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[2019] FCA 1703
Federal Court of Australia
2019-10-16
Griffiths J
Original judgment source is linked above.
GRIFFITHS J: 1 The applicant seeks an adjournment of the hearing of her application for leave to appeal which is listed to be heard this Friday, 18 October 2019. She also seeks other related orders. 2 For the following reasons, the request was refused earlier today.
Background matters 3 The applicant seeks leave to appeal from orders made on 26 February 2018, 26 March 2018 and 11 April 2019. The judgment is reported as Simjanovska v Department of Human Services [2019] FCA 499. The applicant also contends that she does not require leave. The applicant's judicial review application was summarily dismissed, primarily on the grounds that the application lacked reasonable prospects of success. 4 The application for leave to appeal was filed on 26 April 2019. Since then there has been voluminous correspondence and much case management activity to have the application ready to be heard and determined. The applicant represents herself. 5 Orders were first made on 2 July 2019 for the filing of any amended application for leave to appeal, supporting affidavits and submissions. The matter was then listed for hearing for one day only on 17 October 2019. Further orders were made on 18 July 2019 which extended the times for filing and serving of any amended application for leave to appeal, interlocutory application, affidavits and submissions. Further extensions were granted on 5 August 2019. On 6 August 2019 orders were made granting the applicant access to audio recordings of Court hearings. Further extensions of time were granted on 12 August 2019, 19 August 2019 and 20 August 2019. The applicant was informed that there would be no further extensions. On 29 August 2019, the hearing was relisted to take place on 18 October 2019 in order to accommodate the availability of the first and second respondents' counsel. On the same day, at the applicant's request, time was extended for her to file an amended application for leave to appeal, supporting affidavits and amended submissions by 2 September 2019 and her reply submissions by 17 October 2019. An amended application for leave to appeal containing an amended draft notice of appeal was filed on 3 September 2019. 6 Late on 4 September 2019, the applicant emailed the Registry and said she had been unable to file various documents within time and she asked for a further extension of time in relation to some matters. The applicant was notified that there would be no further extension of time to the timetable ordered on 29 August 2019 and that her amended application for leave to appeal had been accepted for filing. The applicant was advised on 11 September 2019 by the Registry that it was a matter for her whether she wished to file any interlocutory application before the hearing scheduled for 18 October 2019 and, if she did, the Court would determine when it would be heard. 7 Late on 10 October 2019, the applicant emailed the Registry and stated that she intended to file an urgent interlocutory application seeking an adjournment of the hearing listed for 18 October 2019, as well as suppression of the primary judge's reasons for judgment and the Court's orders which are the subject of her application for leave to appeal. The applicant indicated that she would seek an urgent hearing of those applications on either 16 or 17 October 2019 because, if an adjournment was refused, she needed time to "undertake further actions". She stated that the basis for her adjournment request were her "[e]xceptional personal circumstances" and that she had written to the Attorney-General seeking his intervention, as well as other undisclosed reasons. 8 On the morning of 11 October 2019, the Registry informed the applicant (and the other parties) by email that orders had been made by the Court which required her to file any interlocutory application for an adjournment by 12 noon on 15 October 2019, together with any supporting affidavits, and that any such application would be heard at 9:30 am on 16 October 2019. 9 On 15 October 2019, at 1:47 pm, the applicant filed an interlocutory application in which she sought the following interlocutory orders: 1. Adjourn the hearing of the application for leave to appeal until a suitable date for all parties, in December 2019. 2. Grant leave to file an affidavit that will supersede the existing affidavit, and it will be in support of the Amended Application for Leave to Appeal and Amended Draft Notice of Appeal; also in support of my application for new evidence to be admitted in the proceeding. 3. Grant leave to amend my submissions, also considering the above order sought No 2. 4. Grant an adequate time for the Respondents to Reply to the amended submissions, my affidavit, and my application for additional evidence to be admitted in the proceeding. 5. Grant an extension of time for filing of my submissions in Reply in accordance with the time table for the orders sought above in this document. 6. Alternatively, if the Court accepts my claim and my arguments in paragraph 3 of my Amended Draft Notice of Appeal that the leave to appeal is not required considering Subsection 24(1B), also subsection 24(1C)(a), of the Federal Court of Australia Act 1976, the Court should give directions for the preparation and hearing of the Appeal. 7. A copy of the judgment that was given by Justice Perry on 11 April 2019, which is sealed with the Registrar's seal and includes the name of the signatory and the proper position of the signatory of this judgment, be given to me. 10 In support of her application, the applicant relied upon an affidavit sworn by her on 15 October 2019. It is appropriate to set out the body of that affidavit in full and without alteration. 1. I am the Appellant. I am self-represented Appellant. I have prepared by myself all documents that I have filed in the matter before the Federal Court of Australia, (the 'Court'), in Elka Simjanovska v Department of Human Services & Ors,, File No NSD416 of 2017. I will also refer to this proceeding in this affidavit as being 'the primary proceeding'. I have also prepared by myself all documents that I have filed in this proceeding on appeal, in Elka Simjanovska v Department of Human Services & Ors,, File No NSD621 of 2019, to date. I have never been represented by anyone before the Federal Court of Australia. I have never had proceedings, and I have never been a party, before the Circuite Court of. 2. The facts and claims set out in this affidavit are true based on my own knowledge and they are true to the best of my knowledge, recollection, belief, and information based on my enquiries of the relevant matters. 3. This affidavit supports my urgent interlocutory application, filed in the Court in this matter on appeal in Elka Simjanovska v Department of Human Services & Ors, File No. NSD 621 of 2019, on 15 October 2019. Application to adjourn the hearing 4. I apply to the Court to adjourn the hearing in the proceeding on appeal, which has been listed by the Court, on 18 October 2019, at 10:15am, until a date that is suitable to all parties, in December 2019. I make this application for the reasons which include, but are not limited, to those that are outlined in this affidavit. Exceptional personal circumstances 5. Since I have expressed my intention to proceed with the filing of the primary proceeding, which is referred to in the above paragraph [1] of this affidavit, including during the period of filing and conducting of the primary proceeding and after that to date, I have been subjected to continuous, also frequent criminal attacks, by perpetrators who I consider act in an organised way. As a result of it I have suffered some injuries; I have also suffered some losses of my properties, including my computers and documents and evidence for these proceedings; I have been subjected to threats and intimidations, including threats to my well-being and my life; I have been victimized; I have been exposed to a conduct that I consider constitute torture and slavery in accordance with the internationally accepted definitions about it; there have been frequent attempts to undermine my professional and personal credibility, also my credibility as a witness and applicant in the legal proceedings before the Court, in a way that I consider has been very brutal and perverse; I have been subjected to a constant and deliberate annoyance by perpetrators who act in an organised way; and there have been many other unlawful activities that have been undertaken towards me. I consider that my life has been made very difficult because of all these and because of my legal proceedings before the Court. 6. I consider that these criminal attacks and other forms of unlawful activities against me are related to my legal proceedings before the Court against the Department of Human Services, the Secretary of the Department of Human Services and the Australian Information Commissioner, also my proceedings against Mr G Segal, former Deputy District Registrar of the Court; and the complaint that I lodged against Justice Katzmann. I have formed this opinion also considering the timing, the frequency and the nature of the criminal attacks and the unlawful activities against me, the documents that were targeted during these attacks, also sometime from the words I have heard from the perpetrators. 7. I further consider that the orders given in the primary proceeding by Justice Perry, on 26 March 2018, and the judgment given in the same matter on 11 April 2019, which I claim are improper in law and include many incorrect findings of facts, have also caused substantial increase of the criminal attacks and other unlawful activities against me, which have become very frequent, very vicious, very brutal and perverse. The consequences from these orders have caused substantial loss and damages to me, also enormous pain and suffering. 8. I consider that these criminal attacks and other unlawful activities against me have also very substantially increased during the last several weeks before the listed hearing on 18 October 2019, and during the period I have been preparing documents for this hearing. I have been attacked in some way nearly every day, and almost in any place where I go. I consider that the attacks on me aim to I prevent me from completing the documents and attend the hearing. They also attempt to damage my well-being, in order to justify the incorrect, inaccurate, misleading, also false and consider fabricated records and personal information that have been crated and used about me by the Department of Human Services without my knowledge and consent, for more than a decade. 9. I have provided evidence about some of the criminal attacks and other unlawful activities about me and some of the consequences I have suffered from it, further below in this affidavit. 10. I claim that the subjects of my primary proceeding are related to an organised fraud, and other unlawful activities, which I consider operate within the Department of Human Services, within some Employment Services Providers and other institutions. I formed this opinion considering my evidence and my personal experience with the Department of Human Services, also conversations I had with other recipients of social security benefits. I consider that my evidence about these claims is solid, and it's able to demonstrate some of these unlawful activities. I consider that this is the main reason I have been continuously and frequently attacked in order to be prevented from finalising my documents and attending the hearing on 18 October 2019. 11. I claim that the loss, damages, pain and suffering, also injuries I have suffered from the criminal attacks and other unlawful activities against me during the last several weeks, and continuously for number of years, are one of the reasons I have applied for the adjournment of the hearing on 18 October 2019. Destruction of my computers and loss of documentary material for the hearing 12. During the last several weeks I have also done some preparations for the hearing on 18 October 2019. I have selected and analysed material and case law that support my Application for Leave to Appeal. I also continued to work on the material for the amended submissions and my affidavit with amended content of the already filed affidavit in this proceeding, which I was prevent from filing before the due date because of the criminal attacks and other difficult circumstances. I consider that I continued to have frequent unauthorised intrusions into my computer and with my documents to date, in order to prevent me from finalizing the documents for this proceeding, and to prevent my preparation for the hearing on 18 October 2019. 13. During the same time with my preparation for this proceeding on appeal during the last several weeks, I also intended to lodge my submissions to the inquiry by to the Senate Standing Committees on Community Affairs, of the Australian Parliament, about the Newstart Allowance, including the irregularities with the signing of the Employment Pathway Plan (the EPP) agreement, which is also one the main subjects of this proceeding. One day before the lodgement of my submissions to the Australian Parliament my computer stopped working, following what I consider were some unauthorised intrusions into my computer. I was informed by the person who provided service for my computer that it's likely that the computer might not be able to be repaired any longer, and that to attempt to repair the computer will need considerable amount of time, it will cost, and in the end, it might not work again. So, I concluded that I had to buy a new computer. 14. On 12 September 2019, I attended the Officeworks Pitt Street, Sydney, to buy a new computer. I requested to buy the computer that I was able to afford, however I was immediately told that they don't have the computer on that day, and that they will be able to order the computer a day later, which was too late for me. I was also shown a sticker on which it was stated that the computer is out of stock. I had no other choice than to buy a second-hand computer, as I had no time to search for a new computer of affordable price. So, I bought a second-hand computer. I attached to this affidavit the receipt for this computer from the shop '011 Computer', dated 12 September 2019, as Annexure ES1. 15. After I bought a second-hand computer on 12 September 2019, I went to Officeworks again for something else. I noticed that the sticker with "out of stock" information wasn't any longer at the computer I wanted to buy, even though I was told that they will need more than one day to get the computer. I have spoken to one of the managers in Officeworks, and I was informed that they already had the computer in stock for two days, and he didn't know why I wasn't given to buy the computer. Considering all circumstances and what has occurred last week, I have concluded that someone in Officeworks has arranged the computer not to be sold to me in order to prevent me from preparing the submissions for the Parliament, as well as the documents for this proceeding. 16. I have constant interruptions with the second -hand computer that I bought, also continuous problems with the touch ped and the mouse, which were not there when I bought the computer. I was also subjected to constant unauthorised intrusions in any place I went to do some work on the documents. I was not able to make much progress with any documents and preparations that I was doing during this time. 17. The Standing Committees on Community Affairs, of the Australian Parliament, has extended the due day for filing the submissions to the inquiry about the Newstart Allowance. In the morning on 30 September 2019, I've started finalizing the preparation of the evidence for these submissions. I was working in the food court at 52 Martin Place. I used one USB for the work I was doing, and the other USB's I kept in a small white plastic bag, which I believe I left next to me, or I putted in one of my bags. I have been keeping these USBs in my pockets almost all the time, as I was aware that the documentary material of the USBs was targeted. Some USBs with the same documents were previously stolen. I have moved from one to the other table at one point because of the power point, when I've realised that the USBs are no longer with me. I have searched around for the USBs and I couldn't find them anywhere. I reported it to the security at 52 Martin Place. In the first instance I was informed that they are not able to see me on their cameras and that they can't say what has happened with the USB's. 18. I went the next day at the food court at 52 Martin Place, and I've seen the location of the cameras. I was of the view that I should have been seen on the recording from the cameras. I went to speak to the security again, when they give me a different information than the previous day. I was told that they can see me on the cameras, however they can't see anyone approaching my table to take the USBs. Considering that the security gave me two different versions, I went to speak to the manager security. He has reviewed all cameras once more and he informed me that he is of the view that I put the USBs into my bag, which was a third different information I have received. 19. On 30 September 2019, after the search for my USBs at 52 martin Place, I went to the State Library of NSW, and put my bags in the locker, as they don't allowed access to certain areas with bags. So, it I put the USBs in my bag, the USBs should have been there when I have taken the bags out of the lockers. However, when I went to take the bags from the locker, one of the bags I wasn't able to take out by using my password. I was getting a message that the locket has been jammed. I have been going to this library for a number of years, and I have never received any such message. I had to call the security to open the door and the door was opened without my password. I couldn't see any problem with the locker. I have checked all contents of my bags in the evening on 30 September 2019, however my USBs were not there. I have lost large material that I have prepared for the hearing, as well a material that I intended to use in support of my submissions in Reply. Some of that material was also lost when my computer was destroyed on 12 September 2019. I was using that material from the USBs that have disappeared on a very mysterious way. 20. I have reported the disappearance of the USBs to the NSW Police Force. I attach a copy of the report number that was given to me by the NSW Police Force as Annexure ES2, to this affidavit. I consider that there were some irregularities in the Police Station in Hurstville during the time I made the report. I was treated improperly by one of the officers, who I believe he made an attempt to disregard my reporting. I was also told that the Police Station doesn't have a workable photocopier to photocopy my evidence. So, I will have to go once more to make the formal statement about the disappearance of the USBs. 21. I have been having significant problems reporting the criminal attacks on me with the NSW Police Force. I also have reason to believe that someone might have created incorrect records about me in order to prevent my reporting. I form this opinion from some of the information that has been given to me by some police officers. I also sent to the NSW police Force three requests for access to information. Two of them were never responded to. One was decline, I believe on improper grounds. So, I have to apply again. 22. Last week when I've started the preparations for my submissions in Reply, and to continue with my preparation for the hearing that is listed on 18 October 2019, the second-hand computer that I have bought on 12 September 2019, has suddenly developed some serious problems, and I wasn't able to continue with my work. I had to again by a new computer. I attempted to buy a new computer for a few days until yesterday, I was getting information that they either don't have in stock the computer I wanted to buy, or wanted to sale to me the last open computer that has already been used. 23. I was in a very difficult position as I had to file the documents by 12:00pm today. So, I went again to Officeworks in Pitt Street yesterday morning, as I was hoping that the situation might have improved after I complained about what has happened on 12 September 2019. When I asked to buy a computer, they told me that they have a computer in stock. So, I bought the computer. I attach the receipt for this computer as Annexure ES3 to this affidavit. I was hoping that I will be able to complete the documents by the due time today. I have installed the computer and the programs. I was only able to work on the documents for the interlocutory application that is filed today, since yesterday late afternoon. 24. Since I've started working on the new computer, the problems have started immediately. The time of the computer is not working properly. It operates approximately two hours behind the real time, and I am not able to change it in any way. The automatic change of time is not working, as well. The computer has developed further problems. The touch ped and the mouse have the similar problems with the computer that was broken last week. The progress on these documents has been very slaw, as the cursor and zoom are constantly changing. It has now developed further problems with the margins of the paragraphs, which are visible in the second part of this document, and on this paragraph as well. I am not able to move the text in anyway, so I left it in this way. 25. Considering the problems that are described in this part of the affidavit, I am not able to complete the preparation for the hearing on 18 October 2019. I am also not able to complete the submissions in Reply as I was directed by the Court. Injuries I have suffered from the criminal attacks and other unlawful conduct 26. I have suffered substantial injuries, including some sever pains, from the continuous and frequent criminal attacks on me. I have made some photos of the injuries I have suffered, however I was not able to download them from my phone for some reason, even though I have attempted to do that on several different computers. I will try to find someone to assist me with these problems, and bring the photos at the hearing that has been listed for tomorrow, 16 October 2019, at 09 : 30 am. I will have to urgently move to a new place to live 27. I have been living in extremely difficult circumstances for several years. I consider that this is a consequence of the incorrect, false and fabricated records created by the Department of Human Services; and the exploitation of me by the department of human services, also a victimisation because of my pursuing of these proceedings. I have been sleeping in an open garden of a restaurant for several years, excluding few months when I was in Europe. I haven't been allowed to rent a place to live, as I believe that someone is obtaining unlawful payments for accommodation in my name, while I sleep in an open space, including for a few winters. There is some evidence about the incorrect and false records related to my accommodation that have been created by the Department of Human Services, which I have filed in the primary proceedings, however Justice Perry has determined that I shouldn't be given an opportunity to be heard about it, and about the other what I consider are more than one hundred breaches of the Privacy Act 1988, and interference with my privacy, by the Department of Human Services, which have been created for similar unlawful purposes and exploitation of me 28. This situation has now been exploited by the perpetrators of the criminal attacks on me, and I will have to urgently move to a proper place to live. I have also some severe pain from the criminal attacks, also from sleeping on cold weather for very long time. I am 58 years old, and this are very difficult conditions for me. 29. I also consider that this time, my life, my safety and my security, are seriously in question because of these conditions, and I will have to do everything within the next few weeks to arrange to move to a proper place to live. In these current conditions, I am not able to prepare myself for the hearing on 18 October 2019. Other Grounds 30. I will submit the other grounds and some additional evidence at the hearing tomorrow, 16 October 2019, at 09 : 30 am, as I have to go now and file this affidavit. 11 The first and second respondents objected to large parts of the affidavit, on grounds which included that much of the material was in the nature of a submission and not evidence; and that parts simply represented the applicant's own belief or state of mind and should attract an order under s 136 of the Evidence Act 1995 (Cth). The evidence was admitted subject to those objections, with which I agree. 12 With the Court's leave, the applicant gave additional evidence orally in support of her interlocutory application. As best as that evidence can be understood, the applicant said that one ground for her application for an adjournment was the alleged interference with her conduct of the proceeding by Registry staff. She claimed that errors had been made within the Registry regarding the recorded date of filing of one of her documents, that two members of Registry staff in particular had been attending to her case and that one Registry member had impermissibly interpreted the Court's orders. She also said that one Registry officer was using an email address which was not known to the applicant. The applicant tendered an exchange of correspondence between her and the Registry. The applicant said that she considered that these matters confirmed her view that there were "shadow proceedings" being run. When asked to explain what she meant by that, the applicant said that this occurred in her country of origin, where there would be one set of formal proceedings where applicants' claims failed but another set of parallel proceedings in which compensation would be awarded secretly to a third party. 13 In her oral evidence, the applicant said that she had also written to the Attorney-General seeking his intervention and that she was awaiting a reply and receipt of the appropriate forms for her complete in this respect. 14 The applicant also stated that she was being harmed on an almost daily basis. She said that the harm was being inflicted in an organised way by a group of perpetrators. She said that she was being harmed by the use of toxic substances, was being physically beaten (including at a railway station), that a bottle of alcohol had been thrown at her at a railway station, and that she had been sprayed with a white powder under the door of a toilet cubical, which caused severe irritation to her skin. She said that she was being subjected to interference by electronic devices. The applicant claimed that some of the persons who had caused her harm had made reference to the possibility that she might get help from an unidentified "Judge". 15 The applicant confirmed that the main ground for her adjournment request related to her current living arrangements. She confirmed that this had been a problem for several years and that she was sleeping in a garden attached to a restaurant and found that her sleep was severely interrupted. 16 The applicant said that she believed that someone was "exploiting her credentials". She added that she believed that there was a deliberate campaign being conducted against her to prejudice her preparation in the proceeding by reference to what had happened to her computers and her USBs being stolen. 17 Finally, the applicant alleged that one of the Court's registrars, together with one of the Justices of the Court, had assisted the perpetrators in destroying relevant evidence.
Consideration and determination 18 The applicant, who has represented herself since the commencement of this proceeding (and also represented herself below), has not persuaded me that the hearing should be adjourned. She has known since 2 July 2019 that the hearing was scheduled to take place on 17 October 2019 and, since 29 August 2019, that the hearing had been deferred for one day to 18 October 2019. She has had ample time to prepare her case, noting too that the Court has granted several extensions of time already to enable that to occur. 19 The difficulties the applicant says she has experienced with computers are insufficient to warrant an adjournment. The applicant says that she acquired a second-hand computer on 12 September 2019, which is more than four weeks ago. Her suggestion that someone in the store where she bought it tampered with it so as to prevent her preparing documents for both the Parliament and the Court is entirely speculative and unsupported by any independent evidence. It also lacks common sense. 20 The applicant's evidence concerning the USBs is not persuasive. Whatever the applicant says she was previously told, it makes sense that she was told by the security officer who had reviewed all the CCTV footage that he believed that she put the USBs into her bag. Assuming that the USBs disappeared from the locker at the State Library, as alleged by the applicant, that occurred on 30 September 2019, which is more than two weeks ago. The applicant has had time to overcome that difficulty. 21 If it be the case that the applicant's personal computers were malfunctioning as she claims, computer facilities are available at public or community centres, such as the State Library or a municipal library. The applicant confirmed that she had made frequent use of those facilities at the State Library, but she added that she had to compete with other computer users and that the time available there was limited. She also said that someone sent school children there to disturb her. I am not satisfied that these practical difficulties, which presumably affect all the computer users at such places, provides a sufficient basis for adjourning the hearing. 22 As to the applicant's claims that she has suffered various injuries, no medical evidence has been provided in support of those claims and to demonstrate that the injuries affected her preparation for the hearing. I am not satisfied that she has established that any of those injuries, which she says have occurred over several years, have significantly affected her capacity to prepare her case. There is no evidence to link any such injury to the applicant's conduct of these or her earlier proceedings in this Court. 23 The applicant has not identified with any specificity any material which she proposes to introduce in a further affidavit, nor any further submissions which she proposes to make to supplement those already filed by her, save for the "new evidence" relating to the applicant's claim that a Registrar and Judge of this Court have assisted "perpetrators" in destroying evidence. 24 As was pointed out during the course of the hearing, under the existing orders of the Court, the applicant has until close of business tomorrow to file her outline of written submissions in reply. She will also have an opportunity to supplement her submissions orally at the hearing on 18 October 2019. With that in mind the Court indicated that the hearing on 18 October 2019 will now commence at 9:45 am to provide a reasonable period for the applicant to present her case, including any submissions in reply. 25 The applicant's living arrangements are evidently challenging and regrettable, but they do not justify the adjournment which she now belatedly seeks. As noted above, the applicant stated that her living arrangements have been a problem for "several years". They are not new. It is evident from the history of the present proceeding and the proceeding below that, despite the apparent significant practical difficulties created for the applicant by her homelessness, that generally she has managed to conduct her case. 26 As to the applicant's request that she be given a copy of Perry J's judgment dated 11 April 2019 which has been signed by her Honour's Associate, a copy was handed to the applicant at the hearing on 16 October 2019. 27 The Court has given careful consideration to the matters raised by the applicant in her affidavit and in her oral evidence and submissions, but it is mindful of the history of the proceeding as outlined above and the desirability of there being finality in litigation, consistently with the overarching purpose expressed in ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth). The evidence she has given is weak and does not support any adjournment.
Conclusion 28 For these reasons, the Court made orders earlier today that the interlocutory application filed on 15 October 2019 be dismissed, with costs. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths.
Simjanovska
Department of Human Services