Sheikholeslami v Brungs

1 This is an application made by the applicant for leave to file out of time an application under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (the "HREOC Act"). Previous proceedings were brought in the Court which culminated in orders being made by Tamberlin J on 28 July 2006 in which his Honour dismissed the applicant's application on an interlocutory basis: see Sheikholeslami v Brungs [2006] FCA 933. His Honour's reasons are set out in those published on that day. Those reasons are before me. 2 The applicant sought leave to appeal from the reasons of Tamberlin J. That matter was heard by Gyles J on 20 December 2006 who dismissed the application: see Sheikholeslami v Brungs [2006] FCA 1781. I do not propose to set out in detail what both Tamberlin J and Gyles J said. The reader of these reasons should understand them to be given with full background of the reasons of Tamberlin J and Gyles J. 3 The claim which the applicant brought in what I will refer to as the earlier proceedings in this Court, being those disposed of by Tamberlin J in the original jurisdiction last year, concerned the same matters and complaint as the current application concerns. The parties through their legal representatives have helpfully brought together the relevant evidence in this case and may I at the outset thank counsel and solicitors on both sides for the clarity with which they have presented the material. 4 The earlier form of the application under HREOC Act, is contained in tab 1 to exhibit 1 which is the exhibit to the affidavit of Mr Mattson. This was the application that was before Tamberlin J when his Honour made the comments that he did in his reasons. Whilst, as I said, I will not repeat in extenso the comments of Tamberlin J, it is important to begin the analysis of this application by reference to the history. 5 In effect, the same application was brought on an earlier occasion and the respondents and the Court were treated in the way that Tamberlin J identifies in his reasons. Litigation, as has been said on numerous occasions throughout history, is a difficult and trying undertaking. It is the exercise in the form of the exercise of judicial power of a governmental task or function to resolve controversies between parties. 6 Litigation, however, is a matter of great expense and great strain. This is so not only for applicants but also for respondents, including institutional respondents. It is an important function of the Court not to add unnecessarily to that expense by allowing cases to move forward which should not be allowed to move forward. Equally, the Court should be astute not to cut off cases which should be allowed to proceed. 7 In this application the applicant seeks to persuade me through counsel, Mr Britt, that she should be allowed an extension of time to call upon the aid of the judicial power of the Commonwealth to remedy wrongs which she perceives to have been inflicted upon her by the first and second respondents. I think it can be said from the material that is before me, and it is not said in the slightest way critically or disrespectfully of the applicant, that she has a strongly-held view that she has been wronged by the first and second respondent. 8 However, in conducting her litigation in 2005 and 2006 before this Court, she approached the matter in a way described by Tamberlin J in his reasons. This, as Mr Britt says, was behaviour in relation to the totality of proceedings and not merely the pleadings but that is of no moment. The reasons of Tamberlin J display that the applicant, to a significant degree through her lack of cooperation, engaged in conduct which was oppressive to the respondents and which placed the Court in a position where it was obliged to use the powers that it did in making the orders last year. 9 That cannot be ignored. Also I take into account as a not insignificant aspect of the matter is that one of the respondents is an individual. The other respondent is the University of New South Wales. The allegations are serious and go to the professional and personal integrity of all those involved. That is not to say that an application properly made should not be allowed to proceed. Mr Britt in his careful and thoughtful submissions on behalf of the applicant has pointed out that under the HREOC Act and Order 81 of the Federal Court Rules, what is required of an applicant is not a strict pleading. That goes without saying. Regard need only be had to s 46PR of the HREOC Act. However, I agree with Ms Sharp that the framework of analysis of the exercise of the discretion which is before me should be an understanding of how the applicant has approached her claim in this Court in the earlier proceeding. The parties have addressed me both orally and in writing based on the comparison between the current application and the draft form 167 and, in particular annexure A to that document, with the documentation in the earlier proceedings, initiating process and supporting material which is in tab 1 of exhibit 1. I have also had regard to tab 2 of exhibit 1. 10 I do not think these reasons will be assisted by commentary on the detailed analysis undertaken, particularly, by Ms Sharp in her written submissions. I have had regard to those submissions and they have force. However, I think it is fair to say that the drafter of annexure A has taken the matter significantly beyond the form of the documentation that comprised the initiating process in the earlier proceeding. 11 There is a degree of organisation and lucidity to annexure A which is not present in the earlier documentation. That is not a personal criticism of the drafter of the documentation in the earlier proceedings. However annexure A to the current draft form 167 reflects, I suspect, a legal habit of mind and a capacity to formulate matters in coherent ordered fashion required in pleading legal cases. If this were an application being made for the first time without any history at all and this document were being brought forward in an application for an extension of time, I would in all likelihood be prepared to accept the submissions of Mr Britt that, though there was a degree of particularity lacking, with the general affidavit deposing to the accuracies of the annexure that has been provided by the applicant, an extension of time should be given and matters of particularity and evidence should be left to the sensible interlocutory disposition of the matters and the preparation of the matter for trial. 12 However, that is not the background and context which I have before me. I have before me a background in which Tamberlin J has indicated that there was an almost insistent refusal to cooperate. That is not intended to take the matter any further than the text of Tamberlin J's reasons. In those circumstances, I think what I need to be persuaded of in this application is whether it would be just and fair to tax the respondents with the same claim now, better expressed in terms of initiating process, but with the legitimate complaints about lack of particularity that Ms Sharp makes on behalf of the respondents. When I say legitimate I do not mean that they would necessarily be required matters to be pleaded and particularised in a form 167 application but they are matters of lack of particularity which have never been brought forward by the applicant before Tamberlin J and are still matters of detail which will have to be the subject of illumination. To give leave now to this pleading would thereafter place the respondents in the position once again of requiring the sort of information that Tamberlin J's reasons record was not forthcoming in the earlier proceeding. 13 There is a second issue that I need to address before drawing the relevant factors together. Orders for costs have been made in this Court both in the original jurisdiction and the appellant jurisdiction. Not all of those, indeed only some of those, have reached a stage of crystallisation of moneys owed. On the material that is presently available my view is that it would be an injustice to the respondents to require them to meet the case outlined in annexure A without being placed in funds for those Federal Court costs orders. The respondents also claim that they should be paid the costs ordered in the Administrative Decisions Tribunal of New South Wales and the Court of Appeal of New South Wales. I do not have, in my view, sufficient information about the connection and the substance of those actions to properly to draw a conclusion that they are relevant to the exercise of discretion so I set those costs aside. 14 Given the history of this matter, I would not be prepared to allow the application to proceed without the payment of all the costs in this Court. That creates this problem that all those costs are now not known. There are a number of ways to deal with this. There is a possibility of a conditional order, that is by way of a condition precedent or condition subsequent of the payment of costs. 15 It is not, however, just a question of money in relation to past costs. On the material currently before me and with the history of this matter I am not persuaded that I should grant an extension of time. There are a number of alternatives which I could take. The first would simply be to dismiss the application. This is one course that is available. It is available because this application should be looked at in the light of the history of these complaints, and though the annexure A might in other circumstances be sufficient, in the current circumstances, I do not think it can be said to be sufficient. That would simply lead to another order for costs and the ability of the applicant, once again, to bring another application. Another course of action might be to grant leave conditionally. That is unlikely to be satisfactory. 16 What I propose to do is, subject to hearing from the parties, to take an alternative course, not by way of putting off the decision, but in an attempt to deal with both the applications that are before me and the issues that concerned Tamberlin J in a way which requires the applicant to substantiate the very serious allegations that she wishes to make. This course will leave open the possibility that leave be granted if a case can be made out in admissible form that there has been a contravention of one or more of the relevant Acts. In the light of the history described by Tamberlin J, I am not prepared to grant an extension of time on the general assertion in affidavit of the accuracy of the matters in annexure A given the kind of lack of particularity that is involved in it. 17 The applicant has at present a limited source of funds according to the affidavit sworn today. That is another factor affecting my judgment as to whether or not to simply dismiss the application with an order for costs. I think in all the circumstances, subject to hearing from the parties, justice would be better served by taking the course I propose. 18 If the applicant it not able to bring forward admissible evidence in a form which gives the respondents some hope of giving instructions about events between 1999 and 2004, then no leave will be granted. This delay will also allow the completion of the processes as far as they can be completed on the crystallising the orders for costs in this Court. The orders that I propose to make are to adjourn the making of orders on the notice of motion until a time in June, to grant leave to the applicant to apply to re-open her evidence on the notice of motion for the purpose, and only for the purpose, of seeking to rely upon an affidavit or affidavits which in admissible form contain the evidence upon which she will seek to rely in chief at a hearing of this matter and to otherwise adjourn the notice of motion for the making of orders or the application to re-open in the terms that I have identified. 19 I will not make an order at this time definitive of a condition about the payment of costs. My current view is that, on the material that is presently available, this case is not proceeding until all the costs in Federal Court are paid and that it would be unjust and oppressive on the respondents to allow otherwise. However, access to the Courts of the Commonwealth are not shut out to individuals, generally, because of impecuniosity. If it be the case that the evidence filed in admissible form, if unanswered, would lead to a conclusion that there has been contravention of the relevant Acts, it may well be that I would revisit my view about the necessity for the payment of the totality of the costs. I make no comment upon that weighing of those factors in those circumstances. 20 The approach that I have proposed is not one that was sought by either party. I will give the parties an opportunity to address me on these orders. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.