Praljak v Bond University Limited

Federal Court of Australia|2022-11-30|Before: McEvoy J

The requirement for the respondent, Bond University Limited, to comply with r 13.01(3) of the Federal Court Rules 2011 (Cth) be dispensed with in accordance with r 1.34.
The applicant's originating application filed 29 June 2022 be set aside and the proceeding dismissed as vexatious and an abuse of process.
The applicant's affidavit of 29 June 2022 be removed from the Court file.
The applicant pay the respondent's costs on an indemnity basis, to be fixed by a Registrar if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

MCEVOY J: 1 By an originating application filed 29 June 2022, the applicant brings proceedings against the respondent, Bond University Limited, complaining of discrimination under the Disability Discrimination Act 1992 (Cth) (DD Act), the Racial Discrimination Act 1975 (Cth) (RD Act) and the Sex Discrimination Act 1984 (Cth) (SD Act). The precise nature of the complaint is unclear, although it appears to be that an employee of the respondent touched or "pressed" the applicant's lower back in a public place sometime in 2017. It would seem from the originating application that the applicant also seeks leave to bring the application. 2 It is important to understand, however, that on 11 May 2021 the applicant commenced proceedings in the Supreme Court of Queensland seeking damages against the respondent in relation to a claim substantially the same as that which is the subject of the present application. The respondent filed an application in the Supreme Court seeking orders striking out the claim, and on 9 June 2021 the applicant's statement of claim was struck out. Orders were made in the Supreme Court requiring him to obtain leave to replead. 3 On 11 June 2021 the applicant filed a notice of appeal in the Supreme Court proceedings seeking to appeal the 9 June 2021 strike out orders. On 30 August 2021 that notice of appeal was itself struck out. The applicant required leave to file an amended notice of appeal and if he did so he was required to file such a document in draft. In the period of over 12 months that followed those orders the applicant did not seek such leave in the Supreme Court, nor did he discontinue the Supreme Court proceedings or indicate any intention to do so. On 9 September 2022 the respondent filed an application in the Supreme Court seeking to have the appeal struck out, dismissed, or permanently stayed. On 31 October 2022 the appeal was struck out and the applicant was ordered to pay the respondent's costs, including reserved costs. 4 Some time in June 2022 the applicant also made a complaint to the Australian Human Rights Commission (AHRC) against the respondent which alleged sexual harassment and victimisation under the SD Act. The AHRC complaint was terminated by a delegate of the President of the AHRC in June 2022 pursuant to s 46PF(1)(b) and s 46PH(1)(c) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) on the basis that an inquiry into the complaint was not warranted. By his present application the applicant now seeks to bring this complaint in this court. 5 In response, and by way of an interlocutory application dated 9 September 2022, the respondent seeks to have the applicant's originating application set aside and the proceeding dismissed pursuant to r 13.01 of the Federal Court Rules 2011 or in the court's inherent or implied jurisdiction as incompetent or an abuse of process; or alternatively to have the proceeding dismissed as vexatious or an abuse of process pursuant to r 26.01. The respondent seeks leave to bring this application after filing its notice for address of service pursuant to rr 1.32, 1.34 and 13.01(3). Also, or in the alternative, the respondent seeks that an affidavit filed by the applicant on 29 June 2022 be removed from the Court file or certain paragraphs be redacted. The respondent seeks its costs on an indemnity, or alternatively standard, basis. 6 It is the respondent's position that the originating application should be set aside as incompetent because the applicant was required first to obtain leave to commence the proceeding pursuant to s 46PO(3A)(a) of the AHRC Act. Moreover, it is said that the claims made by the applicant are an abuse of process because they seek to litigate matters that are substantially the same as those litigated in the Supreme Court proceedings, which is vexatious. It is also contended by the respondent that the claims made in the applicant's supporting affidavit are scandalous and embarrassing, and that they disclose no reasonable cause of action. 7 Although I am prepared to proceed on the basis that the originating application is competent in the sense that an application for the grant of leave can be discerned, for the reasons that follow there should not be a grant of leave. I accept that the proceeding in its entirety is an abuse of process. The originating application should be set aside and the proceeding dismissed.

THE REQUIREMENT FOR LEAVE 8 Section 46PO of the AHRC Act identifies the jurisdictional preconditions for making a claim in this Court under the AHRC Act. It is, relevantly in the following terms: (1) If: (a) a complaint has been terminated by the President under section 46PE, paragraph 46PF(1)(b) or section 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 Circuit and Family Court of Australia (Division 2), 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. (3A) The application must not be made unless: (a) the court concerned grants leave to make the application; or (b) the complaint was terminated under paragraph 46PH(1)(h); or (c) the complaint was terminated under paragraph 46PH(1B)(b). (4) If the court concerned is satisfied that there has been unlawful discrimination by any respondent, the court may make such orders (including a declaration of right) as it thinks fit, including any of the following orders or any order to a similar effect: (a) an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination; (b) an order requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant; (c) an order requiring a respondent to employ or re‑employ an applicant; (d) an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent; (e) an order requiring a respondent to vary the termination of a contract or agreement to redress any loss or damage suffered by an applicant; (f) an order declaring that it would be inappropriate for any further action to be taken in the matter. … [Notes omitted] 9 It will thus be apparent that the Court has no jurisdiction to hear an allegation of unlawful discrimination unless the conditions in s 46PO of the AHRC Act are satisfied: Picos v Australian Federal Police [2015] FCA 118 at [36] to [38]; James v WorkPower Inc [2018] FCA 2083 at [31]-[39] (Mortimer J).

Is the originating application competent? 10 The applicant's AHRC complaint was not terminated under ss 46PH(1)(h) or 46PH(1B)(b). It was terminated under s 46PF(1)(b) and 46PH(1)(c). Leave is therefore required for the applicant to bring his claim. The respondent submits that because the applicant has not obtained the leave required under s 46PO(3A) before filing the originating application, the originating application is incompetent. 11 Leaving to one side the question of whether the Court may grant leave under s 46PO(3A) with retrospective effect, I am prepared to proceed on the basis that by his application, and in particular the "interlocutory order" which is sought for leave, the applicant is seeking leave to proceed. To that extent I proceed on the basis that the application is competent.

Should leave be granted? 12 On the question of whether leave should be granted if the application is competent, the respondent refers to the discussion of s 43PO(3A) of the AHRC Act in James, and highlights the following matters: (a) that the purpose of the requirement for leave is to provide a "filter" to preclude pursuing complaints whose merits are disproportionate to the time and resources likely to be consumed by dealing with them in a proceeding (at [32] at [37], see also [43]); (b) that it is thus relevant to the decision to grant leave to consider whether the claims made are reasonably arguable (at [37]); (c) the range of other permissible considerations may also include (at [38]): (i) the circumstances of the parties: how important the subject matter of the complaint is to both the applicant and any respondent, and to their respective circumstances (at [38(1)]); (ii) the nature of the allegations made (including whether for example they involve allegations of continuing discrimination, or how serious the discrimination is alleged to be) (at [38(2)]); (iii) how thoroughly the AHRC has dealt with the merits of the complaint. For example, it may be that the AHRC's termination reasons thoroughly answer the alleged merits of a complaint and make it clear the complaint is not reasonably arguable (at [38(3)]); (iv) whether an applicant has delayed in complaining about the alleged discrimination and if so whether there are any explanations for that delay (at [38(4)]); (v) whether a respondent has attempted to address the allegations in any way outside the AHRC process and whether the allegations have been addressed or resolved in any way (at [38(5)]); (vi) the factual and legal complexity of the matters raised by the allegation of unlawful discrimination (at [38(6)]); (vii) whether the allegations raise issues of public importance, or of general application. The express power given to the President in s 46PH(1)(h) does not exhaust the circumstances in which this factor might be considered (at [38(7)]); and (viii) other factors that are often considered in leave applications - such as prejudice to a party (at [38(8)]). 13 The respondent submits that leave should not be granted for the following reasons: (a) first, the originating application asserts that it is in respect of a complaint of discrimination under the DD Act, the RD Act and the SD Act but that neither the originating application or supporting affidavit contains any identifiable allegations of discrimination against the respondent under the DD Act or the RD Act; (b) secondly, that beyond a single allegation which might be understood as a complaint of sexual harassment under the SD Act, the originating application and supporting affidavit take the form of a narrative of general grievances and allegations unconnected to discrimination under the DD Act, the RD Act and the SD Act, including allegations of "spying", blackmail, "fraud", and "Tax Evasion"; (c) thirdly, materially identical allegations have been made by the applicant in the proceeding commenced by the applicant in the Supreme Court, which the applicant has not discontinued; (d) fourthly, as to the single allegation concerning the touching of the applicant which might be understood to involve (asserted) sexual harassment: (i) the allegation is of a single instance of touching or pressing the applicant's lower back, in a public place, in front of the applicants' friends; (ii) the alleged conduct occurred five years ago, in 2017, and no timely complaint was made; (iii) the complaint does not raise any matter of public importance or general application; (iv) this particular complaint has no connection to the relief which is sought in the originating application, for over $29 billion in damages; and (v) the refusal of leave would not preclude the applicant from pursuing a claim in respect of this conduct if he is able properly to articulate such a claim, in the existing Supreme Court proceedings. 14 Thus, taking into account the relevant considerations set out in James, the respondent submits that it is manifestly not an appropriate case in which to grant leave under s 46PO(3A) of the AHRC Act. 15 I accept that each of the matters advanced by the respondent provide a cogent basis for the refusal of leave. When the fact that the applicant is seeking to agitate matters already raised in the Supreme Court proceeding is taken in account, the case for the refusal of leave and dismissal of the proceeding on the basis that it is an abuse of process becomes overwhelming. I turn now to consider this other aspect of the matter.

Relevant Principles 16 The court has power to dismiss or to strike out a proceeding under rr 13.01 and 26.01(1)(d) of the Rules if it is an abuse of process: see Tay v Migration Review Tribunal (2009) 178 FCR 1 at [21]; Energy Australia Yallourn Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2017] FCA 1245 at [177]. The court also has power to stay proceedings to prevent an abuse of process: R v Carroll (2002) 213 CLR 635 at 657 [73] (Gaudron and Gummow JJ); Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256 at 264 [7] (Gleeson CJ, Gummow, Hayne and Crennan JJ); UBS AG v Tyne (2018) 265 CLR 77 at 83 [1] (Kiefel CJ, Bell and Keane JJ); Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507 at 518-519 [25]-[26] (French CJ, Bell, Gageler and Keane J); Perera v GetSwift Ltd (2018) 263 FCR 92 at 121-123 [121] - [137]. 17 A proceeding will be an abuse of process where the court's procedures are being engaged to cause unjustifiable oppression to a party or where the engagement of the court's processes serves to bring the administration of justice into disrepute: see UBS AG at 83 [1]; Walton v Gardiner (1993) 177 CLR 378 at 393 (Mason CJ, Deane and Dawson JJ); Tomlinson at 518-519 [25] (French CJ, Bell, Gageler and Keane JJ); Nyoni v Shire of Kellerberrin [2019] FCA 530 at [23] (Colvin J); Ninan v Hannigan [2019] FCA 606 at [25] (Colvin J). 18 Undue vexation may arise from requiring a litigant, whatever its resources, to deal with claims in a later proceeding that should be dealt with in an earlier proceeding: UBS AG at 100 [58] (Kiefel CJ, Bell and Keane JJ). Further, as the majority said in UBS AG at [59]: For the Federal Court to lend its procedures to the staged conduct of what is factually the one dispute prosecuted by related parties under common control with the attendant duplication of court resources, delay, expense and vexation, as Dowsett J found, is likely to give rise to the perception that the administration of justice is inefficient, careless of costs and profligate in its application of public moneys. 19 A proceeding will also be an abuse of process where it is hopeless or "foredoomed to fail": see Walton v Gardiner at 393 (Mason CJ, Deane and Dawson JJ). While the power summarily to terminate a proceeding on this basis is to be exercised with "great caution" (see General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129-130 (Barwick CJ)), if on proper examination a proceeding is hopeless then it is appropriate to dismiss it as an abuse.

Should the proceeding be dismissed or stayed as an abuse of process? 20 The respondent submits that paragraphs 1 to 22 of the applicant's originating application and paragraphs 1-22 of the affidavit filed 29 June 2022 are substantially identical to one another, and are each substantially identical to allegations made in the statement of claim filed in the Supreme Court on 11 May 2021. 21 As has been mentioned, the statement of claim was struck out by the Supreme Court on 9 June 2021 and the Supreme Court ordered that the applicant must obtain leave of the court to replead, and that any application for leave to replead must attach a proposed statement of claim. The respondent submits that in the period of more than 12 months since that order was made the applicant has not sought such leave in the Supreme Court, nor has he discontinued the Supreme Court proceedings or indicated any intention to do so. Instead, he appealed the strike out decision, the application in relation to which was found to be fundamentally defective and the Queensland Court of Appeal struck out his notice of appeal on the basis that leave was required for him to file any amended notice of appeal. The appeal has now been summarily dismissed. 22 The respondent submits that the situation is thus that, at the time of commencing this proceeding, the applicant had on foot proceedings in the Supreme Court which were evidently intended to be a vehicle for advancing complaints of the very kind the subject of his originating application in this court. Whilst the applicant's statement of claim in the Supreme Court proceeding has been struck out and he is required to obtain leave of the Court to replead, it does not appear that the proceeding has been discontinued. The respondent submitted that the applicant seeks to advance this proceeding concurrently with leaving on foot his proceeding in the Supreme Court. It is apparent that the applicant does seek to advance substantially the same complaint in this court that is before the Supreme Court. 23 Furthermore, the respondent contends that the originating application fails to disclose a reasonable cause of action and is otherwise based on scandalous and embarrassing allegations. Such allegations, the respondent submits, include: (a) at paragraph 1(b) of the originating application a generalised allegation of defamation; (b) at paragraph 8 of the originating application: "…many law students, Australian, local and international students, were sexually intimate with the [r]espondents's [sic] law lecturers and tutors for grades and other special academic-related benefits"; (c) at paragraph 9 of the originating application: "…the [r]espondent was/is using in the past, currently and into the future, their students as both money and sex currency in Australia and globally…"; (d) at paragraph 16 of the originating application: "…all of these parties, have committed various, the most serious of, High Crimes, Fraud, Sexual Offences, White Collar Crimes, Tax Evasion, Bank Fraud, Corporate Crimes and many other types of the most serious offences under the law and on a Global Scale in multiple different global jurisdictions"; and (e) at paragraph 19 of the originating application: the [a]pplicant's then girlfriend "was pressurised by 'someone' from the [r]espondents (i.e. Bond University Limited) to agree to 'cooperate' with the Queensland Policy Service to file a domestic violence order application, including the unlawful stalking charge, against the plaintiff". 24 It is also relevant to note that the applicant seeks remedies such as the respondent paying his $400,000 tuition fees, $250,000 for "relevant expenses", $100,000,000 USD for lost profits and $29,950,000,000 USD for exemplary or punitive damages. I observe, in this connection, that it is an abuse of process to use the procedures of the court to contend for an amount of damages which is extravagant in the sense that it is unsupportable on any view of the law and facts in issue in the proceeding: Nyoni v Shire of Kellerberrin at [23] (Colvin J); Ninan v Hannigan at [25] (Colvin J). 25 The respondent submits that, taken as a whole, the originating application and supporting affidavit does not articulate a proper cause of action which may be brought under the AHRC Act. Instead it is submitted that the applicant seeks to use the processes of the court to advance improper, rolled-up allegations and complaints which bear no proper connection to the damages sought. The respondent therefore submits that it is appropriate to the court to dismiss the proceedings as an abuse of process. 26 I accept that the application the applicant seeks to bring is an abuse of process. No cogent argument to the contrary is advanced by the applicant. The quantum of the damages sought indicate that the application is an abuse, but it is also well settled that it is vexatious to require a litigant to deal with claims in a later proceeding which have, or should have, been dealt with in an earlier proceeding: UBS AG at 100 [58]-[59]. That the application itself is an abuse of process provides a further compelling reason for the applicant to be refused leave to pursue his claim in this court. In all the circumstances I accept that it would be appropriate to set aside the originating application and dismiss the proceeding as vexatious and an abuse of process.

APPLICATION TO DISPENSE WITH RULE 13.01(3) OF THE RULES 27 I note, finally, that the respondent also sought an order that pursuant to rr 1.32 and 1.34 it have dispensation from compliance with r 13.01(3) in relation to the filing of its interlocutory application. In the particular circumstances with which the respondent was confronted in this case I am satisfied that it is appropriate for there to be an order pursuant to r 1.34 dispensing with the obligation for the respondent to have complied with r 13.01(3).

DISPOSITION 28 In all the circumstances the applicant's originating application filed 29 June 2022 should be set aside pursuant to rr 13.01 and 26.01 as vexatious and an abuse of process. The proceeding will be dismissed and the respondent will have its costs on an indemnity basis, to be fixed by a Registrar if not agreed. An order for indemnity costs is appropriate having regard to the fact that the proceeding is an abuse of process. 29 Also, given the nature of the scandalous allegations contained in the applicant's affidavit in support, the respondent seeks, and I am satisfied should have, an order under r 29.03 that the affidavit be removed from the Court file. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McEvoy.

(DD Act), the Racial Discrimination Act 1975(Cth)

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