Mathews v MacDonnell

REASONS FOR JUDGMENT 1 Mr Russell Gordon Haig Mathews (Mr Mathews) filed on 20 May 2011 a claim, under the Australian Human Rights Commission Act 1986 (Cth), alleging unlawful discrimination. He signified on the face of the claim that he was acting on his own behalf. At item (6) in the claim and in response to the question, "Do you have any special requirements? Please give details of any special requirements (eg wheelchair access, hearing loop, presence of personal assistant or carer), to enable this matter to proceed in Court", he made the following response: I am disabled with multiple disabilities. I have severe brain damage I have a hyper extended right thumb, and since I am right handed, this gives me a writing disability; almost a writing impossibility. I can barely hold a pen, and my handwriting, if that is an accurate term for it, is illegible. I also have bilateral long biceps tenosynovitis which is aggravated by lifting and carrying so giving me a "lifting and carrying disability", the effects of which I try to alleviate with a shopping trolley. I also have severe plagiocephaly, which I have had almost all of my life. I live a reclusive lifestyle as a method of dealing with my disabilities. In my reclusive lifestyle I had found by trial and error, better ways to act to alleviate to alleviate my disabilities. I shun new settings and circumstances as I will not know how to best act so as to alleviate the effects of my disabilities in those new environments. I am not an expert to know what difficulties I may experience and so do not know what my special needs will be. I am not prepared to guess what my special needs may be in a new environment and then be tied to those guesses. I believe it is necessary to consult experts who are aware of my disabilities and the effects of my disabilities as these experts will be better able to anticipate what difficulties I will experience in new or novel situations that are not my reclusive lifestyle. The determination of these matters is imperative to ensure I receive due process of a fair hearing. It is the duty of courts and government officials to ensure I receive due process. The onus is not on me, and the onus cannot be reversed. 2 Mr Mathews named three respondents. They are, respectively, Ms Jane MacDonnell (Ms MacDonnell), Mr Jim Walsh (Mr Walsh), and the Social Security Appeals Tribunal (the Tribunal). The latter two have indicated that they will abide any order of the court, save in respect of costs. In other words, they have made a submitting appearance. The only active party respondent is the first respondent, Ms MacDonnell. 3 In his claim, Mr Mathews alleges that disability discrimination was perpetuated by the respondents, as detailed by a response to him by Mr Walsh and Ms MacDonnell, to his advice of his being disabled and suggesting that the Tribunal should hold a preliminary hearing or conference to determine his special needs and how they would be accommodated, so that the Tribunal could fulfil its duty of due process, otherwise known as natural justice, to him of ensuring a fair hearing. I take this allegation from item 11 in Mr Mathew's claim. 4 Mr Mathews failed to appear at the first directions hearing in this matter. He had asserted a right to appear by telephone. He was not given any permission, exceptionally, to appear by telephone. In the ordinary course of events, in a case such as this, appearances would be made in person. Particularly where there is a litigant in person, it is sometimes the case, and the present, I apprehend, to be one, that the seriousness of a judicial proceeding and the responsibilities of acting accordingly are only brought home by personal appearance. The remoteness which can attend a telephone appearance can fail to bring home adequately to a litigant in person, the formality of a judicial proceeding, and the need to behave accordingly. 5 It did not seem to me in any way appropriate, notwithstanding the failure by Mr Mathews to attend in person at the first directions hearing, to make any orders other than procedural ones in respect of that particular non-appearance. By that, I mean, it did not seem to me appropriate, then and there, to strike out the proceeding on the basis of a failure to appear. Rather, the course which I took was to direct that the active party respondent file by a particular date such application, if any, as she may be advised in respect of default. The effect of that was to put Mr Mathews on notice that orders may be made in respect of the earlier default and any later default, which might have the effect of dismissing his application. 6 Mr Mathews was also separately put on notice that he should provide sworn medical evidence for the consideration of the Court in respect of his condition. No such evidence has been provided by him. Further, he has failed to appear today. Evident from the evidence read on behalf of the first respondent is an exchange of email correspondence between the Australian Government Solicitor, who acts for the first respondent, and Mr Mathews. In that exchange, Mr Mathews makes assertions, not all of which are cast in temperate language, in respect of the processes of executive and the judicial branches of government of this country. The noteworthy feature, though, of the exchange is, as I have already observed, an absence of sworn evidence from him as to his disabilities. 7 In those circumstances, there is nothing which would indicate, in terms of evidence, why it is that Mr Mathews is not able to attend in person. Further, looking at the statement which he makes at item 6, one might apprehend that any such evidence may well call into question whether he is at all able to have acted for himself in the filing of the application, given his reference to brain damage. I am prepared though, to assume in his favour that that is not the case, but rather, he has chosen not to file any medical evidence and chosen, for his own reasons, not to appear. That being the case, the question is what to do, having regard to the events of default which have occurred. 8 The application before the court makes reference to O 35A r 3 of the Federal Court Rules (Cth). It is an apt reference. That rule provides materially that if an applicant is in default, the Court may order that the proceeding be stayed or dismissed: see O 35A r 3(1)(a). It seems to me that this is a case where it is apt to dismiss Mr Mathew's substantive application on the basis of the defaults which have occurred. Mr Mathews is not able to conduct the entirety of this proceeding remotely, as it would seem he would wish. He has provided no evidence which would justify some sort of exceptional arrangement being made. At present, the presence of the case on the court list is therefore an embarrassment. 9 Mr Mathews has shown no disposition to prosecute it by appearing in person, filed no evidence which would explain why it is he has not appeared in person, and neither has he made any arrangements for any person legally qualified to appear on his behalf. 10 A dismissal of the case on the basis of default is not, of course, a dismissal of the case on the merits. It may well be that, upon reflection, Mr Mathews may wish to institute a proceeding afresh with the benefit of legal assistance. The order which I make today would not preclude his so doing, though he would, of course, still have to observe such time limits, if any, as attend the institution of a proceeding of the present kind. 11 For these reasons, then, the order that I make is that the application, being that made, by claim under the Australian Human Rights Commission Act 1986 (Cth), be dismissed. 12 The further order that I make is that the applicant pay the first respondent's costs of, and incidental to the proceedings, to be taxed if not agreed. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.