Piepkorn v State of South Australia [2003] FCA 257

FEDERAL COURT OF AUSTRALIA

Piepkorn v State of South Australia [2003] FCA 257

MAGISTRATES COURT – appeal from dismissal of an application to review a decision of a Registrar to refuse to accept a document purporting to be an application – appellant not given opportunity to present her case – breach of procedural fairness – whether on the merits the decision of the Registrar was incorrect.

Federal Magistrates Court Rules 2001, rr 2.06, 20.03 Conciliation and Arbitration Act 1904 (Cth), s 144A(5)

Bizuneh v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 42 cited Licul v Corney (1976) 50 ALJR 439 cited Piepkorn v Caroma Industries Ltd [2002] FCA 182 referred to Re Limbo (1990) 64 ALJR 241 cited Walton v Gardiner (1993) 177 CLR 378 cited HENRIETTE PIEPKORN v THE STATE OF SOUTH AUSTRALIA No S 296 of 2002 von DOUSSA J ADELAIDE 31 MARCH 2003

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 296 OF 2002

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: HENRIETTE PIEPKORN

APPELLANT

AND: THE STATE OF SOUTH AUSTRALIA

RESPONDENT

JUDGE: von DOUSSA J

DATE OF ORDER: 31 MARCH 2003

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. Leave to appeal granted. 2. Appeal dismissed. 3. No order as to costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 296 OF 2002

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: HENRIETTE PIEPKORN

APPELLANT

AND: THE STATE OF SOUTH AUSTRALIA

RESPONDENT

JUDGE: von DOUSSA J

DATE: 31 MARCH 2003

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 This is an appeal from a decision of a Federal Magistrate. The appeal has come on for hearing before a single Judge pursuant to a direction from the Chief Justice given under s 25(1A) of the Federal Court of Australia Act 1976 (Cth). 2 On 12 November 2002 the appellant, Ms Piepkorn, lodged documents entitled "Application" and "Affidavit" respectively at the South Australian registry of the Federal Magistrates Court and sought to have the Application issued. The named parties to the proposed proceedings were the appellant as applicant and "State Government of South Australia". If the proceedings were otherwise in order the true respondent would be "The State of South Australia": see s 5(2(a) of the Crown Proceedings Act 1992 (SA). No point has been taken in the appeal that the incorrect description of the proposed respondent constituted an incurable defect. 3 The South Australian Registrar of the Federal Magistrates Court refused to issue the application. On 26 November 2002 the Registrar advised the appellant: "The application does not appear to formulate any discernible cause of action which would justify proceedings in the Federal Magistrates Court against the State Government of South Australia. I am further of the view that the proposed applications would constitute an abuse of the process of the Court and pursuant to Rule 2.06 of the Federal Magistrates Court Rules I therefore refuse to file the same." 4 Rule 2.06 of the Federal Magistrates Court Rules 2001 (FMC Rules) provides: "RULE 2.06 REGISTRAR MAY REFUSE TO ACCEPT A DOCUMENT 2.06(1) [Reasons for refusal] A Registrar may refuse to accept a document for filing if: (a) the document appears on its face to be an abuse of process or frivolous, scandalous or vexatious; or (b) the document is filed in connection with a pending proceeding and the registry is not the appropriate registry. 2.06(2) [Review of decision] The person seeking to file the document may apply to the Court for review of the Registrar's decision in accordance with Part 20." 5 The appellant sought to review the Registrar's decision. The review was instituted in accordance with the FMC Rules. 6 On 13 December 2002 the review came on for hearing before a Federal Magistrate who peremptorily dismissed the application. The appellant now appeals against that dismissal. 7 At the outset, it is to be noted that the decision of the Registrar made under r 2.06 of the FMC Rules was an administrative decision from which no appeal lies: see Bizuneh v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 42. Hence, r 2.06 of the FMC Rules provides for a review of a Registrar's decision by the Court. A decision of a Federal Magistrate made on an application for review is, however, an exercise of judicial power from which I consider an appeal lies. The decision of the Federal Magistrate in this case is interlocutory in nature as it does not finally determine the rights of the parties: Licul v Corney (1976) 50 ALJR 439 at 441; Piepkorn v Caroma Industries Ltd [2002] FCA 182 at [14] – [15]. Leave to appeal is therefore required pursuant to s 24(1A) of the Federal Court of Australia Act. The requirement of leave has not been addressed by the parties. However, insofar as leave to appeal is required, in the circumstances of this case I consider leave should be granted: see par [19] below. 8 The attempt by the appellant to issue the application, the subject of this appeal, is another step in a long running battle which the applicant has pursued in an attempt to obtain recognition and remedy for perceived wrongs which she says she first suffered in a workplace accident in the course of her employment with Caroma Industries Ltd in about 1984, and has suffered since in the course of pursuing a worker's compensation claim and other related proceedings. The appellant has appeared before this Court on many occasions in the course of pursuing her battle, and on a number of occasions the District Registrar of the Federal Court, pursuant to O 46 r 7A of the Federal Court Rules, has refused to issue proceedings filed by her. In some instances this has occurred at the direction of a Judge. Order 46 r 7A is in terms similar to r 2.06 of the FMC Rules. Piepkorn v Caroma Industries Ltd (above)concerns one occasion where the District Registrar, on a direction from a Judge, refused to issue proceedings, and the appellant brought an appeal before the Full Court. 9 Unfortunately the application and affidavit lodged by the appellant with the Federal Magistrates Court in the present case does not describe in any meaningful way the nature of the cause of action which the appellant seeks to pursue against the State of South Australia. The details of the claim stated in the application are as follows: "On the grounds appearing in the accompanying affidavit or statement of claim the applicant claims: 1. In the matter of constitution 75; being granted through conciliation and arbitration s.144A(5):-51(xxxv.) 2. Constitution 51(xxiv.) used to intervene in a jurisdiction matter. A conflict between state and federal rights. LAW Couts [sic]." 10 The reference to "conciliation and arbitration s.144A(5)" is not meaningful to the respondent, but it is, I think, a reference to s 144A(5) of the Conciliation and Arbitration Act 1904 (Cth). That provision was enacted by the Conciliation and Arbitration (Amendment) Act (No 3) 1977 (Cth), and was repealed as from 1 March 1989 by the Industrial Relations (Consequential Provisions) Act 1988. Subsection 144A(5) provided that: "An employer – (a) shall not dismiss an employee or injure him in his employment, or alter his position to his prejudice, by reason of the circumstance that the employee, being a person in respect of whom there is in force a certificate under sub-section (1), is not a member of an organization; (b) shall not threaten to dismiss an employee, being a person in respect of whom there is in force a certificate under sub-section (1), or to injure such an employee in his employment or to alter the position of such an employee to his prejudice, with intent to coerce the employee to join an organization; or (c) shall not refuse to employ a person in employment by reason of the circumstance that the person, being a person in respect of whom there is in force a certificate under sub-section (1), is not a member of an organization." 11 The supporting affidavit lodged with the application does not help clarify the situation, or to identify a recognised cause or causes of action. The body of the affidavit reads: "1. Seek restitutional relief from the respondent; for the abuse of the applicant Human Legal Rights of Contracts. (i) - the return of power of attorney and credit. 2. The right to enact the statutorial legal rights to prosecute employment contract; termination for a sprained wrist. The industrial contract, matter to be heard in the correct jurisdiction: - Federal: as the employer is Federal. As 51(xvii.) enacted by 51(xxiv.) to prevent prosecution. 3. As the applicant was restricted by the respondent, all human legal rights removed by the power of 51(xxxix.). To prevent prosecution of 51(xxxv.), the statutorial right of the applicant in a Federal Court. (Jurisdiction and Crown Law.) As the applicant has the Human Right to seek justice. 4. As the respondent has breached contract duty of care; condition of contract:- OHS&W. the government third party condition of work agreement. Enacted by his terms and regulation of contract. The respondent has failed by refusing the applicant the Right to Work; removing power of attorney; Credit:- Welfare. 5. Under Human rights the applicant can present this action of common law damage to the court; under Crown Law:- Constitution 75. As the State LAW COURTS contracts have been breached by the respondent; State Government. Also the Federal Appeal Court. State Law Court contracts. Supreme Court contract 2504/87 Piepkorn v. Hockley; Distict [sic] Court contract 469/98 Piepkornn [sic] v. Caroma Industires [sic] Ltd." 12 Rule 2.06(2) of the FMC Rules provides that a review of a Registrar's decision under r 2.06(1) is to be conducted in accordance with Part 20 of the FMC Rules. Rule 20.03 prescribes the procedure for review as follows: "The review of an exercise of power by a Registrar: (a) must proceed by way of a hearing de novo; and (b) may receive as evidence any affidavit or exhibit tendered before the Registrar; and (c) may with leave receive further evidence; and (d) may receive as evidence: (i) any transcript of the proceeding before the Registrar; or (ii) if there is no transcript, an affidavit sworn by a person who was present at the proceeding before the Registrar as a record of the proceeding." 13 When the application for review in the present case came on before the Federal Magistrate, the appellant had placed on file an order made by McHugh J in the High Court of Australia in Action Number A9 of 1995 wherein the appellant was the plaintiff and the State of South Australia was the defendant. The appellant did not file an affidavit giving any explanation or information about the proceedings in the High Court. By inference from the heading shown on the order, the appellant sought to bring proceedings against the State of South Australia in the original jurisdiction of the High Court. The order of McHugh J made on 23 August 1995 ordered that "The Plaintiff's Writ of Summons be set aside". 14 The application for review before the Federal Magistrate in the present case received summary treatment. The transcript records the following interchange between the appellant and the Federal Magistrate immediately following confirmation by the appellant that she appeared on her own behalf: "HER HONOUR: Ms Piepkorn, sorry. I won't ask you to address me at length. Can I tell you that I have perused the documents and the matters set out in the documents. MS PIEPKORN: Yes. HER HONOUR: I have some knowledge of the history of the matter as well, and have had some consideration of that matter and, taking the matters raised in your application – which are brief in any event – into account, I affirm the decision of the registrar and I decline to overturn her decision, and I uphold her decision. MS PIEPKORN: Can I answer that question? If you've read the … HER HONOUR: Ms Piepkorn, that concludes the matter. I have made my order. Thank you." 15 The notice of appeal to this Court specifies only two grounds, namely: "§ Magistrate MEAD FM., 'abused the appellant's human right:- freedom of speach [sic],'. The right of speach [sic] to bring about the legal aspect of law; as to have the process issued.' § The appllant [sic] has legal evidence; High Court Order A9 of 1995, by Justice McHugh. Magistrate MEAD FM; refused to accept party named, and instructed appellant to remain silent on the matter. Freedom of speach [sic] removed." 16 The Federal Magistrate fell into error in conducting the hearing of the review in the peremptory way which occurred. It is fundamental to the exercise of judicial power that parties to proceedings be given a fair opportunity to answer the case which they are required to meet. That is an essential component of procedural fairness. In the present case procedural fairness at the least required that the appellant be given a reasonable opportunity to present her argument in support of her claim that her application should be issued so that her grievances could be aired before the Federal Magistrates Court. 17 It is entirely appropriate that a judicial officer should read the file papers before a hearing commences, and not infrequently the performance of that task will lead the judicial officer to tentative views about the merits of the matter. It is of the essence of procedural fairness, however, that the judicial officer does not close his or her mind to the merits of the case before the parties have the opportunity to be heard. In this case, the events which occurred at the hearing demonstrate that the merits had been judged before the appellant had been given any opportunity to present her case. 18 The application and the supporting affidavit on any reading do not disclose any meaningful cause for complaint by the appellant, let alone a cause of action. However, where a litigant is unrepresented, and has difficulty in expressing himself or herself in a coherent way, I think it is important that a Court hear the litigant and endeavour to ascertain whether, behind the confusion of language and thought evidenced by a litigant's written documents, there lies a possible basis for a claim or defence, as the case may be. If the problem is one of articulation rather than substance, it may be appropriate for the Court to offer some guidance to an unrepresented litigant to enable a real issue, if one exists, to be properly aired. After all, the essential function of a Court system is to provide a means of resolving genuine disputes between citizens, or between a citizen and the State. 19 I consider the appellant has established that there is substance in the ground of appeal that raises the issue of procedural fairness. She did not receive a fair hearing before the Federal Magistrates Court. For this reason I consider leave to appeal should be granted. However, it does not follow that the appeal should succeed. The error which occurred in the Federal Magistrates Court can be cured by the opportunity which the appellant has before this Court to have the merits of the review application considered. Accordingly it is necessary to consider that issue. 20 I have already indicated that I consider that the application and supporting affidavit, as drafted, are non-sensical and disclose no reasonable cause of action. In the form in which they were presented, the Registrar was wholly justified in refusing to accept the application. 21 The right of review under r 2.06 of the FMC Rules entitled the appellant to a hearing de novo on the question whether the application should be accepted. The order of McHugh J was put forward by the appellant as providing a ground which justified the application. The relevance of the order needed to be considered. Further, I think that fairness required that questions be directed to the appellant by the Court to explore whether there might be a real cause of complaint which, if properly formulated, would justify the issue of the application in an amended form. If enquiry led the Court to that view, it would be appropriate to allow the appellant the opportunity to re-cast her documents. 22 The appellant offered no information about the background to the order by McHugh J. By inference, it relates to the same complaints which the appellant sought to agitate in the Federal Magistrates Court, and if that inference is correct, the order of McHugh J lends no support to the appellant's position. On the contrary, the order strongly suggests that the appellant endeavoured to pursue her complaints against the State of South Australia in the High Court, and failed to satisfy the Court that she had any reasonable cause of action against the State of South Australia. It would be an abuse of process for the appellant to endeavour to agitate the same matters in the Federal Magistrates Court. Insofar as I was able to follow the appellant's oral submissions to this Court, I understood her to say that her proposed proceedings in the Federal Magistrates Court did raise the same issues which she had endeavoured to raise in the High Court. 23 As I understood the appellant's submissions, her complaint is that the combination of events which have occurred since her work accident in 1984 now prevent her from obtaining employment or obtaining credit (e.g. a credit card). That combination of events she blames on the State of South Australia because the State made laws, or rather failed to make laws, about health and safety issues so that her employer did not protect her from injury in the first place, and made other laws which took away her right to challenge the termination of her employment by her employer. Later, when she endeavoured to obtain employment with another employer, State laws also interfered so as to prevent her from obtaining work. She complained that the State stopped every action she had, so she felt compelled to sue the State to vindicate her right to work and to obtain credit. The actions of the State about which she complained were wrongful as they interfered with her employment rights which she contended are "federal rights" governed by federal laws and "federal jurisdiction". 24 In my opinion these complaints do not give rise to any recognised cause of action against the State of South Australia. The appellant's complaints appear to rest on dissatisfaction with the exercise of the State's legislative functions. A complaint about the wrong exercise of legislative power by the political branches of government is not a judiciable complaint. The law does not give to a dissatisfied member of the public with such a complaint either a public law or a private law remedy which can be enforced by action in the courts: Re Limbo (1990) 64 ALJR 241 at 243. 25 The provisions of s 144A(5) of the Conciliation and Arbitration Act, if they were in force at the time when the appellant alleges she suffered a wrong, have no relevance to any of the complaints which the appellant identified in the course of her oral submissions. In any event, the provisions impose duties on an employer, and the State of South Australia has never been the appellant's employer. 26 As the appellant's complaints do not give rise to any cause of action against the State of South Australia, the proposed application to the Magistrates Court, however expressed, was foredoomed to fail. To allow the proceedings to issue would constitute an abuse of process: Walton v Gardiner (1993) 177 CLR 378 at 393; Piepkorn v Caroma Industries Ltd (above) at [19]. 27 For these reasons I consider that the application for review brought by the appellant before the Federal Magistrates Court was bound to fail. Accordingly, the appeal against the dismissal of that application should be dismissed. As the respondent does not seek an order as to costs, there will be no costs order. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice von Doussa.