Przybylowski v Australian Human Rights Commission

1. The application for an adjournment made by the applicant at the interlocutory hearing on 31 January 2018 is refused. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

PERRY J: 1 At the start of the hearing this morning, the applicant, Mr Miroslaw Przybylowski, applied for an adjournment on the basis that he had been wrongly advised by an email from the Registry on behalf of my Chambers that the hearing today, 31 January 2018, was a directions hearing and he wished to ensure that all of the evidence was before the Court. This application was opposed by the second respondent, the Attorney-General for the Commonwealth (the Attorney-General). 2 I consider that the matter should proceed today for the following reasons. 3 First, the parties were advised in October 2017 that the interlocutory application by the Attorney-General for summary dismissal of the matter would be heard today. 4 Secondly, the email from Registry which wrongly referred to the hearing today as a directions hearing was sent at midday on Monday, 29 January 2018. The solicitor for the Attorney-General wrote an hour later, advising that this appeared to be in error and sought confirmation as to the nature of the hearing today. On the following day, 30 January 2018, at 9.13 am, the Registry wrote to the parties again by email advising that the Orders made on 5 October 2017 listing the Attorney-General's interlocutory application for hearing at 10.15 am on 31 January 2018 were correct, and that the email sent the day before which referred to the hearing as a directions hearing should be disregarded. 5 Thirdly, I have had regard to the nature of the interlocutory application today. That application is for summary dismissal, that is, dismissal of the proceeding without trial, on the basis that the proceedings have no reasonable prospects of success and constitute an abuse of process. As such, while the Court can look at other material which has been filed, and the parties have in fact referred in their written submissions on the application for summary dismissal to other filed material, the primary focus of the interlocutory application is upon whether the substantive application raises a reasonable cause of action. By its very nature, therefore, the interlocutory application proceeds on an incomplete state of the evidence. 6 Fourthly, the substantive application seeks judicial review of a decision made by the first respondent, the Australian Human Rights Commission (the Commission). As such, the question is whether the Commission made an error of a relevant kind. In this regard, the Commission has filed an affidavit affirmed by Ms Lara Renton, on 22 November 2017, attaching those documents which Ms Renton believes were before the Commission regarding the applicant's complaints. 7 Fifthly, the parties have filed detailed written submissions in advance of the hearing today. In these circumstances, the applicant has had ample opportunity to consider his position in light of the Attorney-General's submissions and to prepare for the hearing today, notwithstanding the short period of confusion caused by the email from the Registry earlier this week. 8 Finally, any application for further evidence to be produced (as foreshadowed by the applicant and raised in support of his application for an adjournment) can be addressed in due course if the interlocutory application for summary dismissal is unsuccessful. 9 I also note that the applicant stated in oral submissions this morning that, if I ruled against his adjournment application, he would not participate further in the hearing today. Ultimately, whether the applicant participates actively in the hearing is a matter for him, even though I would urge him to do so. In any event, I will have regard to the applicant's written submissions. I also note that the duty of the Court is only to afford a party a reasonable opportunity to be heard. That duty does not require that the party in fact take advantage of that opportunity: see e.g. Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 at [38] (Kirby J). 10 For these reasons, I refuse the application for an adjournment and will deal with the applicant's proposed short minutes of order in due course, depending on the outcome of the interlocutory application. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry.