Przybylowski v Australian Human Rights Commission

THE DECISION OF THE PRIMARY JUDGE 13 The three grounds of review in the application for judicial review filed before the primary judge merely repeated ss 6(1)(a), (c) and (g) of the Administrative Decisions (Judicial Review) Act 1977 (Cth). The applicant also requested, on the basis that the Federal Court would transfer the relevant matter to the ICJ, "an order from the ICJ" about the Polish judgment, "which Australia and the Republic of Poland must accept and obey under the UN Treaty - the Convention on the Recovery Abroad of Maintenance". 14 The material before the primary judge comprised: (1) a Court Book prepared and filed by the Commission before filing its submitting notice which included: (a) the documents before the delegate, including Mr Przybylowski's complaint and correspondence with the Commission; and (b) further documents on which Mr Przybylowski sought to rely; and (2) the affidavit of Mr Przybylowski affirmed on 22 June 2021. 15 In addition to oral submissions, the parties also filed written submissions. 16 The primary judge summarily dismissed the application for judicial review on 11 November 2021. Her Honour's reasons may be summarised as follows. 17 First, the primary judge set out the principles governing summary dismissal applications under r 26.01 of the FCR, including the need for caution in exercising the discretion to summarily dismiss an application. No error was alleged, or is evident, in her Honour's description of the relevant principles. 18 Secondly, the primary judge noted that Mr Przybylowski's failure to provide any particulars of his grounds of review was in itself a sufficient basis on which to dismiss his application, citing: FEY17 v Minister for Home Affairs [2020] FCA 1014 at [90] (Greenwood J); FKV17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1950 at [45] (Collier J). Notwithstanding that, the primary judge attempted to address the substance of Mr Przybylowski's submission on the bare grounds of review as best as she could understand them, in light of the need for caution in exercising the power to summarily dismiss an application. 19 Thirdly, the primary judge was satisfied that the Attorney-General had established that each limb of Mr Przybylowski's application should be summarily dismissed under rr 26.01(a) and (c) of the FCR. Specifically, the primary judge held that: (1) Mr Przybylowski had not established any breach of procedural fairness, given that he was advised of the concerns held by the delegate about his complaint in the natural justice letter and was given an opportunity to, and did, respond to that letter (primary judge's reasons (PJ) at [39]); (2) the allegation that the delegate lacked jurisdiction to make the proposed decision must fail as at all relevant times the decision-maker was a delegate of the President of the Commission pursuant to s 19(1) of the AHRC Act (PJ at [41]); and (3) the bare allegation of fraud, being a serious allegation which must be distinctly pleaded and proved, was not properly made or particularised, in circumstances where the allegation of fraud did not identify who committed the fraud, what actions or omissions constituted the fraud, or how the fraud affected the decision (PJ at [42]). 20 Fourthly and in any event, the primary judge found that Mr Przybylowski was again seeking orders to have this Court refer his complaints to the ICJ despite Justice Flick having given summary judgment against Mr Przybylowski in an earlier proceeding in which Mr Przybylowski also sought an order to that effect: see the 2020 Judgment. In so doing, her Honour held that: 45. … Mr Przybylowski is seeking to have this Court consider and revisit matters which were the subject of the 2014 SSAT decision and 2015 FCC Judgment in order to pursue relief that is non-justiciable: Przybylowski at [14]. Mr Przybylowski seeks to do so in circumstances where he is well beyond the time limit imposed on an appeal from the 2015 FCC Judgment. There is a public interest that inheres in preventing individuals from repeatedly litigating matters that have been the subject of determination by a Court. Mr Przybylowski's attempt to mount a collateral challenge to the 201[4] SSAT decision and the 2015 FCC Judgment in these proceedings is at best unorthodox but in the context of the whole of the broader procedural history I am satisfied that it amounts to an abuse of process. Accordingly, I am satisfied that an additional basis on which these proceedings ought to be summarily dismissed is in reliance on r 26.01(d) of the [FCR].

THE APPLICATION FOR AN ADJOURNMENT IN THE PRESENT PROCEEDING 21 On the morning of the hearing of his application for leave to appeal in this proceeding, Mr Przybylowski applied for an adjournment (the adjournment application) on the following basis: The reason for the adjournment is that the matter has been lodged in Polish court. There are lots of inconsistencies in the original Polish court decision and I believe, at that stage, this further order, I believe that any decision that this court is going to make would be inconsistent and unfair. (T3.21-24) 22 That application had been foreshadowed in his written submissions dated 24 August 2022 insofar as he asserted that these proceedings should be stayed because "the FCA has no jurisdiction in the family law proceeding under the FCA Act 1976" (applicant's submissions (AS) at [12]). Specifically, Mr Przybylowski submitted that the Federal Court lacked jurisdiction while the matter in the Polish court was proceeding and he appeared to foreshadow the possibility of an appeal from any decision of the relevant Polish court to the European Court of Justice. Mr Przybylowski sought orders "staying" the proceeding until final orders were made by the Polish court and said that there was no particular date by which the Polish court would make its final orders (T8.22-24). 23 In support of his request for a stay of the proceeding, Mr Przybylowski attached a number of documents to his written submissions dated 24 August 2022, including a translation from Polish to English of a document entitled "Request for a Preliminary Ruling" dated 19 August 2022 against Mr Przybylowski's former wife in relation to what is described as her "request for lifetime spousal maintenance made in 2014" (AS at 3). 24 The application for an adjournment was opposed by the second respondent, the Commonwealth Attorney-General. 25 I dismissed the adjournment application at the hearing and explained that I would include reasons for so holding in my reasons for judgment on the application for leave to appeal. Below I have set out my reasons for so ruling. 26 First, Mr Przybylowski apparently made his application to a Polish court at some time in January 2022 after the Commission made its decision on 14 January 2021 refusing to "reopen" the issues determined in the 2014 SSAT decision. As the application to the Polish court postdates the Commission's decision, it could not bear upon the question of whether the Commission had fallen into error and therefore whether the primary judge erred in rejecting the application for judicial review. Nor for the same reason could the eventual outcome of proceedings before the Polish court have any bearing on whether or not the Commission or the primary judge fell into error. 27 Secondly, the orders sought by Mr Przybylowski would effectively adjourn the hearing for an indefinite period of time, particularly where Mr Przybylowski was unable to indicate when the Polish court would make its order. 28 Thirdly, the suggestion that this Court lacks jurisdiction pending the resolution of the proceeding in Poland is completely misconceived. This Court plainly has jurisdiction to entertain the application for leave to appeal under s 24(1)(a) of the Federal Court of Australia Act 1976 (Cth) (FCA Act). The existence of proceedings abroad is irrelevant to the question of whether the Court has jurisdiction. 29 In those circumstances I considered that it would not be in the interests of justice to grant the adjournment, having regard in particular to the overarching purpose identified in s 37M(1) of the FCA Act, being, relevantly, "to facilitate the just resolution of disputes … as quickly, inexpensively and efficiently as possible".

RELEVANT PRNCIPLES: APPLICATION FOR LEAVE TO APPEAL 30 As an order pursuant to r 26.01 of the FCR summarily dismissing an application is an interlocutory order, Mr Przybylowski requires leave to appeal pursuant to s 24(1A) of the FCA Act: Fokas v Mansfield as Trustee of the Bankrupt Estate of Maria Fokas (No 2) [2020] FCA 30 at [29] (Wheelahan J) and the authorities cited therein. 31 The power to grant leave to appeal is discretionary and relevant factors include whether in all of the circumstances the decision is attended with sufficient doubt to justify its reconsideration on appeal and whether substantial injustice would result if leave were refused: Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225 at [29] (McHugh, Kirby and Callinan JJ); Décor Corp Pty Ltd v Dart Industries Inc [1991] FCA 844; (1991) 33 FCR 397 at 398-9 (the Court).

CONSIDERATION 32 Mr Przybylowski identifies three grounds in his application for leave to appeal (AB409), namely: (1) jurisdictional error; (2) breach of natural justice; and (3) breach of procedural fairness. 33 Mr Przybylowski clarified at the hearing that these errors were allegedly made by the primary judge (T7.46-8.2; T16.5-17.30). However, Mr Przybylowski's oral submissions focused upon challenging the correctness of the 2014 SSAT decision, despite it being made clear that his focus should be upon the grounds on which he seeks to appeal from the decision of the primary judge. 34 The Attorney-General submitted that leave should be refused on the basis that none of the grounds in the application have any merit. I agree. None of these grounds are particularised in the application (AB409). This is sufficient in itself to dismiss the application for leave to appeal: FEY17 at [90] (Greenwood J); WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35] (Gilmour J); WZATH v Minister for Immigration and Border Protection [2014] FCCA 612 at [60] (Judge Lucev) (upheld in WZATH v Minister for Immigration and Border Protection [2014] FCA 969). Nor does the affidavit on which Mr Przybylowski relies in support of his application for leave to appeal, or the affidavits subsequently filed by him, identify any error in the decision of the primary judge. 35 Further and in any event, the decision below is not attended by any doubt about its correctness and substantial injustice would not therefore result if leave to appeal is refused. 36 First, as this is an application for leave to appeal from a decision of the primary judge, it is incumbent upon Mr Przybylowski to demonstrate arguable error in the primary judge's decision. However, none of the documents filed by Mr Przybylowski in support of his application for leave to appeal address the central question of whether the primary judge fell into error. While Mr Przybylowski clarified at the hearing that the primary judge herself made a jurisdictional error, he provided no further submissions in support of that ground of appeal (T16.47-T17.16). Rather, as earlier explained, his submissions attempt to take issue with the correctness of the 2014 SSAT decision and to deal with related aspects of his maintenance dispute. As such, Mr Przybylowski has not identified any arguable jurisdictional (or other) error in the decision of the primary judge. 37 Nor is any arguable error apparent in the decision of the primary judge. As the Attorney-General submits, in dismissing Mr Przybylowski's application for judicial review, it is plain that the primary judge did not act outside the Court's jurisdiction, or do anything which she was not authorised to do. As such, this ground must fail. 38 Secondly, as there is no relevant distinction between a breach of natural justice and a breach of procedural fairness, grounds 2 and 3 fall to be considered together. However, there is nothing indicating that there was any breach of procedural fairness at the hearing before the primary judge. Under the timetabling orders made below, Mr Przybylowski was afforded, and took advantage of, the opportunity to provide written submissions and evidence in support of his application after receiving the Attorney-General's submissions, which were filed at the same time as the Attorney-General's application for summary dismissal. Mr Przybylowski also represented himself at the hearing and made submissions with the assistance of an interpreter. As a result, Mr Przybylowski was appraised of the relevant issues raised by the Attorney-General's summary dismissal application and was afforded an opportunity to respond in writing and at the hearing. It follows that no breach of procedural fairness by the Court has been established. 39 Thirdly, as the Attorney-General submits, there is no error apparent in the primary judge's finding that Mr Przybylowski was afforded procedural fairness by the delegate in light of the natural justice letter advising Mr Przybylowski of the delegate's concerns about his application and the opportunity he was given to respond. Further, no error is demonstrated in the primary judge's finding that: 39. … Although the delegate wrote to Mr Przybylowski on 21 December 2020 to advise Mr Przybylowski that the Commission did not require any further information from him, this was simply acknowledging that he had commented on the matters raised in the natural justice letter and that the Commission was in a position to make its decision on the material which it had. 40 The delegate proceeded to make her decision on 14 January 2021. Mr Przybylowski continued to correspond with the Commission about the translation of the Polish documents but at no stage did he indicate that he intended providing any further response to the natural justice letter (rather his email of 18 December 2020 and letter dated 17 December 2020 proceeded on the basis that it was his entire response). For instance, Mr Przybylowski's letter of 17 December 2020 (which appears to be erroneously dated in the year 2000) notes in the subject line that it is the "complainant response to the AHRC Assessment dated 17 December 2020". In further email correspondence sent on 18 December 2020, Mr Przybylowski also sought confirmation from the Commission that they have received his "complainant response" being the letter of 17 December 2020 and its attachments. 40 Fourthly, with respect to Mr Przybylowski's application to the Polish Court made sometime in January 2022, the Attorney-General correctly submitted that this material was irrelevant and could not establish error in the delegate's decision or that of the primary judge. This is because the material in question was not before the delegate and indeed post-dates the delegate's decision, which was given on 14 January 2021. Similarly, in Bibawi v Australian Human Rights Commission [2021] FCA 1476, Greenwood J found at [77] that the material provided by the applicant which post-dated the decision under review was not relevant in identifying any error in the decision in question. An appeal against Justice Greenwood's decision in Bibawi was summarily dismissed in Bibawi v Australian Human Rights Commission [2022] FCA 607 (see especially at [37]-[38] (Rangiah J)); see also Bibawi v Australian Human Rights Commission & Anor [2022] HCASL 150 dismissing the application for special leave to appeal to the High Court. 41 In a similar vein, the applicant's reference to a breach of article 2 of the "Framework Agreement" (AS [14]) (which is presumably a reference to the Framework Agreement between the European Union and its Member States, of the one part, and Australia, of the other part, is irrelevant to the application for leave to appeal. As the second respondent submitted, there was no reference by the applicant to the Framework Agreement in the material before the delegate. Further, international conventions do not give rise to any rights, obligations or liabilities enforceable under Australian law unless enacted as a law of the Commonwealth Parliament: Minister of State for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 at 286-7 (Mason CJ and Deane J). The Framework Agreement had not yet entered into force at the time of the delegate's decision or the decision of the primary judge, and is not an international instrument that has been incorporated by the AHRC Act or otherwise into Australian law. Article 2 of the Framework Agreement therefore does not give rise to any directly enforceable right or obligation relevant to Mr Przybylowski's application.

CONCLUSION 42 It follows that the applicant's un-particularised grounds of appeal would have no prospects of success if leave to appeal were granted. Nor is there any apparent basis on which to doubt the correctness of the carefully reasoned judgment of the primary judge. 43 It follows for these reasons that the application for leave to appeal the decision of the primary judge is hopeless and should be refused with costs. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Perry.