CONSIDERATION
47 I do not consider it necessary to decide whether the contentions of the respondent about the extent of the Court's jurisdiction are correct. The Court has jurisdiction over a matter under s 46PO(1) of the AHRC Act. The allegations in the Further Documents on their face invoke that jurisdiction. Whether they extend beyond the unlawful discrimination in the AHRC Complaint can readily be addressed and necessarily so to decide whether the claims by the applicant in those two sources are the same, or in substance the same.
48 To the extent that the Further Documents in substance go beyond the AHRC Complaint, clearly the Court then may not inquire whether the alleged discriminatory conduct was engaged in, because the limitation in s 46PO(3) must be given effect to. So, put shortly, beyond the unlawful discrimination alleged in the AHRC Complaint, the applicant cannot succeed by securing, or potentially by securing, any finding of such alleged conduct: see eg Charles v Fuji Xerox Australia Pty Ltd (2000) 105 FCR 573; Crvenkovic v La Trobe University [2009] FCA 374.
49 As noted above, the President of the AHRC by her delegate refused to amend the AHRC Complaint made on 29 June 2011 in terms of the letter of the applicant of 8 July 2011, so the Abandonment Allegation is not part of the AHRC Complaint.
50 I have referred above at [19] to the substantive content of the AHRC Complaint. The reference to a "Neil and Nott" apparently is a reference to Neil v Nott (1994) 68 ALJR 509. It is not immediately apparent to me why that reference arises in relation to the applicant. It concerned an application out of time by a widower for provision from his wife's estate when she had not provided for him. The extension of time required to make the application was granted by the High Court in the particular circumstances.
51 It is obvious that the alleged discriminatory conduct in the Initiating Documents, the Amended Documents and the Further Documents extend well beyond the terms of the AHRC Complaint. In fact, the substantive content of the AHRC Complaint is not expressed in any of those three sets of documents.
52 The allegations in the Initiating Documents focus on the proposed HCA Applications as being vexatious and an abuse of process, and the applicant being a bankrupt instituting vexatious proceedings. They also include assertions that the High Court Registry could not understand the applicant's papers "based on his thick Indian accent over the phone on more than two occasions", and allegedly commented that he was engaging in "lunatic Asian behaviour over the phone" and that he was engaging in "vexatious, disabled Asian man's trouble making" and was "a known paranoid schizophrenic" and a "trouble maker between 2008 and 2011".
53 In the Amended Documents, similar substantive allegations are made, possibly extended by assertions that the Relevant Staff referred to the applicant's "lunatic paranoid schizophrenic Asian behaviour over the phone" or his "lunatic geriatric paranoid schizophrenic behaviour over the phone" and that the Relevant Staff know of his disabilities of paranoid schizophrenia and diabetes type two and of his age.
54 In the Further Documents, some similar substantive allegations are made. In addition, for the first time, the applicant asserts that on 9 December 2008, a "most upset" Deputy Registrar Musolino stated to the applicant over the phone:
You are Asian geriatric and for such an age you should show wisdom and so far you have failed to show any such positivism, and instead you have been pestering me and my staff, and multiple inferior course with vexatious claims based on your lunacy and idiocy that encompasses your alleged paranoid schizophrenia.
and further that the applicant rang Deputy Registrar Weybury (in relation to the Second HCA Application) on 5 February 2009 and that he had a "heated argument" with her as she agreed with what the applicant claims Ms Musolino said in the Alleged Statement, and repeated those comments on 9 February 2009, 18 November 2009 and 9 February 2010.
55 The Court's role first is to consider whether the Further Documents plead, and are capable of sustaining, allegations of unlawful discrimination which are the same or substantially the same as those the subject of the AHRC Complaint.
56 In my view, they are not. In particular, the Alleged Statement in the Further Documents bears no substantive comparison with the content of the AHRC Complaint. Nor do the other particulars provided in the Further Documents.
57 That is sufficient to lead to the conclusion that the applicant's claims of discrimination have no real prospect of succeeding because the Court, on the primary application, could not make findings that the alleged discriminatory conduct had occurred. They are not the same, or substantially the same, as the Relevant Conduct alleged in the AHRC Complaint.
58 However, there are additional reasons why, in my view, the applicant has no real prospect of succeeding on his claims of unlawful discrimination.
59 The next is that, on the material before the Court, he would be unable to establish the facts as he alleges them to be. That conclusion does not represent a finding that the applicant is deliberately untruthful. Nor is it, on the other hand, a finding on the balance of probabilities about what in fact occurred. It is a finding that the applicant has no real prospect of establishing the discriminatory conduct on the part of the Relevant Staff that he alleges. In the first place, in relation to the First and Second HCA Applications, their written responses and (as the applicant acknowledged in his submissions) their oral responses concerned the need for the Trustee to provide some acknowledgment (as was given in respect of the Third HCA Application) that the subject matter of the claim was not property which was part of the applicant's estate divisible among his creditors because it fell within s 116(2)(g)(i) of the Bankruptcy Act.
60 That starting point of the Relevant Staff was, at least, a reasonable one having regard to the nature of those claims. It is not necessary to determine if it was necessarily a correct one. The point is that the context of the alleged refusal to accept those two applications does not of itself suggest unlawful discriminatory conduct.
61 Then it is necessary to take into account that the Relevant Staff accepted for filing the Third HCA Application. The only apparent reason why that application then was not pursued is the applicant's failure to comply with the High Court Rules. Had he done so, that matter would have followed the procedural course prescribed in the High Court Rules. It was the applicant's failure to do so, and not any alleged discriminatory conduct, which meant that the application was abandoned by operation of the High Court Rules. Moreover, the contemporary correspondence indicates that in proper (and non-offensive and non-discriminatory) terms the applicant was informed of the requirements of those Rules and the consequences of failing to comply with them. The applicant could not, in that light, successfully show that that proceeding was disposed of by reason of unlawful discriminatory conduct on the part of the Relevant Staff.
62 The contemporary records of communications with the applicant in relation to the First and Second HCA Applications reveal equally proper terms are used. I note too the inherent improbability of either of the Relevant Staff each engaging in more or less the same discriminatory conduct on separate occasions, and each of them persistently engaging as individuals in such conduct over a period of communications.
63 So, if the applicant were to have any real prospect of succeeding, he would have to present cogent evidence in support of his allegations. Without making any finding about his subjective truthfulness, in this instance it is apparent that overall such evidence as he might give could not have that degree of cogency. I note the following objective matters:
(1) the differences between the terms of the AHRC Complaint and the allegations in the Applicant's Documents;
(2) the differences between the terms of the allegations in the Initial Documents, the Amended Documents and the Further Amended Documents; and
(3) the evolving details of the dates of the alleged communications.
Particulars of those dates were provided in the Amended Documents, but they were then significantly altered in the Further Documents (that is, between 9 January 2012 and 4 April 2012). The applicant accepted in oral submissions that the dates were altered because the respondent had pointed out that seven of the twelve dates referred to in the Amended Documents must have been incorrect either because the High Court Registry was not open on those dates or in one case because that date did not exist.
The applicant's June Affidavit said that he stood by the originally pleaded dates (para 6(v)), although they had been changed in the Further Documents. That affidavit also exhibited a letter of one David Botin dated 5 November 2011 apparently to the Australian Federal Police. It is in the following terms:
I was in Ranjit Rana's home, and listened to all conversations via his extension phone in matters: Patricia M Tragaur phone call 24/11/2008, R. Mussolino 9/12/2008, 18/2/2009, 19/22009. Then again Patricia M Tragauer on 3/2/2009. Then further with D. Weybury on 3/2/2009, 5/2/2009, 9/2/2009. Lastly matters concerning R. Musolino on 29/8/2011, 14/8/2008 and 13/9/2011.
I vouch the affidavit of Mr. Ranjit Rana concerning the above cited by me dates. I am willing to come from Nepal to testify on all matters providing to bear my costs.
The applicant could not explain how the dates in that letter corresponded only with the dates in the Further Documents. Nor could he explain what "affidavit" the letter refers to: it does not refer to either of the affidavits of the applicant filed in this proceeding, nor to the Initiating Documents (at one point the applicant suggested Mr Botin saw a draft of the Statement of Claim or a draft of his affidavit of 19 January 2012, but he did not persist in that).
In the end, the applicant could not explain how Mr Botin in November 2011 was able to vouch for an affidavit of his, or how Mr Botin knew the dates which the applicant did not allege until the Further Documents. The applicant in his oral submissions ultimately said that he did not know what was in Mr Botin's mind or how he got those dates for his letter.
(4) the timing of the allegations of discriminatory conduct: the allegations were not made until the AHRC Complaint of 29 June 2011, notwithstanding that the alleged conduct in relation to the First and Second HCA Applications occurred in 2008 and 2009, and the applicant's email communications with the High Court Registry during those years makes no allegation of unlawful discriminatory conduct on the part of the Relevant Staff, but disagrees with the views of the High Court Registry that the consent of the Trustee to the institution of those two applications was necessary.
64 Overall, although I do not find that Mr Botin's letter is a forged document created by the applicant to show a genuine and real factual dispute (as was submitted by the respondent), I conclude that the objective matters to which I have referred mean that the applicant has no real prospect of proving that the Relevant Staff did engage in the unlawful discriminatory conduct alleged in the Further Documents. I think such evidence as he has presented to support those allegations has no reasonable prospect of being accepted for the reasons given in the face of the objective facts.
65 Indeed, the applicant said in his reply submissions, his concern is that - in his view - he was entitled to have made the First and Second HCA Applications without providing the consent (or a facilitating letter) from the Trustee, and it was not correct for the High Court Registry to have declined to accept those documents for the reasons given by the Relevant Staff. It may well be that the real position is as simple as a difference of views on that matter. I do not have to decide that.
66 There is a further reason why I consider that this proceeding should be summarily dismissed. It is that, in the light of previous proceedings, the current proceeding is an abuse of the process of the Court. I point out that it is the character of the proceeding, rather than the motivation of the applicant, which is the indicator of whether a proceeding is vexatious.
67 The applicant has already unsuccessfully sought to challenge the refusal of the Relevant Staff to accept for filing the First and Second HCA Applications. The details of those proceedings are referred to at [2] to [10] above. The applicant is really trying again to litigate the way in which the High Court Registry dealt with the First and Second HCA Applications. Although that is now done under the labels of alleged unlawful discrimination, and negligence, there is no reason given why those allegations could not have been made earlier and addressed in the earlier proceeding. In my view, it is oppressive to the respondent to be confronted with the serial challenges to the way in which the First and Second HCA Applications were handled by the High Court Registry. The fact that the applicant is trying to get through another door - by means of the pleaded causes of action - to attack that conduct when he has already done so unsuccessfully was already the occasion of comment in the passage referred to at [10] above.