Simjanovska v Department of Human Services

GRIFFITHS J: 1 The applicant seeks leave to appeal from the primary judge's orders made on 11 April 2019, which summarily dismissed under s 31A of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and r 26.01 of the Federal Court Rules 2011 (Cth) (2011 FCRs) the applicant's amended judicial review application. The judgment is reported as Simjanovska v Department of Human Services [2019] FCA 499. 2 The applicant also seeks leave to appeal from various procedural orders made by the Court, including orders made on 26 March 2018, which had the effect of restricting the ways in which the applicant could file or collect documents in the proceeding. 3 The applicant contends in the alternative that leave to appeal is not required and that she is entitled to appeal as of right. For the reasons given hereafter, I reject that contention and consider that leave to appeal is required and should be refused. 4 It should be noted that on 16 October 2019 the applicant's request for the proceeding to be adjourned was dismissed for reasons set out in Simjanovska v Department of Human Services (No 1) [2019] FCA 1703. Those reasons for judgment contain relevant background matters to the present application for leave to appeal. 5 At the commencement of the hearing on 18 October 2019, the applicant made a further request for an adjournment so that the hearing would occur early the following week. She said from the bar table that she felt very tired and had not had any sleep the night before. She also pointed to the fact that the hearing had been deferred by one day previously from 17 to 18 October 2019 at the request of the second and third respondents and she said that it was therefore appropriate for her to have the benefit of a similar adjournment. The application was opposed. It was refused for reasons which I said I would set out in these reasons for judgment. The application was unsupported by any independent medical evidence and the Court considered that it was in the interests of justice that the hearing proceed as scheduled, there being no proper basis shown by the applicant for proceeding otherwise. To my observation the applicant was well able to present her case. 6 There is one further matter which should be mentioned now. At the beginning of the hearing, the applicant requested that the Court Officer in attendance disclose her name. This was because the applicant said that she had seen the particular Court Officer at a shopping centre recently and that the Court Officer had positioned herself in a way that she could be photographed by CCTV cameras together with the applicant. The applicant asked in the alternative that another Court Officer be appointed to assist in the conduct of the hearing. The Court stated that neither of those requests would be granted and that the proceeding would continue with the experienced and trusted Court Officer in attendance.

Summary of background matters 7 The primary judge noted at [2] that many of the grounds set out in the applicant's amended originating application for judicial review were "vague, conclusory, repetitive, and confusing". With no disrespect, the same may be said regarding the applicant's amended application for leave to appeal which runs to 46 pages, as well as her submissions and evidence. A copy of the amended originating application became Exhibit A in the present proceeding. 8 The applicant did not dispute the accuracy of the primary judge's description at [2] of her Honour's reasons for judgment that the relief sought against the Department of Human Services (Department) and the Secretary of that Department (Secretary), as well as the Australian Information Commission (Commissioner), primarily related to: (a) the alleged systematic and continuous "handling" of the applicant's complaints to the Department under the Privacy Act 1988 (Cth) (Privacy Act); (b) the creation and disclosure by the Secretary of a document entitled "Employment Pathway Plan Agreement" (EPPA) in the applicant's name and without her knowledge and consent; and (c) in the case against the Commissioner, the applicant challenged a decision of the Commissioner's delegate (Assistant Commissioner) to exercise the discretion under s 41(1)(a) of the Privacy Act not to investigate the applicant's complaint under that legislation. 9 The primary judge noted at [20] that the affidavits relied upon by the applicant in opposing the applications for summary dismissal totalled over 650 pages, including annexures. 10 At [30]-[39], the primary judge described various matters concerning the creation of the EPPA which her Honour described as "non-contentious", presumably because they were taken from material filed by the applicant in support of her amended originating application. The primary judge noted at [34] that although the applicant sought relief in relation to the EPPA, which she contended contained false information which had been created without her knowledge and consent, her complaint to the Department was expressly premised upon the fact that she was receiving Newstart allowance, as recorded in her letter dated 3 January 2014. The primary judge also noted that it was common ground that the applicant did not sign the EPPA but that she had in fact received Newstart for the period covered by the EPPA. At [39] the primary judge referred to the Department's letter dated 21 July 2014, which responded to the applicant's complaints concerning invasion of her privacy. That letter stated that the Department had "scheduled an appointment with you to review the contents of the EPP in which you declined to sign a new EPP". 11 At [40] to [41] the primary judge described matters surrounding the Assistant Commissioner's decision not to investigate the applicant's privacy complaint. 12 The primary judge summarised (correctly) at [21]-[26] some relevant principles regarding the duties owed to an unrepresented litigant such as the applicant (referring to Hamod v New South Wales [2011] NSWCA 375 at [309]-[313]), as well as general principles governing summary dismissal (referring to the summary in Riva NSW Pty Limited v Official Trustee in Bankruptcy [2017] FCA 188 at [45]-[50] which drew on authorities including Spencer v The Commonwealth of Australia [2010] HCA 28; 241 CLR 118). Her Honour then summarised facts relating to the applicant's central complaint that the EPPA (and possibly the documents attached to it) were false, created without her knowledge or consent, and were unlawfully disseminated without her consent, contrary to the Privacy Act. Her Honour also summarised the Assistant Commissioner's decision. 13 It is desirable to say something now about the procedural history below, which is outlined by the primary judge at [42] to [54]. These matters include the circumstances surrounding the orders made on 26 March 2018, in respect of which the applicant now seeks leave to appeal. The primary judge described a case management hearing conducted on 13 December 2017, at which time the summary dismissal applications were set down for hearing for a half a day on 26 February 2018. The hearing proceeded as scheduled but further orders were made on that day for the parties to file further evidence and submissions to address concerns raised by the applicant shortly before the hearing that there had been "unprecedented attempts to prevent [her] from filing the documents" in the nature of "criminal attacks" and that she had been "sedated through… food and drinks". She also suggested that there were "illegitimate 'shadow' proceedings" on foot. Order 8 made on that day required the name of the first respondent to be changed from "Department of Human Services - Legal Services Division" to "Department of Human Services" and for the first respondent to be referred to in that way in documents on the Court file. 14 Evidently, on 2 March 2018, the applicant attended the Court Registry. As noted by the primary judge at [50], on 19 March 2018, the applicant emailed the Registrar and complained that she had been "improperly" removed from the Registry by Court Security. On 13 April 2018 (i.e. after the orders were made on 26 March 2018), the applicant emailed the Registry and claimed that she had been "insulted, attacked and abused" in a separate incident in the Registry and that the requests by Registry staff for assistance from security were in order to make "unlawful, compensation claims in an organised way, and by unlawfully using customers' personal information". Her Honour described these accusations at [50] to be scandalous and without foundation. She added that the correspondence raised serious questions as to the Court's work, health and safety responsibilities in respect of the Court officers serving the applicant. Her Honour added at [50] that she "was also informed by Registry staff that it had been necessary to call the police to provide Court Security with appropriate support". 15 It is well to set out [51] of the primary judge's reasons for judgment, which both record and relate to the orders made on 26 March 2018, which are now sought to be challenged by the applicant (along with Order 8 made on 26 February 2018): On Friday, 23 March 2018, Ms Simjanovska requested access by email to the transcript of the interlocutory hearing to assist her in preparing this further evidence and submissions. On 26 March 2018, and in light of the preceding matters, I made orders that 1. Subject to leave of the Court, the parties are to file any further material either: a. electronically; or b. during business hours, in hard copy at the front desk located on the ground floor of the Law Courts Building at 184 Phillip Street, Sydney, NSW 2000 (Law Courts Building). 2. Subject to leave of the Court, the applicant is not to attend the Registry of the Federal Court of Australia (Registry) in person. 3. The applicant is to be provided temporarily with a copy of the transcript of the interlocutory hearing dated 26 February 2018, which is to be returned to the Registry in accordance with Orders 1 and 2, within 28 days of the matter being finalised, including any appeal or application for leave to appeal. THE COURT NOTES THAT: 4. A copy of the transcript referred to in Order 3 above will be available for collection by the applicant from the front desk located on the ground floor of the Law Courts Building from 10 am on Tuesday, 27 March 2018. 16 At [52] of the primary judge's reasons for judgment, it is noted that the applicant was informed that the primary judge's reasons for having made those orders were to ensure that "all Court staff are to be treated with courtesy and respect at all times… [and] to ensure there is no further behaviour towards Registry and Court staff which is unacceptable, while also ensuring that parties' access to the Court for the purpose of filing documents in the proceedings is unimpeded". The orders dated 26 March 2018 were made in Chambers and without prior notice to the applicant or the other parties. 17 The primary judge noted that in mid-April 2018, the applicant foreshadowed an intention to appeal against the orders dated 26 March 2018 and to seek the primary judge's recusal. Leave was granted for her to do so on or before 25 May 2018. In the event, no such interlocutory application was filed, nor did the applicant file any further evidence or submissions in relation to her claim that there had been interference with the evidence previously filed by her, notwithstanding that she was granted several extensions of time to do so, the final extension expiring on 13 April 2018. 18 Returning now to the respondents' applications for summary dismissal, after outlining the relevant statutory provisions in the Privacy Act and the Australian Privacy Principles, the primary judge gave comprehensive reasons at [74] to [124] as to why the applicant's complaints concerning her privacy were without merit, were vexatious and had no reasonable prospects of success. 19 At [125] to [146], her Honour then explained, at some length, why the applicant's claims against the Department and the Secretary lacked reasonable prospects of success and should be summarily dismissed. At [133] to [135], the primary judge described the orders sought by the applicant against the Department and the Secretary. Her Honour then gave comprehensive reasons starting at [136] as to why the Court would not grant the relief sought, including the relief she sought against the Commissioner. Those reasons included the applicant's failure to identify any statutory or common law right grounding the injunctive relief she sought; the lack of any power in the Court to make an open-ended order for review of specified conduct in accordance with the Public Service Act 1999 (Cth); and the lack of any tenable basis on which to grant relief sought to set aside the documentary foundation for the applicant's entitlement to Newstart payments which she in fact received. The primary judge also explained how other relief sought by the applicant was not grounded in any legal right known to law. Her Honour concluded at [146] that many of the applicant's factual claims were unsupported by any credible evidence and were not linked with any legal right. 20 Her Honour then explained at [147] why the applicant should not be given a further opportunity to re-plead her case. 21 For all those reasons, the applicant's proceeding was summarily dismissed with costs under s 31A of the FCA Act and r 26.01 of the 2011 FCRs.

Principles guiding the determination of an application for leave to appeal 22 The relevant principles are well settled. They were recently described by the Full Court in Ah-Chee v Stuart [2019] FCAFC 165 at [11]-[13]: 11. The relevant principles guiding the consideration and determination of an application for leave to appeal were not disputed. There are no rigid rules, but it is well settled that key considerations which bear upon the exercise of the Court's discretion include: (a) whether in all the circumstances the decision of the primary judge is attended by sufficient doubt to warrant it being reconsidered by the Full Court; and (b) whether substantial injustice would result if leave were refused, supposing the decision is wrong. 12. Those two limbs are cumulative and each limb needs to be made out (Rawson Finances Pty Limited v Deputy Commissioner of Taxation [2010] FCAFC 139; 81 ATR 36 at [4]-[5] per Ryan, Stone and Jagot JJ). The two limbs are also related (see Cabcharge Australia Ltd v Australian Competition and Consumer Commission [2010] FCAFC 111 at [20] per Kenny, Tracey and Middleton JJ), with the consequence that sufficiency of the doubt in respect of the primary decision and the issue of substantial injustice should not be divided into separate compartments. 13. Other considerations which are relevant to the consideration of the Walka Wani applicants' application for leave to appeal were recently identified by the Full Court in Construction, Forestry, Mining and Energy Union v Australian Competition and Consumer Commission [2016] FCAFC 97; 242 FCR 153 at [14] to [17]: (a) leave is less-often granted where the impugned ruling is discretionary and is on a matter of practice or procedure; (b) appellate intervention in matters of practice or procedure, where no questions of general principle are at stake, has been said to require the exercise of particular caution (referring to Hogan v Australian Crime Commission [2010] HCA 21; 240 CLR 651 at [34] per French CJ, Gummow, Hayne, Heydon and Kiefel JJ and see also Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc. [1981] HCA 39; 148 CLR 170 at 177 per Gibbs CJ, Aickin, Wilson and Brennan JJ); and (c) where, as here, the exercise of discretionary judgment is in question, an error of the kind identified in House v The King [1936] HCA 40; 55 CLR 499 at 504-505 needs to be identified and it is not enough to overturn a discretionary judgment that the appeal judges would have weighed considerations differently to the primary judge.

Grounds relating to the FCA Act and 2011 FCRs (paras 1-3): 28 The applicant seeks leave to appeal not only from the judgment below, but also from procedural orders made by the Court on 26 March 2018, and one of the Court's orders dated 26 February 2018. These case management orders were made pursuant to the express statutory power in s 23 of the FCA Act to "make orders of such kinds, including interlocutory orders, … as the Court thinks appropriate" (and see also s 37M of the FCA Act and r 1.32 of the 2011 FCRs and Nationwide News Pty Ltd v Rush [2018] FCAFC 70 at [2]-[4] per Lee J]). 29 The applicant provides no substantive basis for the unsupported contention that the Court did not have power to make these orders. I will explain below why I also consider that, contrary to the applicant's claim, leave to appeal is required. The procedural orders are on matters of practice or procedure and the applicant has not identified any general principle to warrant a grant of leave. 30 There are additional reasons why the applicant's complaints concerning some of the procedural orders are not arguable (particularly those made on 26 March 2018), as will be explained below.

Breaches of "established principles of law" (paras 4-5): 31 These paragraphs raise allegations concerning concepts such as "due process of law", "equality before the law", "the principle of fairness", "separation of powers", "the presumption of innocence", "model litigant rules", "the principle that no one is the subject of torture and slavery", "the principle of accountability to the law", "the principle of natural justice and procedural fairness and transparency" and "the principles of the supremacy of the law". None of those matters is particularised. They are bare assertions. The failure to provide clear particulars is a sufficient basis upon which to refuse to grant leave: see WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35] per Gilmour J which applies mutatis mutandis to grounds of appeal.

Errors of law in orders and reasons concerning orders dated 26 March 2018 and in the Court's final reasons dated 11 April 2019 (para 17): 43 These complaints overlap with several of the applicant's other complaints and I will not repeat why I consider that none warrants a grant of leave to appeal. There is, however, something more which should be said about the orders dated 26 March 2018 which, as noted above, were made in Chambers and without prior notice to the applicant. At first glance, this might appear to involve procedural unfairness. A moment's reflection reveals, however, that there is no arguable case of procedural unfairness so as to warrant leave being granted in respect of these orders. It is critical to bear in mind the following observations of Hayne, Crennan, Kiefel and Bell JJ in Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; 252 CLR 38 at [156]-[157] (footnotes omitted and emphasis in original), on the central role of "practical injustice" in procedural unfairness: Procedural fairness and the judicial process 156. The rules of procedural fairness do not have immutably fixed content. As Gleeson CJ rightly observed in the context of administrative decision‑making but in terms which have more general and immediate application, "[f]airness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice." To observe that procedural fairness is an essential attribute of a court's procedures is descriptively accurate but application of the observation requires close analysis of all aspects of those procedures and the legislation and rules governing them. 157. Consideration of other judicial systems may be taken to demonstrate that it cannot be assumed that an adversarial system of adjudication is the only fair means of resolving disputes. But if an adversarial system is followed, that system assumes, as a general rule, that opposing parties will know what case an opposite party seeks to make and how that party seeks to make it. As the trade secrets cases show, however, the general rule is not absolute. There are circumstances in which competing interests compel some qualification to its application. And, if legislation provides for novel procedures which depart from the general rule described, the question is whether, taken as a whole, the court's procedures for resolving the dispute accord both parties procedural fairness and avoid "practical injustice". 44 The applicant was invited by the Court to identify any practical injustice which she had experienced arising from the Court's orders dated 26 March 2018. She responded by saying that: (a) she had been the subject of "criminal attacks" which she believed were related to the Court's orders; (b) in buildings or restaurants she attended, security personnel would stand close to her and this started after 26 March 2018; (c) she had received threats to steal her bags and possessions and that there had been threats to throw her onto railway lines, that she had been sprayed with chemicals and that water had been sprayed on her meals; (d) she had suffered a cut to her wrist the previous week; (e) the primary judge's account of the events surrounding the making of the orders had adversely affected the applicant's employment prospects (which were not particularised); and (f) she gave a lengthy description of events which occurred at Dubai Airport when she was flying to Europe at some unspecified time. She explained how she was told by authorities in Dubai that she was unable to fly to her destination because she did not have a visa. She said she was approached by both security and police. She explained how she managed to continue her journey only after she signed, under protest, a document in Arabic which she said contained language reminiscent of that used by Perry J in her reasons for judgment regarding the need to treat people with respect. 45 I am not persuaded that any of these matters amounts to practical injustice within the relevant legal meaning of that expression so as to establish arguable procedural unfairness in the making of the 26 March 2018 orders. The applicant has not demonstrated how any of these claimed injustices are related to the Court's orders dated 26 March 2018. The link which the applicant sees between what happened in Dubai and the reasons given below is, without disrespect, fanciful. 46 There are other matters which I consider reinforce the view that the applicant has not suffered relevant practical injustice. First, it is notable that the 26 March 2018 orders had no effect on the applicant's capacity to file documents electronically. Indeed, it is evident that the applicant availed herself of that mechanism numerous times, both below and in the current proceeding. Secondly, Order 2 was expressed to be subject to the applicant obtaining the Court's leave if she wanted physically to attend to the Registry. Thus, it was open to the applicant to seek the Court's leave if she wished to attend the Registry personally. Thirdly, it is difficult to see any practical injustice in requiring the applicant to file hard copies or collect the transcript from Court Security downstairs, as opposed to in the Registry itself. Fourthly, Order 1 applied equally to all the parties, not merely to the applicant herself. 47 Finally, as to the matters relied upon by the primary judge as justifying the making of the orders dated 26 March 2018, which were not disclosed in advance for the applicant's response, there is no indication that those matters were taken into account by the primary judge other than in respect of the making of those particular orders, in relation to which the applicant has identified no practical injustice. There is no sufficiently arguable procedural unfairness claim to warrant a grant of leave to appeal. 48 For similar reasons, I am not persuaded that the second limb of the test which guides the Court's consideration and determination of an application for leave to appeal is met here. Even if it were the case that the orders dated 26 March 2018 were made without procedural fairness (contrary to what I have said above), I do not consider that substantial injustice would result if leave to appeal is not granted. That is because of the four matters referred to at [46] above.

Erroneous fact finding in the judgment dated 11 April 2019 (para 21): 54 The applicant complains of numerous incorrect findings of fact by the primary judge, including misstating by one day the filing of her amended originating application for judicial review which was filed on 2 August 2018 and not 3 August 2018 as stated by the primary judge several times. That error is a typographical error and is irrelevant. The applicant's suggestion that the error demonstrates that there are "shadow proceedings" on foot is entirely baseless. 55 In assessing the applicant's claims of erroneous fact finding, it is well to bear in mind the general principles which apply to review of fact finding in an appeal proceeding by way of rehearing as described by Allsop CJ in Aldi Foods Pty Ltd v Moroccanoil Israel Ltd [2018] FCAFC 93; 261 FCR 301 at [2]-[3] (emphasis in original): 2. I agree with what Perram J has said about appellate review. This Court is bound, of course, by High Court authority. I agree with what Perram J says about Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679; 331 ALR 550. The Court (French CJ, Bell, Keane, Nettle and Gordon JJ) said the following at [43]: The fact that the judge and the majority of the Court of Appeal came to different conclusions is in itself unremarkable. A court of appeal conducting an appeal by way of rehearing is bound to conduct a "real review" [Fox at [25] per Gleeson CJ, Gummow and Kirby JJ] of the evidence given at first instance and of the judge's reasons for judgment to determine whether the judge has erred in fact or law. If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings [Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479-481; 112 ALR 641 at 646-7 per Deane and Dawson JJ; Fox at [29] per Gleeson CJ, Gummow and Kirby JJ; Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (ACN 007 101 715) (2010) 241 CLR 357; 270 ALR 204; [2010] HCA 31 at [76] (Miller & Associates) per Heydon, Crennan and Bell JJ]. But a court of appeal should not interfere with a judge's findings of fact unless they are demonstrated to be wrong by "incontrovertible facts or uncontested testimony" [Fox at [28] per Gleeson CJ, Gummow and Kirby], or they are "glaringly improbable" or "contrary to compelling inferences" [Fox at [29]. See also Miller & Associates at [76]]. In this case, they were not. The judge's findings of fact accorded to the weight of lay and expert evidence and to the range of permissible inferences. The majority of the Court of Appeal should not have overturned them. (footnotes inserted) 3. The footnotes to the paragraph and the balance of the judgment (see especially at [56]) make it plain that no departure from long-standing principle discussed in Warren v Coombes (1979) 142 CLR 531, Fox v Percy (2003) 214 CLR 118 and State Rail Authority (NSW) v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306; 160 ALR 588 was intended. The references by the Court that "a court of appeal should not interfere with a judge's finding of fact unless they are demonstrated to be wrong by 'incontrovertible facts or uncontested testimony' or they are 'glaringly improbable' or 'contrary to compelling inferences'" should be understood by reference to the footnotes. The references to Fox v Percy at [28] and [29] are plainly to findings of fact reached after assessing competing witnesses for their reliability and credibility. The reference to Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357 at [76] is an indirect reference, in the context of fact-finding involving witnesses, to Fox v Percy at [23]-[29]. These latter references to Fox v Percy are important because they recognise the importance of the advantages of the trial process discussed by Kirby J in SRA v Earthline at [89]-[91] and adopted by Gleeson CJ, Gummow J and Kirby J in Fox v Percy at [23]. The whole of [20]-[31] of Fox v Percy is important and I do not read the Court in Robinson Helicopter as saying at [43] that any finding of fact made by a trial judge can only be interfered with if the expressions referred to above and derived from Fox v Percy are satisfied. The findings of fact of the trial judge in Robinson Helicopter were made after a trial of five weeks in which close to 20 witnesses gave oral evidence, whose evidence had to be assessed, balanced and evaluated as the case unfolded. The trial judge had the advantages of seeing lay and expert witnesses in assessing their credit and reliability, and he also had the advantages of the kind discussed in SRA v Earthline including "the unique benefit of viewing two helicopters of the kind which crashed … [and] … the opportunity to consider all of the evidence in its totality and to reflect upon its interaction": 90 ALJR 679; 331 ALR 550 at [57]. 56 The applicant has not satisfied me that these principles are met, even on an arguable basis, so as to warrant a grant of leave to appeal in respect of any of the allegedly erroneous findings fact of which she complains. 57 Some of the alleged erroneous findings of fact relate to matters such as the primary judge's summary of the applicant's claims and references to the name of the first respondent on documentation. Other alleged errors do not relate to findings of fact. The applicant has failed to demonstrate how any errors in respect of the matters raised in these paragraphs in her proposed grounds of appeal mean that the primary judgment is attended by sufficient doubt to warrant its reconsideration by a Full Court. 58 It should also be noted that in the final particular of paragraph 21, the applicant simply refers to "Other errors of facts". Those errors are entirely unparticularised. This is not the only instance where the applicant makes broad and unparticularised claims. Plainly, such nebulous claims cannot attract a grant of leave.

(2016) 90 ALJR 679

(1993) 177 CLR 472

(2010) 241 CLR 357

(1979) 142 CLR 531

(2003) 214 CLR 118

(1999) 73 ALJR 306

[2010] HCA 28

[2010] HCA 21

[1981] HCA 39

[2010] HCA 31

[2014] FCA 507

[2009] FCAFC 117

[2017] FCA 188

[2019] FCA 1149

[2013] FCA 1251

[2019] FCA 1703

[2010] FCAFC 139

[2010] FCAFC 111

[2016] FCAFC 97

[1936] HCA 40