Praljak v State of Queensland

The Applicant's claims 8 It would seem that the applicant was required to appear in the Magistrates Court in May 2018 as a defendant in domestic violence order and unlawful stalking proceedings. 9 On 22 March 2018, prior to the hearing scheduled for May 2018, the applicant wrote by email to the Magistrates Court requesting that the matter be heard by telephone or, alternatively, in a court on the ground floor because he suffered from vertigo and anxiety. The applicant provided reports from his treating clinical psychologist dated 23 November 2017 and 26 March 2018 which noted that the applicant had a severe phobia of heights, along with claustrophobia difficulties, and that he was unfit to engage in any situations where he was not situated on the ground floor of a building, or in confined spaces. 10 On 26 March 2018 the Magistrates Court rejected the applicant's request and informed the applicant of the following: (a) the Court was unable to move the matter to the ground floor of the building as the specialist domestic violence support team was located on that floor; (b) Court records noted that the applicant had appeared in court room 8 previously with no issues raised; and (c) that a medical certificate should be provided to the court on the next occasion to raise any medical issues. 11 The matter remained listed in person on 16 May 2018 and the applicant was informed he must appear in person. 12 As has been mentioned, the applicant pleaded guilty to domestic violence and unlawful stalking charges. On 23 May 2018 his complaint to the AHRC followed. 13 On 23 October 2018 a delegate of the AHRC wrote to the applicant in relation to his complaint and invited him to provide further information in support of it. 14 On 25 October 2018 a delegate of the AHRC closed the complaint pursuant to s 46F(5)(a) of the AHRC Act, noting that the applicant had requested that his complaint be closed on 23 October 2018. 15 On 11 and 14 November 2021 the AHRC received further complaints from the applicant seeking to reopen his previous complaint by resubmitting documents that were lodged on 23 and 30 May 2018. Amongst other things, the applicant submitted that there was a miscommunication between him and the AHRC which led to his original complaint being incorrectly closed. 16 On 3 December 2021 a delegate terminated the complaint under s 46PF(1)(b) and s 46PH(1)(c) of the AHRC Act on the basis that an inquiry into the complaint was not warranted. In summary, the reasons for the termination were as follows: (a) apparent merit - even if there was information before the AHRC to support an arguable claim of "indirect discrimination" in an area of public life, the common law principle of judicial immunity applies; (b) other actions that have been taken - a previous inquiry has already been undertaken by the AHRC in 2018 and a new inquiry was not warranted in the circumstances; (c) prospects of a practical outcome or remedy - there were very limited prospects of a practical outcome of remedy being achieved through the AHRC process; (d) timing - concerns about the timing of the alleged events of unlawful discrimination were not raised within six months of the alleged acts and so the complaint may be terminated by the President or her Delegate under section 46PH(1)(b)(ii) of the AHRC Act. 17 Shortly afterwards, on 7 December 2021, the applicant filed the originating application in this Court. 18 On 3 February 2022 orders were made by Logan J that the question of whether the applicant ought to be granted leave to make the application to the Court pursuant to s 46PO(3A)(a) of the AHRC Act be heard as a separate question. His Honour also made orders requiring the hearing to be conducted on the ground floor of a venue to be appointed by the Court to take into account the applicant's needs, and that the parties file material. 19 Some months later, on 20 April 2022, the applicant filed an originating application to commence another, different, proceeding in this Court. The first respondent named was the Commonwealth of Australia and the second respondent was the Honourable Justice Logan himself. As a result of this application, Logan J recused himself from these proceedings on 6 May 2022: Praljak v State of Queensland [2022] FCA 572. 20 On 15 June 2022 the parties appeared before Thomas J and agreed orders that the application for leave be determined on the papers and for the filing of certain material. The applicant accepted at that hearing that his submissions as to why leave should be granted were set out in his affidavit dated 15 June 2022 and lodged with the Court on 21 June 2022. An email from the applicant to the Registry on 3 August 2022 confirmed that the applicant had filed all material in support of his application. 21 Thus the applicant relies on his originating application and affidavit dated 15 June 2022. The applicant did not file any written submissions. The respondent relies on an outline of submissions dated 13 April 2022 and further short submissions dated 7 July 2022. 22 The applicant's affidavit is comprised largely of material which is not apparently relevant to the question of whether leave should be granted. The affidavit addresses the applicant's background, his intentions, and the remedies sought including "Maximum Financial Compensations" and "Maximum Remedies", apologies, "Maximum Pecuniary Damages" and injunctions against the respondent but also various non-parties to the present proceeding. It also includes a number of vague allegations of "criminal offences" against non-parties to this proceeding and refers to a number of cases. It was over 1271 pages long, including one annexure. 23 In his affidavit the applicant contended that the following matters demonstrated that he had been treated less favourably than others: l. Firstly, I applied in around 2017 for considerations for a DVO hearing to be either; on the ground floor, or by phone or video link, due to severe and debilitating acrophobia which leads to symptoms of panic, dizziness, severe anxiety, severe deficits in attention and concentration, and executive function (i.e., thinking and problem solving) impairments. I have recently made some sound steps in treatment for my acrophobia, and my treatment will likely be required across the remainder of this year. However, at the time of this matter, I could not cope with it. My application for special consideration was rejected. As such, I attempted to resolve the matter quickly as I could not cope on the upper levels of the court. I do not know why special consideration was not given, especially given the impacts on my ability to fairly defend myself. How is that a fair process for justice? Also I was the Originak Victim in the case against Ms Shiva Amiri however, QPS made serious errors at the time they charged me with both DVO and Unlawful Stalking. They failed to look at QPS Reports/Interactions between me and QPS from early 2016 were they promised they would protect me as the Victim as they wanted in early 2016 to charge with DVO and Other potential Criminal Offences Ms. Shiva Amiri. 2. I 'accepted without admission' for the DVO case as a result in 2017. 3. The DVO case outcome was then used as evidence for an 'unlawful stalking 'charge from the police to the same person. Again, in the unlawful stalking case, I was not provided special consideration for my condition and not able to fairly defend myself. Further, the prosecutors and their QP9 evidence had a range of false information which IS NOT backed by any supportive evidence. Therefore, this led to hearsay evidence being unquestioned, and without a fair trial for this case. These claims by the prosecutor were essentially unfalsifiable and therefore non-defendable as they attempted to have me prove my innocence, yet they did not provide evidence for their claims. 4. As an outcome, I have been left with a criminal record, without any realistic means and as a self­ representing person, to have a correction of justice. 5. 1 am a citizen of this country, I am & tax payer. However, the legal system has not abided by its principles, nor has it allowed any fair trial for myself and the circumstances around this case. 24 The annexure to the applicant's affidavit consisted of a statutory declaration dated 5 April 2021 with accompanying documents. The annexure spans some 1259 pages and most unsatisfactorily, some documents were duplicated. As far as they are identifiable the documents include letters from medical practitioners, letters from solicitors in relation to an apparent disability claim, certificates relating to the applicant's qualifications, letters of reference for the applicant, legal advice in relation to a brand protection advice claim, documents in relation to the applicant applying for the removal of his supervised legal practising certificate, the applicant's curriculum vitae, emails to a variety of different institutions including Bond University, and various cases. The material is largely irrelevant to the question of whether leave should be granted.

The statutory Regime 25 The AHRC reasons for termination noted that the applicant's complaint alleged that the necessity for him to appear in person in 2017 and 2018 in a courtroom not located on the ground floor of the courthouse was "indirect discrimination". 26 Pursuant to s 3 of the DD Act the objects of the Act are as follows: (a) to eliminate, as far as possible, discrimination against persons on the ground of disability in the areas of: (i) work, accommodation, education, access to premises, clubs and sport; and (ii) the provision of goods, facilities, services and land; and (iii) existing laws; and (iv) the administration of Commonwealth laws and programs; and (b) to ensure, as far as practicable, that persons with disabilities have the same rights to equality before the law as the rest of the community; and (c) to promote recognition and acceptance within the community of the principle that persons with disabilities have the same fundamental rights as the rest of the community. 27 Indirect disability discrimination is defined at s 6 of the DD Act as follows: (1) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if: (a) the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and (b) because of the disability, the aggrieved person does not or would not comply, or is not able or would not be able to comply, with the requirement or condition; and (c) the requirement or condition has, or is likely to have, the effect of disadvantaging persons with the disability. (2) For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if: (a) the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and (b) because of the disability, the aggrieved person would comply, or would be able to comply, with the requirement or condition only if the discriminator made reasonable adjustments for the person, but the discriminator does not do so or proposes not to do so; and (c) the failure to make reasonable adjustments has, or is likely to have, the effect of disadvantaging persons with the disability. (3) Subsection (1) or (2) does not apply if the requirement or condition is reasonable, having regard to the circumstances of the case. (4) For the purposes of subsection (3), the burden of proving that the requirement or condition is reasonable, having regard to the circumstances of the case, lies on the person who requires, or proposes to require, the person with the disability to comply with the requirement or condition. 28 Section 46P of the AHRC Act stipulates that a person may lodge written complaints with the AHRC alleging unlawful discrimination. Section 46PO of the Act relevantly states: (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 Court, alleging unlawful discrimination by one or more of the respondents to 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). 29 As has been mentioned, the applicant's AHRC complaint was terminated under ss 46PF(1)(b) and 46PH(1)(c) of the AHRC Act. The applicant was given notice in relation to that termination as required by s 46PH(2). On that basis, pursuant to s 46PO(3A)(a) of the AHRC Act, the applicant's originating application must not be made unless this Court grants leave for it to be made. 30 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 leave discretion: [31] Like other judicial discretions empowering leave to be granted to a party to take a step in a proceeding … or to issue a proceeding …, the interests of the administration of justice will be a governing consideration in the way the discretion falls to be exercised. However, how the assessment of what is in the interests of the administration of justice is to be undertaken will vary depending on the nature of the power in issue, and the circumstances which give rise to a request for its exercise. Here, as the respondent submits, the imposition of a leave requirement in certain circumstances by the amendments to s 46PO in 2017 had a clear purpose. Any consideration of where the interests of the administration of justice lie must recognise and give weight to that purpose. [32] The purpose of the leave discretion, taking into account its text and context, is to provide a filter. It removes what was previously an entitlement to bring a proceeding in this Court once the Commission has terminated a complaint. It sits alongside the limits which have always been imposed by s 46PO(3), themselves aimed at constraining the subject matter of proceedings under s 46PO to the substance of what was before the Commission. (Emphasis added) 31 Her Honour provided the following further guidance as 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: … (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; … (6) the factual and legal complexity of the matters raised by the allegation of unlawful discrimination; … (8) other factors that are often considered in leave applications - such as prejudice to a party. 32 At [43], her Honour stated that the purpose of s 46PO(3A) is to: … allow the Court to filter out plainly unmeritorious complaints where the arguments are fanciful, or so obviously misconceived that what is being suggested by the applicant should not be entertained by the Court - whether because they are not arguable as a matter of law, or because there is no rational factual substratum for the allegations, or because there is no utility in the proceeding.

Judicial Immunity 33 The respondent submits that the reasons for termination make clear that the complaint is not reasonably arguable and is lacking in substance because the allegations relate to the exercise of administrative functions which would be covered by the doctrine of judicial immunity. 34 Plainly, and as the respondent submits, it is well established that judges and judicial officers have complete immunity for any act arising out of acts done in the exercise of their judicial function or capacity: Re East; Ex Parte Nguyen (1998) 196 CLR 354 at 365-366 [30] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ) citing Rajski v Powell (1987) 11 NSWLR 522; Mann v O'Neill (1997) 191 CLR 204 at 241 (Gummow J); as well as for any act performed within their jurisdiction: Fingleton v The Queen (2005) 227 CLR 166 at [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 at 532 (Kirby P); Yeldham v Rajski (1989) 18 NSWLR 48 at 58 (Kirby P); Wentworth v Wentworth (2001) 52 NSWLR 602 at 612 [28] (Fitzgerald JA). 35 The purpose of the doctrine of judicial immunity is to protect the independence of judicial (and quasi-judicial) officers: Fingleton at [38]-[39]. In Mann v O'Neill at 239-240 Gummow J observed: The head of immunity concerned with the effective performance of judicial functions operates to protect individuals in the classes specified by Lord Mansfield in the above passage. This immunity responds to two general considerations. The first is to assist full and free access to independent courts for the impartial quelling of controversies, without fear of the consequences. The second is related to the first and involves the avoidance of the re-agitation by discontented parties of decided cases after the entry of final judgment, other than by pursuit of any available avenue of appeal and the invocation of the special equity jurisdiction to set aside judgments, in a suit constituted for that purpose. In the present case, the immunity is asserted by a party to litigation. Where the reliance is by a judicial officer, the immunity also gives effect to the particular public interest in securing the utmost freedom to those who preside over judicial proceedings, subject only to the constitutional or other remedies for removal from office. 36 In Fingleton, Gleeson CJ stated (at 186): [38] This immunity from civil liability is conferred by the common law, not as a perquisite of judicial office for the private advantage of judges, but for the protection of judicial independence in the public interest. It is the right of citizens that there be available for the resolution of civil disputes between citizen and citizen, or between citizen and government, and for the administration of criminal justice, an independent judiciary whose members can be assumed with confidence to exercise authority without fear or favour. … [39] This does not mean that judges are unaccountable. 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 upon an address of Parliament. However, the public interest in maintaining the independence of the judiciary requires security, not only against the possibility of interference and influence by governments, but also against retaliation by persons or interests disappointed or displeased by judicial decisions. 37 The immunity extends to the Court itself. In Re East 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) (RD Act). 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). Furthermore the High Court noted that "there is nothing in the [RD Act] which suggests that it was the intention of the Parliament to override that immunity" (at 366 [30]). It was 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. The respondents submit that the same applies to the DD Act, as it similarly contains no provision to suggest Parliament intended to override that immunity. 38 The rationale behind the doctrine of judicial immunity is equally applicable to judges and court officers. In Wentworth, Fitzgerald JA stated (at 624 [58]): [58] …If judicial immunity is afforded to a judge in respect of his or her exercise of the court's power and jurisdiction, there is no rational justification for denying the same immunity to a master or a registrar when he or she performs judicial functions in the exercise of the court's jurisdiction and powers. The rationale behind the doctrine of judicial immunity is equally applicable to judges and court officers: see Halsbury's Law of England, 4th ed reissue, vol 1, par 206 at 364; Najjar (at 249) per Clarke JA. It is the nature of the function being performed and the connection of that function with the judicial process which determines whether or not immunity attaches: Xuereb v Viola. 39 The respondent submits that in Queensland the immunity has, by statute, been extended to the performance of administrative functions and powers conferred by statute by s 51 of the Magistrates Act 1991 (Qld) which states: a magistrate has, in the performance or exercise of an administrative function or power conferred on the magistrate under an Act, the same protection and immunity as a magistrate has in a judicial proceeding in a Magistrates Court. 40 The respondent also submits that insofar as the complaint relates to the alleged actions of the coordinating magistrate to refuse the applicant's request for a ground floor court room, the magistrate was exercising an administrative function and, accordingly, s 51 of the Magistrates Act applies. In the event that the allegations could otherwise be characterised as occurring in the performance of a judicial function, the common law immunity would apply in any event. Thus the respondent contends that leave ought not be granted to the applicant. 41 I accept that in all the circumstances the decision of the coordinating magistrate not to allow the applicant to appear in a court room located on the ground floor of the courthouse (for reasons explained to the applicant prior to the hearing) falls wholly within the protection afforded to the magistrate pursuant to s 51 of the Magistrates Act and pursuant to the principle of judicial immunity at common law. For that reason alone, leave must be refused. No cogent arguments are advanced by the applicant to the contrary.

Abuse of process 42 Part IIB of the AHRC Act establishes a regime for redress for unlawful discrimination under various Commonwealth anti-discrimination laws. It is well established that this regime is an exclusive one for remedying contraventions of these anti-discrimination laws, including the DD Act: Eliezer v University of Sydney (2015) 239 FCR 381 at 393 [41] (Perry J). As a result, a contravention of the DD Act gives rise only to a right to invoke the procedures and to obtain the remedies provided for in the AHRC Act: Eliezer at 393 [41], citing Bropho v State of Western Australia [2004] FCA 1209 at [29] and [51]-[53] (RD Nicholson J); French v Gray, Special Minister of State (2013) 217 FCR 404 at 432-433 [149]-[151] (Besanko J); Dye v Commonwealth Securities Ltd (No 2) [2010] FCAFC 118 at [71] (Marshall, Rares and Flick JJ). 43 The respondent refers to Ridgeway v The Queen (1995) 184 CLR 19 at 75 (in a passage quoted with approval in Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256 at 266-267 [14] (Gleeson CJ, Gummow, Hayne and Crennan JJ)) where Gaudron J explained: Abuse of process cannot be restricted to 'defined and closed categories' because notions of justice and injustice, as well as other considerations that bear on public confidence in the administration of justice, must reflect contemporary values and, as well, take account of the circumstances of the case. 44 The respondent submits that abuse of process usually falls into one of three established categories, namely: the use of the court's procedures is for an illegitimate purpose; it is unjustifiably oppressive to one of the parties; or it would bring the administration of justice into disrepute: see Rogers v The Queen (1994) 181 CLR 251 at 286 (McHugh J); Batistatos at 267 [15] (Gleeson CJ, Gummow, Hayne and Crennan JJ); UBS AG v Tyne (2018) 265 CLR 77 at 83 [1]; Walton v Gardiner (1993) 177 CLR 378 at 393 (Mason CJ, Deane and Dawson JJ); Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507 at 518-519 [25] (French CJ, Bell, Gageler and Keane JJ). Relevant abuses may arise from the institution of proceedings, although any procedural step is capable of being an abuse of court process. 45 It may also be observed that undue vexation may arise from requiring a litigant, whatever its resources, to deal with claims in a later proceeding that could or should have been dealt with in an earlier proceeding: UBS AG at 100 [58] (Kiefel CJ, Bell and Keane JJ). A proceeding will also be an abuse of process where it is hopeless or "foredoomed to fail": see Walton v Gardiner at 393. 46 The respondent submits that the application is an abuse of process on a number of bases. First, because when regard is had to the grounds that the applicant advances, together with the remedies he seeks, it is apparent that the application seeks to use the court's procedures for an illegitimate purpose. The respondent submits as an example that the applicant seeks compensation and a formal apology, and that his "Australian Lawyer/Solicitor/Legal Career to be 100% Restored and my Rank in the Legal Profession to now be significantly Increased in standing and ranking as further compensation to restore all of the wrongs and injustices which have been committed against [him] over several years". 47 Secondly, the respondent submits that the present application constitutes an abuse of process because the applicant seeks to ventilate and re-litigate matters that were the subject of criminal proceedings in the Magistrates Court in 2017 and 2018, as he seeks that his convictions be "Immediately & Permanently" quashed. As has been mentioned, those same matters were also the subject of an inquiry undertaken by the AHRC in 2018. 48 Thirdly, the respondent submits that it is beyond the power of the Court to grant the remedies that the applicant seeks in this application, particularly that his convictions be overturned. In that regard the respondent notes that the applicant was legally represented in the criminal proceedings that are the subject of this complaint and that he pleaded guilty to the charges. As the respondent submits, a central aspect of a criminal proceeding is that parties are bound by the conduct of their counsel; R v Baden-Clay (2016) 258 CLR 308 at 324 [48] (French CJ, Kiefel, Bell, Keane and Gordon JJ) (citing Nudd v R (2006) 225 ALR 161 at 164 [9] (Gleeson CJ)). 49 In all the circumstances I accept the respondent's submission in relation to these matters. No cogent arguments are advanced by the applicant to the contrary. The applicant's claims represent an abuse of process. The application seeks to advance grounds for an illegitimate purpose, it seeks to re-litigate matters relating to applicant's convictions which were the result of proceedings in 2017 and 2018 before the Magistrates Court, and it seeks remedies that are beyond the power of the Court to grant.

disposition 50 Having considered all of the evidence on the application I am satisfied that leave should not be granted to the applicant to make an application to pursuant to s 46PO(3A)(a) of the AHRC Act. Leave to make the application will be refused and the originating application will be dismissed with costs. There will be orders accordingly. I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McEvoy.