Przybylowski v Australian Human Rights Commission

BACKGROUND 5 The primary judge set out the relevant background in his Honour's reasons at [1]-[9]. It is not necessary to repeat all of the detail in these reasons, and I have focused on the matters of most direct relevance to the present application. 6 In December 2018, Mr Przybylowski lodged complaints with the Commission in relation to his marriage in Poland and subsequent divorce in Australia in 2002. As a result of his divorce, a Polish Court ordered him to pay his former wife spousal support maintenance and child support (the Polish Court orders). The Polish Court orders were subsequently registered by the Child Support Registrar, as a consequence of which Mr Przybylowski had a spousal support liability and a child support liability in Australia. 7 Mr Przybylowski was dissatisfied with the registration of the Polish Court orders in Australia, as well as subsequent decisions made by the Department of Human Services regarding his liability for child support. Mr Przybylowski lodged complaints against the Australian Human Rights Commissioner, the Commonwealth Attorney-General, and various other Australian government agencies. The Commission accurately summarised these complaints in its reasons as follows (at 4): Summary of your current complaint The following claims can be discerned from the complaint forms and associated documents and submissions you provided to the Commission: • You claim the Commission did not revise its decision even though you say you proved that the Commission's 'boss' is responsible for the United Nations Convention on the Recovery Abroad of Maintenance (UNCRAM). • You claim the Commission did not disclose information to you about the UNCRAM and the Attorney-General's responsibilities. • You claim the Commission has twice breached its independence and impartiality by politically motivated decisions. • You say that Poland has denied sending any maintenance request for any child support/spousal maintenance after your maintenance obligations ended on 21 June 2013 and the registration of the maintenance order is corruption. • You claim the Commission misled the FCA that Complaint 207-01021 was under the ICCPR when in fact it was under the Age Discrimination Act, 2004 (Cth)(ADA). • You are unable to enter or live in Poland, the country of your birth, because of the inaction of the Commission. • You claim the Commission has breached Article 12 of the ICCPR from 2014. You have requested that all the documents you provided to the Commission in relation to Complaint 2017-01021 and Complaint 2018-10660 also be considered in relation to your complaint. 8 On 13 June 2019, the Commission decided not to continue to inquire into Mr Przybylowski's complaints under s 20(2)(ba) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) on the basis that it was satisfied, having regard to all of the circumstances, that the continuation of an inquiry into the act or practice was not warranted. Specifically, the Commission decided that Mr Przybylowski's claims lacked merit and considered that the practical outcomes and remedies sought by him could not be achieved through the Commission's complaint process. 9 On 25 June 2019, Mr Przybylowski filed an originating application in the Federal Court under the Administrative Decisions (Judicial Review) Act 1977 (Cth), seeking review of the President's decision (the judicial review application). The originating application challenged the Commission's decision on the following grounds: a. a breach of natural justice by made [sic] the decision without obtaining first a decision of the International Court of Justice … b. a breach of procedural fairness by made [sic] the decision without obtaining first a decision of the International Court of Justice … 10 The orders sought by Mr Przybylowski in the originating application were as follows: (a) the dismissal of "the whole AHRC Decision dated 16 May 2019"; (b) a stay of the "AHRC procedure until the order will be made by the International Court of Justice"; (c) an order obligating "the AHRC to start the process to make a special agreement with Poland or to make a unilateral application by Australia itself to bring the dispute about the spousal maintenance before [the] International Court of Justice"; and (d) an order obligating "the person who will make the special agreement with Poland or the unilateral application after [the] AHRC started the process, that this whole originating application for the Judicial Review made by [the] applicant Miroslaw Przybylowski must be included to any application for the International Court of Justice". 11 On 23 September 2019, Mr Przybylowski filed a statement of claim in the judicial review application proceedings accusing the President of fraud. 12 On 2 October 2019, the Attorney-General filed an application for summary dismissal of the judicial review application. 13 On 4 October 2019, Mr Przybylowski filed an interlocutory application seeking: a stay order … until Poland will [be] assessed under the EU Law Regulations the previous dismissal for the spousal maintenance order [made] by the Australian Child Support … before and on 10 February 2011 and again on 10 March 2011 filed in the case NSD994/2019. 14 The primary judge summarily dismissed the judicial review application on 27 February 2020.

THE DECISION OF THE PRIMARY JUDGE 15 The primary judge found that the application for judicial review should be summarily dismissed pursuant to r 26.01 of the FCR for the following reasons. 16 First, the primary judge held that the grounds of review relied upon by Mr Przybylowski, both of which were founded on a requirement that the Commission pursue proceedings in the International Court of Justice (ICJ), gave rise to a non-justiciable question, applying the decision of Kirby J in Thorpe v Commonwealth of Australia (No 3) [1997] HCA 21; (1997) 71 ALJR 767 (at [12]-[14]). In Thorpe, the applicant sought orders that the Commonwealth move the United Nations General Assembly for an advisory opinion from the ICJ "as to the separate rights and legal status of the original peoples of this land". Kirby J held (at 797, in a passage relied upon by the primary judge) that the relief sought by Mr Thorpe was non-justiciable by the Court under the Australian Constitution for the following reasons: The court may not take upon itself the function, by the declarations sought by Mr Thorpe, in effect to require the Commonwealth on behalf of Australia to act in particular ways in relation to the organs of the United Nations. This court has never done this. It should not start now. The court has no knowledge of the many considerations which would have to be taken into account in deciding whether Australia should seek such a resolution from the General Assembly. It has no means of knowing how any such application would affect Australia's international relations generally or its relations with particular countries or its other activities within the United Nations and its agencies. These are all matters which the Australian Constitution reserves to the Executive Government of the Commonwealth. They defy judicial application. They turn on a multitude of considerations unknown to this court. They are matters upon which the Australian Government speaks to the international community with a single voice. That voice is the voice of the Executive Government chosen from the Parliament elected by the people of Australia. It is not the voice of this court. (Emphasis added.) 17 The primary judge held that the non-justiciability of Mr Przybylowski's claims meant that relief must be refused (at [14], citing Kaur v Sikh Gurdwara Perth (Inc) [2017] WASC 270 at [82] (Le Miere J)) and the application for judicial review summarily dismissed. 18 Secondly, the primary judge held that the allegation of a breach of natural justice lacked any reasonable prospects of success. In this regard, the primary judge held at [16] that: The difficulty inherent in the manner in which Mr Przybylowski seeks to advance his grounds of review, and even assuming those grounds could raise justiciable issues, is the fact that the rules of natural justice or procedural fairness would not require the President to actively take steps to secure a judgment from the International Court of Justice, or to await a decision of that Court. On the facts of the present case, those rules would simply require the President to consider such materials and submissions as were placed before her by Mr Przybylowski, and to disclose to him such other materials as were before her and of arguable relevance to the decision to be made. Such an opportunity to provide materials and make submissions was in fact extended to Mr Przybylowski, and he availed himself of that opportunity. 19 Thirdly, while the primary judge observed that no other allegation as to procedural unfairness was relied upon by Mr Przybylowski in his originating application, Mr Przybylowski had made other complaints to the Commission. As his Honour observed, these included allegations that the Commission (at [18]): did not proceed in an impartial and independent manner; and withheld information "about the UNCRAM [United Nations Convention on the Recovery Abroad of Maintenance] and the Attorney-General's responsibilities". The primary judge held that, irrespective of whether Mr Przybylowski had abandoned these complaints, neither had any substance (at [18]). 20 With respect to the first complaint, the primary judge held that there was "no factual basis" for any allegation as to a lack of impartiality or a lack of independence (at [19]). 21 With respect to the second complaint, the primary judge held that the President had correctly found that the Commission had no statutory authority to consider complaints about acts or practices relating to the United Nations Convention on the Recovery Abroad of Maintenance (UNCRAM), as that convention is not an international instrument scheduled to, or declared under, the AHRC Act (at [19]). Nor, on the materials before the Court, was there any information identified which had been withheld by the President (at [19]). The primary judge observed that all such materials about the UNCRAM and the Attorney-General's responsibilities appeared to be materials provided by Mr Przybylowski for the Commission's consideration (at [19]). The primary judge concluded that there was no evidence of the Commission having any further materials which were not disclosed, and accordingly, his Honour rejected the allegation of a denial of procedural fairness (at [19]-[20]). The primary judge also found the allegation of fraud to be without substance (at [21]). 22 Finally, as the proceeding was summarily dismissed, the primary judge found that there was no need for the Court to consider Mr Przybylowski's interlocutory application for "a stay order … until Poland will [be] assessed under the EU Law Regulations…" (at [24]).

DISPOSITION OF THE APPLICATION FOR LEAVE TO APPEAL

4.1 Relevant principles 23 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 Federal Court of Australia Act 1976 (Cth): 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. 24 The power to grant leave to appeal is discretionary. Relevant factors include whether, in all of the circumstances, the decision is attended with sufficient doubt to warrant 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] (the Court); Décor Corp Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397 at 398-9 (the Court). 25 Importantly, in considering whether an appeal would have sufficient merit, it will often be appropriate to consider the proposed grounds of appeal at a "reasonably impressionistic level": see, by analogy, Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 96 ALJR 819 at [16]-[18] (Kiefel CJ, Gageler, Keane and Gleeson JJ). However, there are other cases in which a closer examination of the merits is appropriate: Tu'uta Katoa at [18]. In this matter, Mr Przybylowski's proposed grounds of appeal obviously lack any merit on their face, as I explain below. This is not a case where there is a reason to examine the merits of the proposed grounds other than at a reasonably impressionist level.

4.2 The proposed grounds of appeal lack any merit 26 On 12 March 2020, Mr Przybylowski filed an application seeking leave to appeal from the orders of the primary judge (leave application). The proposed grounds of appeal identified in the leave application and draft notice of appeal were simply identified as: • jurisdictional error; • breach of natural justice; and • breach of procedural fairness. 27 Mr Przybylowski also sought a stay of the orders in the decision below "until a decision of the ICJ will be made obliging the AHRC to start the process[s] before the ICJ". 28 The intervener submitted that leave should be refused on the basis that the proposed grounds of appeal are without substance. I agree. None of the grounds of appeal are particularised in the application. That is sufficient in itself to dismiss the application for leave to appeal (FEY17 v Minister for Home Affairs [2020] FCA 1014 at [90] (Greenwood J); WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35] (Gilmour J)). Nor do Mr Przybylowski's submissions identify any alleged error in the primary judge's decision. 29 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. 30 First, Mr Przybylowski's assertion of jurisdictional error (ground 1) must fail. As this is an application for leave to appeal from a decision of the primary judge, it is incumbent upon Mr Przybylowski to demonstrate error in the primary judge's decision. Mr Przybylowski has identified no error in his application for leave to appeal or draft notice of appeal. Nor do any of the other documents filed by Mr Przybylowski in this proceeding address the central question of whether the primary judge fell into error, jurisdictional or otherwise. 31 Nor is any jurisdictional error apparent in the decision of the primary judge. It is plain that the primary judge did not act outside the Court's jurisdiction, or do anything that his Honour was not authorised to do. 32 Secondly, Mr Przybylowski's claim of a breach of natural justice (ground 2) and a breach of procedural fairness (ground 3) must fail. Grounds 2 and 3 fall to be considered together, given that there is no distinction between an allegation of a breach of natural justice and a breach of procedural fairness (Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 583-4 (Mason J)). 33 Mr Przybylowski produced no evidence and made no submissions indicating that there was any breach of procedural fairness at the hearing before the primary judge. Furthermore, 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 intervener's submissions which had been filed in support of the intervener's application for summary dismissal. Mr Przybylowski, who represented himself at the hearing at first instance, made submissions with the assistance of an interpreter. No complaint is made about the quality of interpreting provided. It follows that Mr Przybylowski was appraised of the relevant issues raised by the intervener's summary dismissal application and afforded an opportunity to respond in writing and orally at the hearing. There is therefore nothing to indicate that there was any breach of procedural fairness in the Court below. 34 Thirdly, as the intervener correctly submits, there is no error apparent in the primary judge's finding that the judicial review claim was non-justiciable. The crux of Mr Przybylowski's claim in the Court below related to his dissatisfaction with the decision of the President not to take certain proceedings before the ICJ. For reasons explained by Kirby J in Thorpe (at 797) and relied upon by the primary judge, it is clear that the relief sought by Mr Przybylowski was not justiciable and his claim for relief was completely hopeless. This was a complete answer to his application for judicial review and the primary judge was therefore correct to summarily dismiss the judicial review application. In those circumstances, it is unnecessary to consider whether there was any error in the balance of his Honour's careful consideration of the merits of Mr Przybylowski's judicial review application and complaints to the Commission which had not been raised on judicial review. That said, however, there is no error identified in, or apparent from, the balance of the primary judge's reasons. To the contrary, the primary judge's reasoning is plainly correct.

4.3 Additional matters raised by the applicant's submissions 35 By submissions filed on 22 November 2021 (November 2021 submissions), Mr Przybylowski sought a number of additional orders. These are equally without any merit. 36 First, none of the claims for relief were made in the proceedings at first instance and therefore could not establish error in the decision of the primary judge. Nor is it possible to discern from Mr Przybylowski's submissions the basis on which the orders are sought. For example, insofar as he asserted an entitlement to compensation in the sum of AU$1,755.482, Mr Przybylowski provided no rational or comprehensible basis for the award of compensation. Furthermore, to the extent that Mr Przybylowski seeks to collaterally challenge other decisions of this and other courts, that challenge would constitute an abuse of process. 37 Secondly, Mr Przybylowski sought a vexatious proceeding order by the Court on its own motion against the respondent "which limit the Respondent(s) ability to make further documents against the government's Facts and Evidences made on 23 November 2020". Again, Mr Przybylowski failed to give any rational or comprehensible explanation for the order sought; nor is there any basis in the material before the Court for the making of a vexatious proceeding order against the respondent. To the contrary, in this and related proceedings, the Commission has only ever been a respondent to proceedings brought by Mr Przybylowski and has played no active part in the proceeding, filing submitting appearances save as to costs: see also Przybylowski v Australian Human Rights Commission [2018] FCA 25; Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473 at [2] (Perry J); Przybylowski v Australian Human Rights Commission [2021] FCA 1398 at [2] (Cheeseman J); Przybylowski v Australian Human Rights Commission [2022] FCA 1249. I also note that in these cases, as well as in the present case, it is the claims by Mr Przybylowski which have been described as hopeless, incomprehensible, having no reasonable prospects of success, and/or an abuse of process: Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473 at [32] and [40] (Perry J); Przybylowski v Australian Human Rights Commission [2021] FCA 1398 at [45] (Cheeseman J); Przybylowski v Australian Human Rights Commission [2022] FCA 1249 at [43] (Perry J); Przybylowski v Australian Human Rights Commission [2022] FedCFamC2G 1072 at [42] (Manousaridis J).

CONCLUSION 38 It follows for these reasons that the proposed grounds of appeal from the decision of the primary judge are hopeless and it is not therefore in the interests of justice to grant leave to appeal. The application should be refused with costs. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Perry.