Summary dismissal
33However, the mere fact that a pleading is to be struck out, pursuant to r 14.28 of the UCPR, does not always mean that the proceedings should also be summarily dismissed under r 13.4 of the UCPR.
34In order to make such an order, the Court needs to be satisfied that:
(a)the proceedings are vexatious or frivolous; or
(b)no reasonable cause of action is disclosed; or
(c)the proceedings are an abuse of the process of the Court.
35Generally, summary dismissal of proceedings is inappropriate unless the court is satisfied that a plaintiff's claim or claims can be described as "so obviously untenable that it cannot possibly succeed". Authorities by which I am bound make this abundantly clear. I shall briefly discuss the principal ones.
36Over 100 years ago, in the High Court of Australia, O'Connor J in Burton v Shire of Bairnsdale [1908] HCA 57; (1908) 7 CLR 76 at 92 said:
"Prima facie every litigant has a right to have matters of law as well of fact decided according to the ordinary rules of procedure which give him full time and opportunity for the presentation of his case to the ordinary tribunals, and the inherent jurisdiction of the Court to protect its process from abuse by depriving a litigant of these rights and summarily disposing an action as frivolous and vexatious will never be exercised unless the plaintiff's claim is so obviously untenable that it cannot possibly succeed."
37Over 60 years ago, in the High Court of Australia, Dixon J said in Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 at [13]:
"The application is really made in the inherent jurisdiction of the court to stop the abuse of its process when it is employed for groundless claims. The principles upon which that jurisdiction is exercisable are well settled. A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the Court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process."
38Over 40 years ago, in the High Court of Australia, Barwick CJ said in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at [8]:
"... the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion.
...
... the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action ... is clearly demonstrated. The test to be applied has been variously expressed; 'so obviously untenable that it cannot possibly succeed'; 'manifestly groundless'; 'so manifestly faulty that it does not admit of argument' ...".
39Over 25 years ago, the High Court of Australia said in Fancourt v Mercantile Credits Limited [1983] HCA 25; (1983) 154 CLR 87 at [27]:
"The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried."
40About 10 years ago, in the High Court of Australia, Gaudron, McHugh, Gummow and Hayne JJ said in Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 at [57]:
"Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way."
41Most recently, in the High Court of Australia, French CJ and Gummow J in Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 18 said at [24]:
"The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action or on the basis that the action is frivolous or vexatious or an abuse of process. The same applies where such a disposition is sought in a summary judgment application supported by evidence. ..."
42In light of these authorities, a careful examination of the claim is necessary.
43In support of the Statement of Claim's standing, and of his being entitled to continue with the litigation, Mr Rahman filed 17 pages of additional submissions accompanied by a bundle of documents. He also made oral submissions. It will be necessary to return to one of those documents in due course.
44However, It is appropriate to tease out from the document entitled "Additional Submissions", the submissions which Mr Rahman appears to be making. It has to be said that the document entitled "Additional Submissions" in large part copies, word for word, what appears in the Statement of Claim.
45Curiously, one change in the parties to the proceedings between the statement of claim, which I have described above, and these documents entitled "Additional Submissions" is that the three named individual defendants are not referred to, but the title of the document names as the first defendant, University of Technology Sydney.
46Leaving aside those parts of the Statement of Claim which have simply been copied across to the Additional Submissions, it appears that paragraphs 44 and 45 of the Statement of Claim have been replaced by paragraphs 44 through to 47 of the "Additional Submissions". Of importance in these paragraphs is assertions, proved by the documents which accompanied these submissions, that there have been, in 2011, two decisions which are the relevant decisions for the purposes of Mr Rahman's inability to attend at UTS.
47It is best if the essence of these two decisions of UTS is described here.
48In a letter dated 20 July 2011, from the Associate Dean (Teaching and Learning) of the Faculty of Law, Mr Rahman is informed:
"I refer to your application for readmission to the University of Technology Sydney commencing in Spring 2011.
Your application for readmission has been considered by the Faculty of Law on the basis of the documentation provided by you. The Faculty considered your application for readmission in accordance with r 5.11 of the Student and Related Rules which requires that you show cause as to why you should be readmitted.
The Faculty concluded that the documentation submitted provided no reasonable basis for it to allow readmission."
49The letter goes on to inform Mr Rahman of the address for any request for a review.
50Clearly, there was then a request for a review. The terms of that request is not before me, but the response from the Vice Chancellor of UTS is. On 9 August 2011, the Vice Chancellor of UTS, Professor Ross Milbourne, wrote to Mr Rahman in these terms:
"The Associate Dean (Teaching and Learning), Faculty of Law, wrote to you on 20 July 2011 advising that the Faculty had declined your application for readmission.
On 30 July 2011, you emailed the Senior Deputy Vice Chancellor requesting a review of the Faculty's decision. In accordance with r 5.11.6 of the University Rules, and in the absence of the Senior Deputy Vice Chancellor, I have reviewed the Faculty of Law's decision and the arguments you provided in your email of 30 July 2011 requesting a review of that decision. I confirm that the decision stands. Your application for readmission therefore remains as declined."
51In the "Additional Submissions" to the Court, Mr Rahman refers to these documents and quotes from a part of the letter of the Vice Chancellor of UTS. He then makes this assertion:
"And, thus in doing such acts by the Officials, UTS the applicant construes are of violations of:
UNHR - Human Rights Article 26 Right to education - ICCPR - article 14, 1966 [entry into force 1976],
International Covenant on Economic and Social and Cultural Rights [Australia is a Signatory and ratified State] Article 13(1) Right of everyone to education (c) Higher education ... of free education) and Anti-Discrimination Act NSW ..."
52The next paragraph seems to encapsulate the case that Mr Rahman really wishes to make. It is in these terms:
"Throughout the proceedings the applicant submits with evidences of documents in court will testify that the defendant - University of Technology, Sydney - UTS has not submitted any defence for the legitimacy of such acts of 'infringement of educational right' since 2009 to 2012. And thus validates the applicant's relief claims for such acts by the University of Technology - UTS [Officials] in the submitted documents of such legitimate claims and for justice for the cause of UTS decisions that are not legitimate under substantive law of NSW but are of: discretion not obedient to the 'rule of law' since on 19 June 2009."
53In short, it seems that Mr Rahman wishes to contend that the conduct of UTS, by its various officers, contravened a right, personal to him, of education, created by one or other or all of:
(a)Article 26 of the Universal Declaration of Human rights which provides:
"Everyone has the right to education ... Technical and professional education shall be made generally available and higher education shall be equally accessible to al on the basis of merit";
(b)Article 14 of the International Covenant on Civil and Political Rights which does not refer to education but rather equality before the Courts and standards which relate to the conduct of criminal proceedings; and
(c)Article 13 of the International Covenant on Economic, Social and Cultural Rights which reads:
"(i) The States parties to the present Covenant recognize (sic) the right of everyone to education ... [and that] ...
(c) Higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means ..."
54The balance of the submissions seems to make assertions covering allegations involving:
(a)counsel for all of the defendants having committed some unspecified crimes;
(b)allegations that decisions of McCallum J and Registrar Bradford were an abuse of judicial discretion;
(c)allegations that justice has been perverted, obstructed, prevented and disobeyed by both counsel for the defendants and by Judges or other judicial officers of the Court; and
(d)there have been breaches, unspecified in nature, or by whom, of Article 70 of the Rome Statute of the International Criminal Court and the International Criminal Court Act 2002 (Cth).
55The causes of action based upon breaches of various international covenants and the Universal Declaration of Human Rights, are not justiciable in this Court. There is no domestic legislation, either of the Commonwealth Government, or the NSW Government, which make these international laws part of the domestic law of NSW. A breach of the international covenants, and laws, is not of itself justiciable, unless and until a domestic law adopts these international covenants and makes them a law of the State: Minister for Immigration and Ethnic Affairs v Ah Hin Teoh [1995] HCA 20; (1995) 183 CLR 273.
56But even if they were laws of the State, they are not able to be used in the way in which Mr Rahman seeks to use them. They are statements of ambition, broad rights within a community and perhaps, aspirational goals. They do not create a private cause of action lying in the individual against a State, or any other body, which can be sued upon.
57There is no basis at all for any cause of action asserting that counsel for the defendants has committed an unspecified crime nor that there have been breaches of the International Criminal Court Act or Article 70 of the Rome Statue of the International Criminal Court (assuming that it applies directly in Australia). It is unnecessary to determine this question.
58There is no basis for an allegation that the decisions of McCallum J and Registrar Bradford were an abuse of judicial discretion, nor is there any basis for allegations that justice has be "perverted, obstructed, prevented and disobeyed".
59All of these allegations, to my mind, are vexatious and an abuse of the process of court. There is no reason why the allegations should be allowed to stand, or to be made.
60The proceedings as presently constituted insofar as they seek to challenge earlier decisions of UTS are moot. That is because, as the evidence demonstrates, and as the additional submissions of Mr Rahman appear to accept, the decisions which are preventing Mr Rahman attending as a student of UTS are not those sued upon, but rather much later decisions.
61If Mr Rahman has any claim for administrative law relief, and it is far from certain that he does, then it is those decisions which, logically, must be the subject of the proceedings. But they are not.
62In all of the circumstances, it is clear, beyond argument, that the causes of action relied upon are doomed to fail and it is appropriate for the Court, having regard to the terms in which they are alleged, and the absence of any support them, to exercise its discretion and summarily dismiss the proceedings, because no reasonable cause of action is disclosed and, as a result, the proceedings are an abuse of process of the Court.