Perry v Howard

REASONS FOR JUDGMENT 1 This is an application by the first and second respondents for the dismissal of the applicant's application. The applicant's application was filed on 13 April 2005, and an amended application dated 14 October 2005 was filed on 17 October 2005. The amended application was accompanied by a statement of claim dated 14 October 2005. 2 The first and second respondents' notice of motion dated 28 April 2005 is brought under O 20 r 2(1) of the Federal Court Rules. The first and second respondents claim that the application should be dismissed on the grounds that the proceeding does not disclose a reasonable cause of action, is frivolous or vexatious and is an abuse of the process of the Court. 3 There is also before the Court a notice of motion by the applicant filed on 12 May 2005 which I have treated as a motion for leave to serve his application on the third and fourth respondents out of the jurisdiction pursuant to O 8 of the Federal Court Rules. Background 4 The applicant filed an affidavit dated 4 May 2005 and a number of documents in support of his motion to serve out of the jurisdiction. From the documents and the applicant's submissions the following background information emerges. 5 In 2002, the applicant commenced two claims in the European Court of Human Rights. One of these claims is against the Republic of Ireland only and the second claim is against both the Republic of Ireland and Great Britain. 6 In his claim against the Republic of Ireland, the applicant claimed compensation in a sum in excess of IRŁ59 million. The claim is based on allegations that properties comprising a commercial property development at a location known as Boyne Court in Ireland that were owned by the applicant and his family were lost to his family by reason of the fraudulent conduct, conspiracies and unconscionable dealings of the Irish government. The applicant claims the fraud and conspiracy is compounding. 7 In his claim against both Great Britain and the Republic of Ireland the applicant claimed the sum of IRŁ12 million. This claim is based on allegations that the applicant's father Mr James Perry was arrested in 1957 by the Irish government and detained in the Curragh concentration camp in Ireland for some 2˝ years without having been charged with any offence or tried by any court. The applicant claims that he and his siblings suffered discrimination and distress and a violation of human rights by these actions. He claims that the British government shares responsibility for the deprivations which were suffered by his family. 8 The documents before this Court also show that the applicant believes that certain documents which were addressed to 'Interpol' and which related to the matters the subject of his claims in the European Court of Human rights were 'hijacked' by the Australian Federal Police. The applicant also believes that the Commonwealth failed in 1997 to give consular assistance to members of his family, including his wife and children, who the applicant says were Australian citizens and who were stranded in Ireland and in distress in relation to the loss of the Boyne Court properties. Further, the applicant believes that his complaints about the alleged 'hijacking' of documents and failure to accord consular assistance were not dealt with to his satisfaction by the first respondent, other Commonwealth ministers and Commonwealth agencies and that all of this is part of a continuing pattern of discriminatory and conspiratorial behaviour by the first respondent, Commonwealth ministers and Commonwealth agencies directed towards him because of his Irish background and his Republican beliefs. 9 In 2004, the applicant lodged a complaint at the Human Rights and Equal Opportunity Commission ('the Commission') under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) ('the HREOC Act'). The applicant's letters comprising the complaint are not before the Court. 10 By a letter dated 14 December 2004, the President of the Commission wrote to the applicant. The opening paragraph of the letter reads: 'I refer to your complaint lodged under the Human Rights and Equal Opportunity Act 1986 ('the HREOC Act'), dated 1 November 2004, and letters dated 1 December 2004, 7 December 2004 and 8 December 2004. You allege that your human rights have been breached by a number of Commonwealth agencies, the Prime Minister of Australia, and a number of overseas governments, including the governments of Ireland and England.' 11 In his letter, the President advised the applicant that he declined to inquire into the complaints of human rights violations against the Irish and British governments and other overseas agencies as the Commission did not have jurisdiction to inquire into those complaints. The President said that he had no option but to decide not to inquire into this matter under s 20(2)(c)(ii) of the HREOC Act on the basis that it is misconceived. 12 The President also referred in his letter to the applicant's complaints against the Commonwealth. The President said: '… You allege that the Commonwealth has breached various articles of the International Covenant on Civil and Political Rights ("the ICCPR"). You claim that the Commonwealth has denied you consular assistance and has conspired against you. You state that various documents have been hijacked by the Australian Federal Police when they were transferred to Interpol. Under the HREOC Act the provisions that relate to human rights require that the subject matter of the complaint arise from an act or practice of the Commonwealth or someone acting on behalf of the Commonwealth. Although the Commission can investigate alleged breaches of the ICCPR, you have not provided sufficient particulars of how various articles of the ICCPR have been breached in relation to you. You have identified articles contained in the ICCPR which you consider are relevant to your complaint. However, you have provided no details of specific actions by the Commonwealth that could constitute a breach of these articles. 13 The President went on to advise that he had decided not to inquire into the complaint of human rights violations under s 20(2)(a) of the HREOC Act as he was satisfied that the alleged acts or practises complained of are not inconsistent with or contrary to any human rights. 14 The President also said in that letter that he did not consider that the applicant had provided sufficient particulars for the correspondence to constitute a complaint of unlawful discrimination. The President said: '… Based on the information currently before me, I do not consider that you have provided sufficient particulars for correspondence to constitute a complaint under the Age Discrimination Act 2004, Disability Discrimination Act 1992, Racial Discrimination Act 1975 and Sex Discrimination Act 1984. In particular, you have not alleged discrimination on any of the grounds covered in this legislation. Therefore, at this stage the Commission will not be taking any further action regarding your broad allegations of unlawful discrimination. Should you provide any further information concerning your allegations of unlawful discrimination, the Commission will re‑assess this matter.' 15 During his submissions the applicant said that the two claims that he had submitted to the European Court of Human Rights had not been accepted as 'admissible' by that Court. The applicant said that he had since then been doing more work on the claims. The applicant said that the documents which were allegedly 'hijacked' by the Australian Federal Police whilst in transit to Interpol, had been returned to him about eight months ago. He said that he no longer had any need for the documents as he now 'had much more evidence'. The applicant said that he was now ready to submit the claims to the European Court of Human Rights. The application and statement of claim 16 As already mentioned, the first and second respondents filed their notice of motion for dismissal of the applicant's application on 28 April 2005. On 20 May 2005, the first and second respondents filed their outline of submissions in support of the notice of motion. I adjourned the first and second respondents' notice of motion to give the applicant an opportunity to file an amended application in response to the complaints identified in the first and second respondents' outline of submissions. On 17 October 2005, the applicant filed an amended application which was accompanied by a document entitled 'Statement of Claim and Court Order Sought'. The amended application is headed 'Application (Racial Discrimination Act 1975)' and states: 'A. Details of Claim On the grounds stated in the accompanying statement of claim the applicant claims: 1. Amended application warrants determinations of Australian Government Claim in Australian jurisdiction due to the documented history of bias, racial, political and criminal discriminations, illegal actions, injustices, conspiracies, subversions and human rights violations legally, professionally and politically exposed over period 1997 to 2005. 2. Immediate restoration of all Australian Citizenship Rights with necessary and appropriate consular assistance, support and protections warranted. 3. Australian Government responsible for transfer of British & Irish claims to respective Governments for 60 Day Resolutions or re‑submission to European Court of Human Rights - and remaining named joined, liable and responsible (Third Party) with British & Irish Governments until full satisfactory resolution and settlements of these revised, updated and outstanding Claims.' 17 The applicant's statement of claim states that the amended application sets out 'facts, reasons and causes of action that justify and warrant' the determination and settlement of the claim against the first and second respondents, restoration of all Australian citizenship rights and the restoration of consular assistance in relation to the return of two claims to the European Court of Human Rights. The statement of claim then goes on to state: 'With background information provided in initial Application, Notice of Motion and Submission it can be accepted this Amended Application is legitimate and valid under the Racial Discrimination Act 1975 and could also be considered, recognised, identified and defined under some of the following Acts as well: ‑ Human Rights and Equal Opportunities Act 1986; ‑ Migration Act 1958; ‑ Diplomatic and Consular Missions Act 1978; ‑ Protection Act 1996 ‑ Charter of United Nations Act 1945. With appropriate consular assistance, support and protections restored to Australian Citizens this would be relevant also to the British and Irish Claims under: ‑ Foreign Affairs and Trade (business/liaison/frauds); ‑ Business Migration Scheme; ‑ Special Circumstances Scheme; ‑ Key Person Protection Scheme; ‑ National European & International Acts, Laws, Articles; ‑ AND United Nations Declaration of Human Rights.' 18 The statement of claim then refers to the applicant having brought claims relating to the eight years of discrimination, injustices and violation of rights, to the attention of various European Union institutions. The statement of claim then provides: 'These EU Institutions and others are holding watching briefs especially on the safe official transfer of the British & Irish claims (Member States) back to the Governments and without 60 day resolutions, the updated re‑submissions back to European Court of Human Rights. The responsibility of Australian Government & Agencies to fully assist, support and cooperate with above is warranted after eight years of continuous racial, political and criminal discriminations, collusions, conspiracies and subversions...' 19 The statement of claim states that 'racial, political and criminal discriminations, collusions, conspiracies and subversions' include an 'illegal hijacking of Court related documents on official transfer in 2002' and also to the refusal of the first respondent, government agencies of the Commonwealth and the Australian Federal Police to account, assist or transfer the documents, and to the first respondent, ministers and agencies of the Commonwealth having engaged in 'conspiracy decisions'. 20 The applicant also states in the statement of claim that 'the applicant and his families have been "Special Targets" for atrocious violations of rights in three named jurisdictions'. 21 The statement of claim also includes argument, comment and rhetoric which it is not necessary to set out in these reasons. 22 Under the heading of 'Orders Sought', the applicant claimed compensation and exemplary damages against the first and second respondents in the total sum of AUD12 million, comprising AUD4 million for himself and AUD2 million in respect of each of the four other members of his family. Other relief claimed included immediate restoration of Australian citizenship rights, consular assistance support and 'Key Person Protection', appropriate Australian government cooperation with safe, efficient transfer of updated outstanding British and Irish claims and a claim that the first respondent provide 'full accountability and transparency for his Government's actions since 1997'. 23 Although there is no reference in the body of the application or the statement of claim to the grounds on which it is alleged that there has been racial discrimination, in another document filed with the Court, the applicant has stated that he has been discriminated against on the grounds of his 'race and national origin being Irish'. The first and second respondents' motion to dismiss the application 24 I deal firstly with the first and second respondents' application to dismiss the application under O 20 r 2(1) of the Federal Court Rules which provides: 'Where in any proceeding it appears to the Court that in relation to the proceeding generally or in relation to any claim for relief in the proceeding ‑ (a) no reasonable cause of action is disclosed; (b) the proceeding is frivolous or vexatious; or (c) the proceeding is an abuse of the process of the Court, the Court may order that the proceeding be stayed or dismissed generally or in relation to any claim for relief in the proceeding.' 25 In support of the argument that there is no reasonable cause of action disclosed in the amended application and statement of claim, counsel for the first and second respondents submitted that the applicant has made serious allegations of unlawful conduct against the first and second respondents but that there were no material facts pleaded such as to give rise to any identifiable cause of action that showed a 'real and genuine controversy'. Counsel for the first and second respondents submitted that the allegations were of such a nebulous nature and so ill defined that it was difficult, if not impossible, to: (a) determine the basis upon which the Court may have jurisdiction to deal with the matter; and (b) enable the first and second respondents to respond to the applicant's claims. Counsel for the first and second respondents also submitted that the application was frivolous or vexatious on the basis that it had no prospect of success and would be productive of serious and unjustifiable trouble for the first and second respondents. Further, the first and second respondents also argued that the application was an abuse of process because it was foredoomed to fail, apparently sought to ventilate the same issues that were before the Commission and it threatened a significant and unjustified commitment of public money in both Court resources and for the first and second respondents to respond. 26 In his oral submissions the applicant said that he wanted to proceed with his claim against the first and second respondents before proceeding against the British and Irish governments. The applicant said that if he recovered the AUD12 million compensation claimed against the first and second respondents, it may not be necessary to proceed with the claims against the third and fourth respondents. However, he did not intend to abandon his claim against those respondents. Reasoning 27 A court will exercise its summary jurisdiction to terminate an application with great caution and will only do so where it is clear that the applicant lacked a cause of action and that there was no real question of fact or law to be tried upon which the rights of the parties depended (Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91). 28 In Pridmore v Magenta Nominees Pty Ltd (1999) 161 ALR 458, Nicholson J referred to O 20 r 2 of the Federal Court Rules and said at 462, at [24]: ' … "A reasonable cause of action" means a cause of action with some chance of success, when considering the allegations of fact contained in the challenged pleading alone. The terms "vexatious" and "frivolous" have been used interchangeably: The Atlantic Star [1974] AC 436 at 464‑8, "Frivolous" has been held to be apt to describe proceedings in which the plaintiff's claim is so obviously untenable that it cannot possible succeed: Burton v Bairnsdale Shire (1908) 7 CLR 76 at 92. "Vexatious" has been held to be apt to describe an action which is a sham and which cannot possibly succeed: Willis v Earl Beauchamp (1886) 11 PD 59 at 63.' 29 In order for a party to plead a claim which discloses a reasonable cause of action that party must plead material facts which support each of the essential elements which comprise the cause of action leading to the relief claimed (McKellar v Container Terminal Management Services Ltd (1999) 165 ALR 409 at 419, at [25]). 30 In Munnings v Australian Government Solicitor (1994) 120 ALR 586, the High Court considered an appeal from the decision of Dawson J to strike out a writ and amended statement of claim and permanently stay the appellant's action. At first instance Dawson J had identified three possible causes of action from the matters pleaded but found that the pleadings did not disclose a reasonable cause of action in respect of any of those causes of action. He also found that the action was bound to fail and was therefore vexatious. Dawson J struck out the writ and statement of claim and made an order permanently staying the action. On appeal, the High Court said at 588: '… The statement of claim gave no particulars which might have given substance to any of these causes of action or which might have shown that there was a real and genuine controversy. It was a pleading that invited an application to strike it out.' 31 Further, the High Court said at 589: 'Dawson J was right in acceding to the application. Moreover, although a plaintiff is often granted leave to replead if a statement of claim is struck out, there are some cases where the plaintiff so misconceives the cause of action that the action ought to be brought to an end.' 32 I turn now to the applicant's amended application and statement of claim. In my view neither the amended application nor the statement of claim pleads material facts and matters disclosing a reasonable cause of action, which would invoke the jurisdiction of the Court. 33 As to the claim of the 'illegal hijacking' of the documents by the Australian Federal Police, the legal foundation of the claim is not readily identifiable. However, notwithstanding that no specific statute is identified, the pleading could, perhaps, be treated as an attempt to plead a breach of statutory duty. Even if the pleading was to be treated as such, the pleading does not disclose a reasonable cause of action. This is because there are no facts or matters pleaded in support of the bare assertion of the 'illegal hijacking'. The circumstances of the alleged 'hijacking' are not pleaded. Further, there is no allegation which pleads how any such interference with the transit of the documents has caused the applicant any loss or damage, let alone the loss and damage totalling AUD12 million that the applicant claims. Nor are there facts or matters pleaded which support the other heads of relief claimed. 34 The amended application and the statement of claim contain allegations of conspiracy ‑ a tortious claim which could be brought within the accrued jurisdiction of the Court, provided that the original jurisdiction of the Court was properly invoked. However, even if the original jurisdiction were to be invoked to provide a jurisdictional foundation for the conspiracy claim, there would be no reasonable cause of action in conspiracy disclosed in the amended application and statement of claim. A claim in conspiracy must be fully particularised. The statement of claim only makes bald general assertions of conspiracies 'by [the first respondent], Ministers, Attorney General and Government Agencies'. A pleading of conspiracy at this level of generality is unacceptable and does not disclose a reasonable cause of action. Further, as previously mentioned, no material facts are pleaded which identify the alleged loss suffered by the applicant, and there are no facts or matters pleaded which identify the causal chain between the alleged tortious acts and the applicant's alleged loss. Nor are there facts and matters pleaded which support the other heads of relief claimed. In my view the conspiracy claim does not disclose a reasonable cause of action. 35 The applicant also claims that ministers of the Commonwealth, including the first respondent, have wrongfully withheld consular assistance from the applicant and his family, on the basis of racial and political discrimination. The legal foundation of this claim is also not readily identifiable. However, the claim could perhaps be treated as an attempt to plead misfeasance in public office - a tort that could also be brought within the accrued jurisdiction of the Court, provided the original jurisdiction of the Court was lawfully invoked. However, the pleading falls well short of disclosing a reasonable cause of action of misfeasance in public office. That tort occurs where a public officer does an act which to his knowledge amounts to an abuse of office and thereby causes damage to another person. There are no facts pleaded which satisfy these essential elements of the tort. Indeed, no facts or matters are pleaded which disclose the specific acts or omissions relied upon, nor the basis on which it is alleged that relevant acts or omissions were 'targeted' at the applicant and his family on the grounds of the applicant's Irish origin and the applicant's support of republicanism. Further, as in relation to the other possible claims referred to above, there are also no facts alleged which plead the loss suffered by the applicant and the causal link between the allegedly tortious acts, the loss suffered and the damages claimed. In addition, there are no other facts or matters pleaded which would support the grant of any of the other relief claimed. 36 The amended application and statement of claim do not refer to any specific decision made by a Commonwealth officer under any statute such as might provide a possible basis for the exercise of jurisdiction of the Court under s 39B of the Judiciary Act 1903 (Cth) or the Administrative Decisions (Judicial Review) Act 1977 (Cth). Further, the heads of relief claimed by the applicant, namely, compensation and exemplary damages and relief in the form of, in effect, mandatory injunctions requiring the first and second respondents to bestow positive benefits on the applicant are not consistent with an applicant who is seeking judicial review of specific decisions made by any Commonwealth officer. There is, in my view, no reasonable cause of action pleaded in support of any a claim for judicial review of any decision by a Commonwealth officer. 37 There are also several references in the amended application and statement of claim to the Racial Discrimination Act 1975 (Cth) ‑ it being the applicant's case that he and his family have been the victims of racial discrimination on the grounds of the applicant's Irish origin. The HREOC Act provides a self contained scheme for dealing with complaints made in respect of racial discrimination (Re East, Ex parte Nguyen (1998) 196 CLR 354 at 365‑366). This Court has no jurisdiction to consider original complaints made under the Racial Discrimination Act. Under s 46PO of the HREOC Act a person is only entitled to apply to the Federal Court if his or her complaint is terminated under s 46PE or s 46PH of the HREOC Act. 38 It is clear from the letter of the President of the Commission dated 14 December 2004, referred to above, that the applicant made complaints to the Commission of 'unlawful discrimination' ‑ which would include complaints made under the Racial Discrimination Act. The President said in the letter that he did not consider that the applicant had provided sufficient particulars for his correspondence to constitute a complaint under, inter alia, the Racial Discrimination Act and left it open to the applicant to provide a more detailed complaint. As such the President did not terminate the complaint under s 46PE or s 46PH of the HREOC Act. Accordingly, there would be no basis for making any application to this Court under s 46PO of the HREOC Act. Further, as mentioned above, there is nothing in the amended application and statement of claim which can be construed as an application for judicial review of the 'decision' of the President not to regard the correspondence as a complaint. 39 Further, the President's letter of 14 December 2004 shows that the Commission declined to inquire into the applicant's complaints of human rights violations under s 20 of the HREOC Act. Accordingly, there is no basis on which the applicant could apply to this Court under s 46PO of the HREOC Act in respect of the Commission's actions in relation to his human rights claims. I have already found that the amended application and statement of claim cannot be construed as an application for judicial review. 40 It follows that there is, in my view, no reasonable cause of action disclosed in the amended application and statement of claim. I am also of the view that the pleadings do not show that there is any 'real and genuine controversy'. I, accordingly, strike out the amended application and the statement of claim. 41 The first and second respondents also argued that the application should be dismissed on the ground that it was frivolous or vexatious. In considering whether the application should be summarily dismissed on this ground it is legitimate for the Court to have regard not only to the amended application and the statement of claim but to any affidavit or other material which might be before the Court (Munnings v Australian Government Solicitor (1994) 118 ALR 385 at 389). 42 From information provided during the applicant's oral submissions, it is apparent that the applicant has not been precluded from prosecuting his claims in the European Court of Human Rights because of the 'hijacking' of the documents of which he complains. The claims which the applicant filed with the European Court of Human Rights in 2002 were rejected by that Court on the grounds that the claims were not admissible. Since then the applicant has been working on those claims with a view to resubmitting the claims. The applicant received the allegedly 'hijacked' documents back about eight months ago but he says that he no longer has any need for them because he now has 'much more evidence' in support of his claims. The applicant says that he is now ready to resubmit the claims to the European Court of Human Rights. 43 I have also had regard to the affidavit and bundle of documents which the applicant filed in support of his application for leave to serve out of the jurisdiction. The bundle of documents contain a letter from the President of the Commission dated 29 September 1999 advising the applicant that she would take no further action in relation to a complaint which the applicant had made against the Minister for Foreign Affairs and Trade under the Racial Discrimination Act because there was not sufficient evidence that the Minister had discriminated against the applicant on the grounds of his race or national or ethnic origin. There is also among the documents a set of guidelines from the Legal Aid Branch of the Attorney General's Department in relation to the 'Special Circumstances (Overseas) Scheme' but there is no evidence of the applicant having made application under that Scheme and no evidence of any decision having been made. Further, there is a note from the Attorney‑General's Department referring the applicant to the Department of Foreign Affairs. There are also letters of complaint to the first respondent dated 3 September 2004 and 25 January 2005 respectively and to the Minister for Foreign Affairs and Trade dated 9 July 2001. A perusal of the affidavit and bundle of documents does not reveal a basis on which any potentially viable cause of action founded on the complaints made by the applicant could be brought in this Court against any of the respondents. 44 In my view, the amended application is bound to fail. I would therefore dismiss the application on the grounds that the application is 'frivolous' within the meaning of O 20 r 2 of the Federal Court Rules. It follows that I am also of the view that no reasonable amendment to the application will resolve the inherent defects of this application and I would therefore refuse leave to re‑amend the statement of claim. Accordingly, I would also dismiss the application on the grounds that the amended application does not disclose any reasonable cause of action. It is unnecessary to consider whether the application constituted an abuse of process.