the human rights proceeding were the Commonwealth Attorney-General, the Queensland Attorney-General and the New South Wales Attorney-General. 16 The judicial review proceeding and the human rights proceeding were allocated to Jagot J's docket. 17 On 20 November 2012, the Commonwealth filed an interlocutory application in the judicial review proceeding seeking to have the proceeding dismissed with costs on the following bases: (a) pursuant to r 30.01(1) of the Federal Court Rules 2011 (the 2011 FCRs), the Court should determine as a preliminary issue the question of whether the judicial review proceeding should be dismissed on discretionary grounds under ss 10(2) and/or 16 of the ADJR Act and then dismissed with costs pursuant to r 30.02(b) of the 2011 FCRs; or (b) in the alternative, under r 26.01(d) of the 2011 FCRs, the proceeding should be dismissed with costs as an abuse of the Court's process. 18 On 5 and 7 November 2012 respectively, the third and second respondents respectively filed interlocutory applications seeking orders that the human rights proceeding be: (a) summarily dismissed pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (FCA Act); or (b) struck out pursuant to rules 16.21(1)(e) or (f) of the 2011 FCRs. 19 Although the Commonwealth did not file a separate interlocutory application in the human rights proceeding, it supported the interlocutory applications filed by the second and third respondents in that proceeding. 20 Those interlocutory applications were heard by the primary judge on 8 February 2013. Her Honour heard extensive argument from the applicant, who has appeared throughout as a litigant in person. The applicant describes himself as a law graduate and in one of his affidavits sworn 31 May 2013, he gives his occupation as "Lawyer (certificate pending)". 21 In a reserved judgment handed down on 21 February 2013, her Honour upheld the interlocutory applications. Accordingly, in the judicial review proceeding, her Honour made orders to the effect that: (a) having ordered that the question whether the proceeding be dismissed on discretionary grounds pursuant to ss 10(2)(b) and/or 16 of the ADJR Act as a separate issue, her Honour determined that the proceeding should be dismissed on those discretionary grounds pursuant to r 30.02(b) of the 2011 FCRs; and (b) in accordance with the relief sought in the Commonwealth's interlocutory application, ordered the applicant to pay the Commonwealth's costs of the proceeding as agreed or taxed. 22 In the human rights proceeding, her Honour ordered that (a) the names of the first, second and third respondents respectively be changed to the Commonwealth of Australia, the State of Queensland and the State of New South Wales respectively; (b) pursuant to s 31A(2) of the FCA Act, the proceeding be dismissed; and (c) the applicant pay the respondents' costs of the proceeding as agreed or taxed. 23 I shall now summarise her Honour's reasons for making those orders, dealing with the judicial review proceeding first before turning to the human rights proceeding.

(a) Judicial review proceeding (NSD 1203/2012) 24 Her Honour accepted the Commonwealth's argument that it was inappropriate or an abuse of process for the applicant, having invoked the Court's jurisdiction in the human rights proceeding seeking in effect the finding of unlawful discrimination, to also seek in the judicial review proceeding an order seeking aside the AHRC's decision to terminate the complaint. Her Honour pointed out that there was a fundamental inconsistency or incompatibility between the two proceedings. The Court's jurisdiction in the human rights proceeding included the power to decide for itself on the facts which were before the AHRC whether there was unlawful discrimination. In those circumstances, the applicant could not also prosecute a judicial review proceeding of the AHRC's decision to terminate the complaint because that decision effectively grounded the Court's jurisdiction in the separate human rights proceeding. Her Honour concluded that the human rights proceeding constituted "adequate provision" made by the AHRC Act for review of the AHRC's decision for the purposes of s 10(2)(b)(ii) of the ADJR Act, thereby rendering the judicial review proceeding unnecessary and, indeed, futile. Her Honour concluded at [13] that, having availed himself of the review rights under s 46PO of the AHRC Act, it was inappropriate, being a form of abuse of process, for the applicant to also seek judicial review of the AHRC's decision. Accordingly, she made the orders described above, including an order that the applicant pay the Commonwealth's costs as sought by it in its successful interlocutory application.

(b) Human rights proceeding (NSD 1205/2012) 25 Her Honour dealt first with the second and third respondents' application to have the human rights proceeding summarily dismissed under s 31A(2) of the FCA Act. Her Honour summarised in [19] of her reasons for judgment, the relevant principles established in Spencer v Commonwealth of Australia (2010) 241 CLR 118. Her Honour made express reference in [20] to the High Court's "admonitions" regarding summary dismissal. In applying those principles to the circumstances here, her Honour pointed to the following matters as indicating that the human rights proceeding was doomed to fail and, accordingly, had no reasonable prospects of success. 26 Noting that the human rights proceeding depended on the existence of a reasonable prospect that unlawful discrimination might be established on either sex or marital status discrimination grounds, her Honour concluded that, for the following three primary reasons, the facts were legally incapable of satisfying the statutory tests of discrimination on the grounds of either sex or marital status. 27 First, as to sex discrimination, her Honour found that s 5 of the SD Act defined sex discrimination in a manner which depends on a comparison between the treatment of a person of one sex with the treatment of a person of the opposite sex. Since "marriage" is defined in s 5(1) of the Marriage Act 1961 (Cth) (the Marriage Act) as the union of a man and a woman to the exclusion of all others, voluntarily entered into for life, her Honour found that it necessarily followed that the union of a man and a man or a woman and a woman to the exclusion of all others, voluntarily entered into for life, is not a "marriage" as defined in s 5(1) and, accordingly, could not lawfully be registered by any State agency as a marriage. To put the matter another way, her Honour concluded that, in the terms of s 5, "there cannot be discrimination by reason of the sex of a person because in all cases the treatment of the person of the opposite sex is the same" in the sense that a man could not enter into the state of marriage as defined with another man, nor could a woman enter into such a state of marriage with another woman. 28 Secondly, as to the applicant's case concerning alleged discrimination based on marital status, her Honour noted both the definition of "marital status" in s 4(1) of the SD Act and also s 6 of the SD Act. Her Honour described the effect of these provisions as to make unlawful discrimination on the ground of marital status where a discriminator treating an aggrieved person less favourably than the discriminator treats or would treat a person of a different marital status in those circumstances that are not materially different. 29 Her Honour held that the marital status of a person as defined is irrelevant to the treatment about which the applicant complains. Noting again the definition of "marriage" in s 5 of the Marriage Act, her Honour found that the marital status of a man wishing to enter into a union with another man, or of a woman wishing to do the same with another woman, did not involve any alleged less favourable treatment on the basis of marital status. 30 The third matter which her Honour identified as being sufficient of itself to warrant the human rights proceeding being dismissed under s 31A(2) of the FCA Act related to the definition of "unlawful discrimination" in s 3(1) of the AHRC Act. That definition refers to "any acts, omissions or practices that are unlawful under" the nominated statutes, which include the SD Act. Applying the reasoning in Department of Defence v Human Rights and Equal Opportunity Commission (1997) 78 FCR 208 at 212-216 that the existence of a discretion was necessary for there to be an act or practice within the meaning of the definition of "unlawful discrimination", her Honour noted that the power of State agencies to register a marriage was limited to marriages as defined under the Marriage Act. Accordingly, in refusing to register same sex unions as marriages, her Honour held that State agencies were doing nothing more than complying with the definition of "marriage" imposed by the Marriage Act. This could not amount to those agencies engaging in any act or practice for the purpose of the definition of "unlawful discrimination". 31 For all these reasons, her Honour dismissed the human rights proceeding, noting that the applicant's grievance arose from the definition of "marriage", which could only be redressed by a legislative amendment.

Applications for leave to appeal: summary of some relevant principles 32 Although the applicant's amended application for leave to appeal in the judicial review proceeding (NSD 400/2013) states that leave to appeal is sought from the judgment of Jagot J, it is evident that he actually seeks leave to appeal only from the order made by her Honour that the applicant pay the Commonwealth's costs. The applicant seeks leave to appeal from that order on the basis that he claims that his judicial review application "was a court directed application on a litigation (sic) were (sic) the jurisdiction was uncertain, therefore, costs are unwarranted". 33 The applicant argues that costs ought not to have been awarded against him because his was "a test case in the public interest". 34 The principles governing the grant of leave to appeal from an interlocutory judgment are well established and are not in dispute. They are largely reflected in the following passage from the Full Court's decision in DÉcor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399: The first test, which relates to the prospects of the proposed appeal, is "whether, in all the circumstances, the decision is attended with sufficient doubt to warrant its being reconsidered by the Full Court". The second "is whether substantial injustice would result if leave were refused, supposing the decision to be wrong. … In my opinion, the sufficiency of the doubt in respect of the decision and the question of substantial injustice should not be isolated in separate compartments. They bear upon each other, so that the degree of doubt which is sufficient in one case may be different from that required in another. Ultimately, a discretion must be exercised on what may be a fine balancing of considerations. (citations omitted)" 35 A further relevant principle is that, where the practical effect of an interlocutory order is final, leave will usually be granted if there is any doubt about the decision at first instance (see Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564 at [43]). It is also appropriate to note that in a case where an applicant for leave is a self-represented litigant, the Court must be alert to ensure that there may be an arguable error of law which, with appropriate amendment or permissible assistance, could be put into proper form (see Atieh v Civil Aviation Safety Authority [2013] FCA 20 at [18]) per McKerracher J.)

(a) Judicial review proceeding (NSD 400/2013) 36 As noted above, the applicant seeks leave to appeal against the primary judge's costs order. He argues that he should not have been ordered to pay the Commonwealth's costs because he claims that he commenced the judicial review proceeding at the Court's direction and the jurisdiction was uncertain. He also says that such an order was inappropriate because his was a test case brought in the public interest. 37 The Court's power to order costs, including in a judicial review proceeding, is ultimately sourced in s 43 of the FCA Act (see also Part 40 of the 2011 FCRs). The exercise of that power involves judicial discretion. For the applicant to have any prospects of successfully appealing her Honour's exercise of that discretion against him, he must point to an error which is broadly embraced by the House v The King principles. In my view, the applicant has failed to establish that there is any such arguable error. 38 Moreover, I have great difficulty in seeing how the applicant has any reasonable basis for arguing that he commenced the judicial review proceeding because of a direction from the Court. The transcript of the hearing before Katzmann J on 20 August 2012 provides no basis for that submission. Her Honour struck out the original application and made it quite clear that it was a matter for the applicant himself to determine what course he would then take. Her Honour stated that she was not able to give him advice from the bench and she urged the applicant "to seek some legal advice before filing the next document". As noted above, the applicant elected the next day to file both the judicial review proceeding and the human rights proceeding. Seemingly, the applicant took those steps of his own accord and against a background of it being made clear to him during the course of the hearing on 20 August 2012 that there was a fundamental inconsistency between reviewing the AHRC's decision and bringing proceedings under s 46PO(1) of the AHRC Act. 39 As to the applicant's claim that his is a test case which is brought in the public interest, no material has been placed before me to suggest that the applicant raised this issue before the primary judge notwithstanding that he was on notice that the Commonwealth sought costs against him. It is clear that, even if the case was regarded as public interest litigation, that would not be determinative in its own right. The usual order as to costs is that they follow the event. The Court is entitled, however, to have regard to whether the conduct of the litigation discloses any special circumstance which might justify a departure from the ordinary rule as to costs, including where it involves a substantial degree of public interest (see Oshlack v Richmond River Council (1998) 193 CLR 72). As noted above, however, the applicant did not raise any such matter for consideration before the costs order was made, even though he had an opportunity to do so. Her Honour dealt with the matter as it was argued, as she was obliged to do. 40 For these reasons, I consider that the applicant should not be granted leave to appeal against the costs order made in the judicial review proceeding. His application should be dismissed and he should bear the Commonwealth's costs.

(b) Human rights proceeding (NSD 399/2013) 41 The applicant argues that this proceeding should not have been summarily dismissed because: (a) he contends that he has a "non-fanciful legal argument" which has reasonable prospects of success that the marriage registration scheme constitutes invalid service discrimination in that the scheme is a service, the same-sex marriage prohibition constitutes direct or indirect sex discrimination and the scheme is not appropriate and adaptive to a legitimate State interest; (b) whether the marriage prohibition scheme involves sex discrimination is the only outstanding substantive legal issue and is open to debate; (c) summary dismissal meant that the applicant is unable to adduce proposed evidence on substantive gender issues; and (d) summary dismissal was inappropriate without consideration of the substantive issue of indirect sex discrimination and negative sex stereotype enforcement. 42 Applying the relevant principles outlined above, I do not consider that this is an appropriate case to grant leave to appeal. 43 The first point to note is that the underlying policy issue as to whether the current legislative prohibition on same-sex marriage is meritorious is irrelevant to the Court's consideration and determination of the relevant amended interlocutory application. 44 Secondly, I accept the Commonwealth's submission that the central issue is whether the applicant's complaint of "unlawful discrimination", as defined, is incapable in law of being established on the facts relied upon by the applicant, having regard to the terms of the relevant legislative provisions of the SD Act and the AHRC Act. 45 As noted above, her Honour was well aware of the High Court's admonitions in Spencer concerning summary dismissal. In my view, the primary judge's decision is not attended by sufficient doubt to warrant it being reconsidered by the Full Court. Indeed, I believe that her Honour's decision is undoubtedly correct for the three essential reasons given by her Honour and outlined above. Without repeating those reasons unnecessarily, I consider that any one of the three matters relied upon by the primary judge is sufficient to demonstrate that the applicant's case based on unlawful discrimination is doomed to fail. 46 First, the matters relied upon by the applicant cannot amount to sex discrimination within the meaning of s 5(1) or (2) of the SD Act. The applicant did not adduce any evidence to suggest that he is treated less favourably than a person of the opposite sex who is also in a same sex relationship, let alone that any differential treatment is due to the applicant's sex, as opposed to his sexual orientation. Moreover, there was no evidence below to suggest that a relevant condition or requirement imposed on males (and not females) or on females (and not males) in a same sex relationship which has the effect of disadvantaging males or females. 47 Secondly, to the extent that the applicant seeks leave to appeal in respect of her Honour's rejection of his case based on "marital status", any such appeal is also doomed to fail. That is because the applicant adduced no evidence to suggest that he is treated less favourably than a person of a different marital status who may wish to marry their same sex partner, or that there is any differential treatment due to the applicant's marital status, as opposed to his sexual preference. Nor was there any evidence to indicate that a relevant condition or requirement is imposed on people in a de facto relationship in a same sex relationship compared with those in a different marital status. 48 Thirdly, the Court's jurisdiction is confined to dealing with allegations of "unlawful discrimination" as defined in s 3 of the AHRC Act. But in circumstances where State agencies refuse to register same sex marriages because of requirements mandated by the definition of "marriage" is s 5 of the Marriage Act, as a matter of law this cannot involve an "act" or "practice" within the definition of "unlawful discrimination" in s 3 of the AHRC Act. 49 The applicant's proposed expert evidence on gender does not advance his case for leave to appeal. He says that, without a trial of the substantive issues, he is denied the opportunity to adduce expert evidence to "demonstrate pivotal elements" of his case. In my view, the proposed expert evidence is irrelevant to the current application. The evidence was not adduced before her Honour and there is a very real question as to whether such fresh evidence would be admissible in an appeal. The applicant has offered no explanation as to why that evidence was not adduced previously. In any event, I admitted the affidavit subject to relevance. In my view, that expert evidence is irrelevant to any of the three grounds on which her Honour held that the case should be summarily dismissed. In particular, none of the expert evidence is directed to the applicant's personal circumstances. Rather, it is directed to the situation of persons who are intersex. 50 In my view, nor does the material relating to the applicant's "foreshadowed claims of constitutional protection" advance the relevant application for leave to appeal. The material relates to the following topics: (a) right of privacy; (b) freedom of religion; (c) bill of attainder; (d) right to life; and (e) freedom of association. 51 The applicant's originating application in the judicial review proceeding made reference to the human rights described. But the only aspect of her Honour's decision in the judicial review proceeding which is the subject of the amended application for leave to appeal relates to the order as to costs. Accordingly, the reference to those human rights issues takes the matter no further. The originating application in the human rights proceeding (NSD 1205/2012) did not raise any constitutional question or issue on its face and none was argued before Jagot J in this particular proceeding. In my view, the human rights issues described above are irrelevant to the amended application for leave to appeal as they do not purport to reflect any arguable error in the primary judge's decision to summarily dismissing the human rights proceeding in NSD 1205/2012. It is evident from the amended application for leave to appeal in NSD 399/2013 that the applicant apparently intends to seek leave to intervene in some proceeding in the High Court in order to address the Court on the issue of whether the same-sex marriage exclusionary marriage registration scheme infringes constitutionally protected human rights. 52 For all these reasons, leave to appeal in the human right proceeding should be refused, the application should be dismissed and the applicant ordered to pay the respondents' costs. I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths.