Sheikholeslami v Brungs

REASONS FOR JUDGMENT 1 The applicant on 17 May 2005 filed an application under s 46PO of the Human Rights and Equal Opportunities Commission Act 1986 (Cth) seeking an apology and damages in respect of loss and detriment caused to her while employed by the University of New South Wales. The application makes claims in respect of alleged discriminatory acts during the period from 2000 to 2004 for mental anguish, for defamation, for loss of opportunity for advancement, for distress and for costs. 2 The matter has had a long history and in the light of this history the respondents seek an order dismissing the applicant's claim. The respondents' application is brought pursuant to O 35A r 3(1) of the Federal Court Rules which empowers the Court to dismiss proceedings where the applicant is in default of Court orders, and also under O 20 r 2 on the ground that the proceedings are an abuse of process or frivolous or vexatious. On the hearing to dismiss the proceeding the applicant was represented by counsel. 3 Since the commencement of the proceedings in May 2005, there have been eleven directions and interlocutory hearings and repeated failures by the applicant to cooperate in bringing the matter to a hearing. The applicant has also made several applications to the Court devoid of merit or substance. On 23 September 2005, the applicant was ordered to provide particulars of her claim by 14 October 2005. On 17 October 2005, the applicant refused to provide the particulars requested and filed an affidavit contending that the letter of request was not "a legal document." In particular, she refused to give details of compensation sought, to provide an expert report, to specify alleged defamatory statements, to identify work done since October 2004, or to identify acts of discrimination alleged. There was no justification for, nor substance in, the applicant's grounds for refusal. The applicant was again requested to provide particulars after this refusal but failed to do so. In order to progress the matter, the first respondent then decided to file a Defence without first obtaining particulars. There was no satisfactory explanation advanced by the applicant for refusing to provide the particulars requested. 4 On 25 November 2005, the parties were ordered to provide limited categories of discovery by 16 December 2005. The applicant did not do so. The second respondent, the University of New South Wales, filed a Defence on 4 January 2006. 5 On 16 December 2005, the applicant filed an affidavit which claimed that she did not possess, and had never had possessed, any document required to be discovered. This assertion has since been demonstrated to be clearly untrue, as the applicant has now produced over 10,000 pages of documentation. The applicant submitted that she believed the documents to be in possession of the respondents and that she therefore did not have to discover them. Again, this is clearly not tenable. It appears from material subsequently produced on subpoena that in fact there were many documents which come within the classes called for in the discovery categories that should have been discovered and were not discovered. 6 On 16 February 2006, the Court granted leave to the respondents to issue a subpoena since the applicant had refused to give discovery. The Court dismissed an application by the applicant to strike out the respondents' discovery request. 7 On 24 February 2006, the applicant refused to produce the documents that were the subject of the subpoena. On 10 March 2006, I dismissed the applicant's Motion alleging that there was no proper discovery by the respondents and ordered her to pay costs. As mentioned earlier, the applicant finally produced in response to the subpoena a CD-Rom which I am informed contained in the order of 10,000 pages of material. 8 The documents on the CD-Rom were produced in response to the same categories as set out in the original discovery order, in respect of which the applicant had earlier made a false affidavit. The PDF file saved on the CD-Rom was produced was "locked," meaning that the some 10,000 pages of documentation included in this file were available only in a "Read Only" format and could not be printed from a computer. Moreover, the CD-Rom was accompanied by a letter from the applicant asserting that the CD-Rom produced only on the condition that its contents were not uplifted. On 3 April 2006, leave was granted to the respondents to uplift the documents on the CD-Rom so they could be examined. The documents were not classified or selected in any systematic way. From the evidence available, it appears that a significant proportion of the documents were not responsive to the subpoena. This was pointed out in a letter from the respondent's solicitors to the applicant dated 11 April 2006. 9 On 21 April 2006, I made orders striking out the applicant's Notice to Admit Facts dated 12 April 2006, which was made on a totally untenable basis. I rejected the applicant's application for leave to serve a subpoena and ordered that the applicant not be permitted to take further interlocutory steps without leave of the Court. I also confirmed my previous order of 10 March 2006 that the applicant file and serve all her evidence by 28 April 2006. On that date, the applicant swore an affidavit in response to this order that simply listed several paragraphs each referring to a bundle of documents relevant to a particular year. A typical paragraph is as follows: '2. Annexed and marked "A" is the Applicant's evidence pertaining to material generated in 1995.' 10 The remaining ten paragraphs were in similar form, taking the matter up to 2005 in annual increments. No annexures were attached to the affidavit. 11 On 1 May 2006, the applicant enclosed by way of service the annexures to the affidavit of 28 April 2006 which were presented in the form of four lever arch volumes of material. The annexures comprised simply bundles of documents for each year. 12 It is obviously not possible for the respondent to prepare a case in response to this material in any meaningful way. Within this material there is no reference to any conversation or factual context which identifies a specific instance of discrimination on any proscribed ground. Nor does the affidavit refer to the verification of any of the material or indicate of the relevance of any particular documents or records. In other words, there is no indication as to what the mass of material provided with the affidavit relates to. This "affidavit" and its annexures are vexatious on their face and clearly do not comply with the Order given by the Court to file evidence. Despite the fact that the applicant had the benefit of twelve months to formulate and prepare her case, the Court was presented with a mass of unlinked material and no factual exposition of the applicant's position. On 18 May 2006, the applicant filed an affidavit which stated that to the best of her knowledge, ability and belief the applicant had complied on time and in accordance with the Federal Court Rules with all Court Orders made in the matter and with all directions given by me. This is not correct.