Praljak v Commonwealth of Australia

Federal Court of Australia|2022-11-30|Before: Stephen Gageler J, Logan J, McEvoy J

The applicant's claim 11 In his originating application, under the heading 'Details of claim under the [AHRC Act]', the applicant sets out, in a series of numbered paragraphs, the issues that form the substance of his claim. The first respondent submits, and I accept, that the allegations are not formulated in terms of elements of a claim of unlawful disability discrimination. Nonetheless, there appear to be three broad allegations. 12 First, the applicant alleges that the respondents failed to arrange pro bono legal advice and representation for him in other Federal Court proceedings he commenced, namely Praljak v Department of Defence (QUD233/2021), a disability discrimination proceeding in respect of which the second respondent declined to grant leave to proceed: Praljak v Department of Defence [2021] FCA 1668. More specifically, the applicant alleges that: (a) the second respondent was aware that at no stage did the applicant have or receive legal advice and he was therefore not on an "equal level playing field" with the respondents in proceeding QUD233/2021; (b) the second respondent made a referral for the applicant to seek the assistance of "LawRight" (an organisation that assists to match clients with pro bono lawyers), being "well aware" that the applicant could not use the services of LawRight "due to an existing serious conflict of interest" arising from the President of LawRight being in a "close relationship, commercial relationship/personal relationship" with Bond University Limited, which the Applicant was also suing; (c) the second respondent ought to have written to "the Queensland Bar" and requested that senior counsel consider representing the applicant on a pro bono basis; (d) the second respondent ought to have utilised "other reasonable and realistic solutions and options" in order to "try and genuinely help" the applicant; and (e) in failing to take these steps, the second respondent acted "unlawfully" and "unfairly" and in breach of his "duty of care", and in breach of the "reasonable expectations of the Australian public" pursuant to "legal precedent" established in Gerard v Hope [1965] Tas SR 15. 13 Secondly, the applicant alleges that the second respondent failed to disclose "a serious conflict of interest" in that he was (and is) the "President of the Australian Defence Force Discipline Appeal Tribunal" and thereby had "serious bias", "prejudices", "serious conflict of interests", "corruption", "duress" and other grounds having regard to "the legal precedent established in Gerard v Hope". 14 Thirdly, the applicant alleges that the respondents failed to take into account that the applicant was (and is) "on serious [p]sychiatrist medication" and should have organised legal representation for him on the basis that his "[c]urrent [s]erious [h]ealth [c]onditions" may "affect all decision making". In failing to do so, the applicant says, the second respondent breached his "duty of care", "negligence" and "equity law" and directly and indirectly caused the applicant damage to his health and financial loss. 15 Under the heading "Legislation" the applicant asserts that "the discrimination complained of" is unlawful under the DD Act, and "any Other Statute/Legislations which also applies". He also asserts that "serious offences" have been committed against him. 16 In respect of these allegations, the applicant seeks relief including that: (a) the second respondent's orders are to be "legally quashed and set aside"; (b) the respondents pay him financial compensation in the amount of $US950,000,000.00 together with compound interest; (c) the respondents make "positive new court orders" in favour of the applicant; (d) the respondents pay "all past and current legal costs" and "maximum compounded interest"; and (e) the respondents make "private and public official apologies".

the Applicant Should not Have LeaVe to bring the application

Judicial Immunity 17 Plainly, and as the first respondent submits, at common law judges have complete immunity for any act performed within their jurisdiction: Fingleton v The Queen (2005) 227 CLR 166 at 185 [36] (Gleeson CJ). What is "within jurisdiction" for these purposes must be understood in its "broad and general sense" as the "authority conferred upon [the] court and upon [the judge] to hear and to determine issues between individuals or between individuals and the Crown": Nakhla v McCarthy [1978] 1 NZLR 291 at 300-301 (Woodhouse J), adopted in various Australian decisions including in Gallo v Dawson (1988) 63 ALJR 121 at 122 (Wilson J); Fingleton at 185 [35]; Rajski v Powell (1987) 11 NSWLR 522 at 532 (Kirby P); Yeldham v Rajski (1989) 18 NSWLR 48 at 58 (Kirby P); Wentworth v Wentworth (2001) 52 NSWLR 602; [2000] NSWCA 350 at 612 [28] (Fitzgerald JA). 18 The purpose of the doctrine of judicial immunity is to protect the independence of judicial (and quasi-judicial) officers: Fingleton at 186 [38]-[39]. This does not mean, however, that judges are unaccountable: see generally Justice Stephen Gageler, 'Just versus Quick: Constructivist and Ecological Rationality in a Common Law System' (2022) 45(2) Melbourne University Law Review 830 at 842-845. Judges are required, subject to closely confined exceptions, to work in public, and to give reasons for their decisions. Their decisions routinely are subject to appellate review, which also is conducted openly. The ultimate sanction for judicial misconduct is removal from office by the Governor-General in Council, on an address from both Houses of Parliament: Constitution, s 72(ii); Fingleton at 186 [39]. 19 Historically, a distinction was drawn between the immunity available to superior court judges compared to that which extended to judges of inferior courts. The immunity was available for superior court judges even if they acted outside jurisdiction, provided they did not knowingly do so. On the other hand, the immunity was lost for inferior court judges if they acted outside jurisdiction whether knowingly or not, unless it was caused by an error of fact of which the judge had no knowledge nor the means of ascertaining the knowledge: Wentworth v Wentworth at 611-612 [25] - [29], 616 [44] (Fitzgerald JA); at [195] (Heydon JA). Whether or not that historical distinction remains good law in Australia is unnecessary to decide given that it is beyond doubt that the second respondent is a superior court judge and the Federal Court of Australia is a superior court of record: Federal Court of Australia Act 1976 (Cth), s 5(2). 20 The immunity extends to the Court itself. In Re East; Ex parte Nguyen (1998) 196 CLR 354, the applicant had sued the Magistrates Court, the County Court of Victoria and the Governor of Fulham Prison for contravention of the Racial Discrimination Act 1975 (Cth). The High Court referred (at 365-366 [29]-[30]) to the "fundamental problem" with the notion that "either a judicial officer, or a court, may be subject to legal redress, on the ground of an alleged contravention of s 9 of the Act", namely the "well established immunity from suit which protects judicial officers from actions arising out of acts done in the exercise of their judicial function or capacity" (citing Rajski v Powell and Mann v O'Neill (1997) 191 CLR 204). The High Court concluded that the immunity applied to bar the applicant's claims in Re East, making no distinction between the applicability of the immunity to the court itself and to its judicial officers. 21 The first respondent submits that the applicant's allegations in the claim (in summary, failing to make a referral or make other arrangements for him to have pro bono legal representation, and otherwise presiding over the proceeding notwithstanding his other appointment as the President of the Australian Defence Force Discipline Appeal Tribunal) indicate that the issues of which he complains were all acts done by the second respondent in the exercise of his judicial functions and are plainly within jurisdiction in the "broad and general sense" in which that term is understood in the context of judicial immunity. Thus the first respondent submits that the doctrine of judicial immunity applies and is a complete answer to the claims made against the second respondent and, in turn, against the first respondent. 22 Insofar as the applicant purports to rely on the case of Gerard v Hope, the first respondent submits that the case does not assist him. It is the first respondent's position that Gerard v Hope is plainly distinguishable from the present case because the relevant judge was there found not to have any power to do what he did, whereas it is not in doubt that the second respondent had the statutory power to make the orders he made in Praljak v Department of Defence and the authority to preside over those proceedings. Moreover, Gerard v Hope concerned an inferior court judge for whom, as the first respondent submits, historically the immunity was said not to apply in respect of matters outside jurisdiction. As is apparent, the present proceedings concern a superior court and a superior court judge for whom the protection of judicial immunity is not in doubt, even for matters outside jurisdiction. 23 The first respondent's submissions in relation to judicial immunity should all be accepted. That doctrine applies to bar the applicant's claim in its entirety.

Claims not reasonably arguable 24 The first respondent otherwise submits that given the doctrine of judicial immunity operates as a complete bar, there is no need to assess the substantive merits of the applicant's claim. Nonetheless, the first respondent makes the following submissions in relation to the applicant's allegations and the facts purportedly supporting them. It is the first respondent's position that there are manifestly no factual or legal bases for the claim and as such it has no reasonable prospect of success such as to warrant the grant of leave. 25 The first respondent submits in relation to the first allegation (i.e. the failure to arrange pro bono legal advice and representation for him in proceedings QUD233/2021 because he was not on a "level playing field") that it plainly lacks substance because there is no discernible common law or statutory duty on a judge to refer a person to a lawyer for pro bono legal assistance or ensure that one is obtained. It is said that while Division 4.2 of the Federal Court Rules 2011 provides the Court with a discretion to refer a party to a lawyer for legal assistance by issuing a referral certificate, there is no obligation on the Court to exercise that discretion and, even where it does exercise it, the only obligation that flows is that the Registrar must "attempt to arrange for the provision of legal assistance in accordance with the referral certificate to a Pro Bono lawyer": r 4.12(4) of the Rules. Rule 4.13 is explicit that a party does not have the right to apply for a referral. In any event, it appears from the allegations that the second respondent did exercise his discretion to make such a referral, but the applicant was unhappy with the pro bono lawyer who agreed to accept the referral (i.e. LawRight). The first respondent submits, and I accept, that no plausible cause of action could conceivably arise from this allegation. 26 In relation to the second allegation (i.e. the asserted "bias" of the second respondent by reason of his presidency of the Australian Defence Force Discipline Appeal Tribunal), the first respondent submits that this is also plainly without substance. It is contended that judicial officers are regularly appointed to fulfil tribunal positions and that fact alone cannot be said to give rise to either actual or apprehended bias (or any other related claim). Indeed, the first respondent points out that it is a statutory requirement that the President of the Australian Defence Force Discipline Appeal Tribunal be "a Justice or Judge of a federal court or of the Supreme Court of a State or Territory": Defence Force Discipline Appeals Act 1955 (Cth) s 8(1). The first respondent submits, and I accept, that no plausible cause of action conceivably arises from this allegation. 27 In relation to the third allegation (i.e. that the respondents failed to make adjustments for the applicant's "serious health conditions" by arranging pro bono legal representation), the first respondent submits that this allegation has not ventured close to meeting the elements of either a direct or an indirect disability discrimination claim. Importantly, while the applicant refers to the condition of "acrophobia" (which is a mental health condition that may qualify as a "disability" within the meaning of the DD Act), that condition relates to the fear of heights. None of the issues about which the applicant complaints appear to be connected to any conduct or requirement interacting with or impacting on a fear of heights. It is said that the mere fact of the applicant having "acrophobia" (assuming that to be true) does not give rise to any need to make reasonable adjustments in the form of arranging pro bono legal assistance for him. The first respondent submits, and I accept, that no plausible cause of action conceivably arises from this allegation.

Further factors in favour of leave being refused 28 The first respondent submits finally that there are a series of further matters which favour leave being refused. These factors can be summarised as follows: (a) first, that much of the applicant's affidavit material concerns other claims that the applicant has commenced in other proceedings, and that to the extent the affidavit material is concerned with new or different issues from the allegations contained in the originating application, the applicant is barred from expanding the claim to encompass them by virtue of s 46PO(3) of the AHRC Act; (b) secondly, that the reasons of the delegate of the President for terminating the AHRC complaint demonstrates that the AHRC has dealt comprehensively with the AHRC complaint and, as Mortimer J put it in James at [38(3)], "thoroughly answer[ed] the alleged merits of a complaint and make it clear the complaint is not reasonably arguable"; (c) thirdly, that the applicant did not seek to address his allegations against the respondents outside of the AHRC process and did not appeal the decision of the second respondent and therefore did not avail himself of the proper means of redress; (d) fourthly, that there are no considerations of factual or legal complexity which would favour leave being granted because the applicant's allegations substantially concern his desire to have or expectation that he should have free legal representation to prosecute proceedings against other parties and his misplaced perception that it was the role of the presiding judge or of the Court to facilitate that desire or expectation; (e) fifthly and similarly, that the claim does not raise any allegations of public importance or of general application; and (f) sixthly, that a grant of leave to the applicant to pursue the claim would prejudice the respondents, or at least the first respondent, and would effectively force the first respondent into engaging with the proceedings which the doctrine of judicial immunity is designed to prevent; and furthermore that the first respondent would have to put on a substantive response to the originating application or bring an application to have the claim struck our or summarily dismissed. It is said that the first respondent should not be troubled to have to do this given that the AHRC Act has a process designed precisely to filter our such complaints. 29 I accept that each of these further matters support an order that leave be refused. 30 In all the circumstances therefore, and having regard to all the matters canvassed above, this case is not one which warrants a grant of leave. Leave will therefore be refused pursuant to s 46PO(3A) of the AHRC Act, the proceeding will be dismissed, and the costs of the first respondent, if sought, will be reserved for later determination. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McEvoy.

The requirement to obtain leave of the Court 6 Section 46P of the AHRC Act enables a person to lodge a written complaint with the AHRC alleging unlawful discrimination. Section 46PH of the AHRC Act sets out a series of bases upon which the President of the AHRC may or must terminate a complaint. The discretionary bases for termination are set out in s 46PH(1), while the mandatory bases for termination are set out in s 46PH(1B)-(1C). Relevantly for present purposes, s 46PH(1B) provides: Mandatory termination of complaint (1B) The President must terminate a complaint if the President is satisfied that: (a) the complaint is trivial, vexatious, misconceived or lacking in substance; or (b) there is no reasonable prospect of the matter being settled by conciliation. 7 By reason of s 46PO(1) of the AHRC Act, it is only once a complaint has been terminated that a person may bring an application in the Court with respect to the complaint, subject to certain limitations. Importantly, s 46PO(3A) stipulates that the basis upon which the complaint is terminated determines whether a person may, as of right, bring an application before the Court or whether a person must apply for leave to bring such a claim. In particular, s 46PO(3A) provides that an application must not be made unless the Court grants leave to make the application or the complaint was terminated under subsections 46PH(1)(h) or 46PH(1B)(b). 8 In James v WorkPower Inc [2018] FCA 2083, Mortimer J explained that the purpose of the leave discretion is "to provide a filter" to preclude claims of a certain type. Her Honour made the following observations in relation to the operation of the "filter": [37] I am satisfied that the text, context and purpose of the leave requirement in s 46PO(3A) suggests that it is appropriate for the Court to consider in determining whether to grant leave whether the claims made by an applicant are reasonably arguable, and are - at the least - not fanciful. This is consistent with the language used in s 46P(1A). I do not consider, read in context, that s 46PO(3A) sets the bar particularly high: the purpose of the provision is to act as a filter to preclude complaints whose merits are disproportionate to the time and resources likely to be consumed by dealing with them in a whole proceeding, but not to impose a barrier of any substantively greater level. [38] There may be a range of other permissible considerations including: (1) 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; (2) 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); (3) how thoroughly the Commission has dealt with the merits of the complaint. For example, it may be the Commission's termination reasons thoroughly answer the alleged merits of a complaint and make it clear the complaint is not reasonably arguable; (4) whether an applicant has delayed in complaining about the alleged discrimination and if so whether there are any explanations for that delay; (5) whether a respondent has attempted to address the allegations in any way outside the Commission process and whether the allegations have been addressed or resolved in any way; (6) the factual and legal complexity of the matters raised by the allegation of unlawful discrimination; (7) 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; and (8) other factors that are often considered in leave applications - such as prejudice to a party. (Emphasis added) 9 Justice Mortimer noted also that the assessment of whether to grant leave does not require a "detailed consideration and determination of the merits of the applicant's underlying arguments" (at [39]). Rather, as Katzmann J observed in Chircop v Technical and Further Education Commission [2022] FCA 1015 at [104], it requires the Court to make "an impressionistic assessment" of the applicant's claims and the facts supporting them to determine whether there are factual and legal bases for the purported claims. 10 In Matthews v Markos [2019] FCA 1827 at [37], Abraham J noted that the determination of whether a claim is "reasonably arguable" is necessary given that "[i]t would be perverse, and contrary to the legislative scheme to grant leave if the matter were considered by a Court to be without any merit". A similar point was made in Weir v Telstra Corporation Limited [2022] FCA 969 at [9] where Logan J considered that a case having no reasonable prospect of success would not warrant a grant of leave under s 46PO(3A)(a) of the AHRC Act.

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