Shumack v Commonwealth of Australia

REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) 1 This is an application for leave to appeal from orders of the Federal Magistrates Court, dismissing the applicant's application to that court on the ground that Peter Shumack had no reasonable prospect of successfully prosecuting the proceedings he had brought: Shumack v Commonwealth of Australia [2009] FMCA 428 at [25]. The federal magistrate was exercising jurisdiction to deal with the proceedings before him summarily under s 17A(2) of the Federal Magistrates Act 1999 (Cth). That is a cognate provision with s 31A of the Federal Court of Australia Act 1976 (Cth). 2 Mr Shumack has not filed a draft notice of appeal with his application for leave. Instead, he has filed an affidavit that makes a range of assertions about matters that do not identify any question or finding in his Honour's judgment. On an earlier occasion, I had directed Mr Shumack to file written submissions in support of his application for leave to appeal, and he complied with that order. I have read his written submissions and remain unable to detect any identification there of an error by the trial judge. 3 The requirements for an applicant to satisfy a court to obtain a grant of leave to appeal are well established. The applicant for leave must establish that the decision in question is attended with sufficient doubt to warrant the grant of leave and must also show that substantial injustice will result from a refusal of leave to appeal: Bienstein v Bienstein (2003) 195 ALR 225 at 231 [29] per McHugh, Kirby and Callinan JJ. 4 During the course of today I sought to inquire of Mr Shumack what error or errors of a legal or factual nature he claimed the trial judge had made. Mr Shumack made generalised assertions of bias and prejudice and concealment by his Honour. Those assertions are nonsense and completely unsubstantiated. They were made without any foundation and there is no material before the Court to support any suggestion that his Honour had behaved otherwise than with appropriate judicial impartiality. Mr Shumack asserted that he had been the victim of ongoing acts of political violence and that the Federal Magistrates Court had been endeavouring to cover up the true facts. Again, those assertions have no factual basis. Again, Mr Shumack put no material before the Court to support them. 5 On 11 December 2008 the Commonwealth had applied to the trial judge under s 17A of the Federal Magistrates Act for the proceedings to be summarily dismissed. His Honour acceded to that application ordering Mr Shumack to pay the Commonwealth's costs. The trial judge delivered a reserved judgment. I specifically inquired of Mr Shumack whether he could point to any factual error in what his Honour had set out as the facts. He was unable to do so, except to make suggestions that his Honour had confused some of the proceedings Mr Shumack had brought in the High Court in 2004 and 2006. His Honour had set out in his reasons for judgment parts of an ex tempore judgment given by McHugh J In the matter of Environment Australia; Ex parte Shumack [2004] HCA Trans 367. 6 His Honour summarised the original affidavit Mr Shumack had filed with his application to the Federal Magistrates Court. In that affidavit he made assertions (without substantiation) that he had been the subject of criminal and political conspiracy, the subject of a contract that he be murdered, the subject of victimisation, criminal defamation, some unspecified form of covert surveillance by members of the government of the Australian Capital Territory, and that Environment Australia or the Department of State administering matters to do with the environment had instigated against him systematic extortion and blackmail between 1983 and 1997. His Honour also noted that Mr Shumack had filed a later affidavit on 28 January 2009 in which he added to his complaints, allegations of breaches of the Human Rights Act 2004 (ACT) of the Australian Capital Territory, bias and prejudice by the respondent's solicitor, and a number of other criminal allegations against persons. 7 His Honour said that by and large the material put forward by Mr Shumack comprised mere assertions, similar to those which were made before me. I find, too, that Mr Shumack's complaints in these proceedings are mere assertions. 8 His Honour noted that over the years Mr Shumack had pursued various avenues seeking redress for a claim that he had made that he had been constructively dismissed from his former employment as a landscape architect within Environment Australia in October 1997. In essence, these proceedings appear to be part of that matter or its sequelae. His Honour identified the history of Mr Shumack's attempts to revive his employment following his voluntary redundancy in 1997. He had filed an application in February 2003 with the Australian Industrial Relations Commission seeking relief for that alleged termination but the Commission dismissed it as having been filed outside the 21 day prescribed period under the then provisions of s 170CE(7) of the Workplace Relations Act 1996 (Cth). The Commission refused to grant an extension of time and a Full Bench subsequently dismissed his application seeking leave to appeal. He then applied to the High Court and McHugh J dismissed that application in the decision to which I have referred. An application seeking leave to appeal from McHugh J's decision was subsequently dismissed. Mr Shumack then filed a further application with the Commission in May 2007 in relation to the alleged termination of his employment. The Commission refused to accept that further application pursuant to s 673 of the Workplace Relations Act. 9 His Honour noted that McHugh J had held that Mr Shumack had no prospect of success in relation to his earlier application in the High Court in 2004 for writs of mandamus, certiorari and prohibition and that his application did not disclose any arguable claim for constitutional relief against the respondents. 10 His Honour accepted the Commonwealth's contentions that Mr Shumack had not been able to establish the jurisdictional thresholds that attracted the Federal Magistrates Court's jurisdiction to entertaining a claim by him. 11 First, Mr Shumack claimed that the Federal Magistrates Court had jurisdiction in respect of his claim that he had some cause of action under s 30K of the Crimes Act 1914 (Cth). That section prohibits anyone, by violence to the person or property of another person, or by spoken or written threats or intimidation without reasonable cause or excuse, boycotting or threatening to boycott persons or property from, among other things, preventing a person from offering or accepting employment within the Commonwealth or its authorities. It creates an offence punishable by imprisonment for one year. There was no provision conferring criminal jurisdiction on the Federal Magistrates Court to deal with matters arising under s 30K. His Honour was correct to dismiss that application as having no reasonable prospect of success. It was an abuse of the process of the court, perhaps brought about by Mr Shumack's misunderstanding of the court's jurisdiction. 12 Secondly, Mr Shumack sought to invoke the then provisions of s 663 of the Workplace Relations Act. However, as his Honour found, Mr Shumack could not do so because he failed to satisfy the pre-condition in s 663(5), that Mr Shumack had first to receive a certificate from the Commission that it had been satisfied that all reasonable attempts to settle the matter by conciliation were or were likely to be unsuccessful in relation to any part of his claim. Accordingly, the trial judge was correct to conclude that Mr Shumack had failed to establish that it had any jurisdiction at all. 13 Thirdly, his Honour also concluded that the other claims made by Mr Shumack had not been established under other provisions of the Workplace Relations Act, including s 847(4), which conferred jurisdiction on the Federal Magistrates Court with respect to matters arising under that Act. 14 In considering proceedings under s 17A of the Federal Magistrates Act or s 31A of the Federal Court of Australia Act the Court is required to address whether the party against whom the application is made has any reasonable prospect of successfully, in this case, prosecuting the proceeding or the part of the proceeding in issue. The Court looks at the proceedings as a matter of substance. In Wills v Australian Broadcasting Corporation (2009) 173 FCR 284 at 292-293 [43]-[45] I summarised the principles in a way with which North and Emmett JJ agreed. I noted that the Court is not concerned in such applications with mere pleading points but with substance and not form. I also noted that proceedings involving parties who represent themselves pose particular difficulties for courts. Self represented litigants often have little legal training but frequently take considerable effort to try to make themselves familiar with aspects of the law or the Court's procedures which they see as being relevant to their case with greater or lesser degrees of accuracy. Of course, the judge or court cannot be placed in a position where any of the litigants before the Court perceive that it is assisting a litigant in person in a way which comprises the integrity and impartiality of the hearing. 15 In this case I have made allowance for the fact that Mr Shumack has represented himself and he has done so courteously and has obviously made considerable efforts to try to present the grievance that he sees as being within the jurisdiction of the Federal Magistrates Court. However, he has not persuaded me that the Federal Magistrates Court made any error at all. I have also read carefully his Honour's judgment and the material that Mr Shumack has filed in these proceedings, together with what has been filed on behalf of the Commonwealth. 16 In my opinion, the proceedings seeking leave to appeal are frivolous and vexatious and an abuse of the process of the court on the ground that they are doomed to fail, since they do not identify any basis on which his Honour can be said to have erred. His Honour was entitled to form the evaluative conclusion that, despite the fact that Mr Shumack's material raised what he called an astonishing range of assertions, none of them were supported by any credible evidence. His Honour concluded that the requirements of s 17A(2) of the Federal Magistrates Act were clearly and strongly made out. 17 Not only do I see no error in his Honour's conclusion, in my opinion, it is undoubtedly correct. The Court must be able to protect itself from abuses of process by the bringing of proceedings which can clearly be seen to be foredoomed to fail: Walton v Gardiner (1993) 177 CLR 378 at 393 per Mason CJ, Deane and Dawson JJ. 18 Mr Shumack's application for leave to appeal has no prospect of success. There is no factual or legal error identified by him, or apparent to me, on careful consideration of his Honour's judgment that has been established, let alone one that would warrant a grant of leave to appeal. Nor could there be any injustice in refusing leave to appeal in the circumstances. 19 The Federal Magistrate urged Mr Shumack to have regard to some remarks McHugh J had made to him now almost five years ago, that he ought to try and put behind him the grievance he has against his former employer, arising from what happened in 1997. I can only urge Mr Shumack to give careful thought to that. Whatever sense of grievance he might have, leading him to bring proceedings that, like these, have no prospect of succeeding, he must realise he will expose himself to orders for costs. 20 In my opinion, the application for leave to appeal must be dismissed. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.