FEDERAL COURT OF AUSTRALIA Ioannou v Hellenic Community Aged Care [2012] FCA 1227 Citation: Ioannou v Hellenic Community Aged Care [2012] FCA 1227 Parties: TOMMY GEORGE IOANNOU v HELLENIC COMMUNITY AGED CARE File number: WAD 71 of 2012 Judge: MCKERRACHER J Date of judgment: 7 November 2012 Catchwords: PRACTICE AND PROCEDURE – application for summary judgment – no reasonable prospect of success – no jurisdiction for the respondent to be joined as a party because it was not a respondent to the original complaint to the Australian Human Rights Commission – abuse of process – applicant seeking similar relief in a State Court PRACTICE AND PROCEDURE – consideration of relevant factors in deciding whether it was in the interests of justice to grant a request for the adjournment of the proceeding – whether a further adjournment would have any utility – whether the applicant had conducted proceeding in a manner consistent with ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth) – repeated attempts to have inappropriate ex parte communication with chambers – whether the respondent would be prejudiced by a further adjournment Legislation: Australian Human Rights Commission Act 1986 (Cth) s 46PO Federal Court of Australia Act 1976 (Cth) ss 37M, 37(N) Federal Court Rules 2011 r 26.01 Cases cited: Australian Associated Motor Insurers Ltd v NRMA Insurance Ltd (2002) 124 FCR 518 John Holland Rail Pty Ltd v Comcar (2011) 276 ALR 221 Date of hearing: Determined on the papers Date of last submissions: 22 October 2012 Place: Perth Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 30 Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondent: BG Grubb Solicitor for the Respondent: Metaxas & Hager IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 71 of 2012 BETWEEN: TOMMY GEORGE IOANNOU Applicant AND: HELLENIC COMMUNITY AGED CARE Respondent JUDGE: MCKERRACHER J DATE OF ORDER: 7 NOVEMBER 2012 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The proceeding is dismissed. 2. The applicant pay the costs of the respondent, to be taxed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011 IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 71 of 2012 BETWEEN: TOMMY GEORGE IOANNOU Applicant AND: HELLENIC COMMUNITY AGED CARE Respondent JUDGE: MCKERRACHER J DATE: 7 NOVEMBER PLACE: PERTH REASONS FOR JUDGMENT INTRODUCTION 1 On 26 July 2012, pursuant to programming orders made from chambers on 12 July 2012, Hellenic Community Aged Care (the respondent) filed an interlocutory application for summary judgment pursuant to rule 26.01 of the Federal Court Rules 2011. Essentially, the respondent claims that it was wrongly joined to this proceeding. Alternatively, it claims that the application filed by Mr Ioannou (the applicant): (a) has no reasonable prospect of success; (b) is vexatious; (c) is an abuse of process; and/or (d) that no reasonable cause of action is disclosed. 2 For the reasons that follow, the respondent's interlocutory application for summary dismissal must succeed. THE APPARENT NATURE OF THE ORIGINATING APPLICATION 3 On 12 March 2012, the applicant, who is self-represented, filed an originating application pursuant to s 46PO of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) naming Hellenic Community Aged Care as the first and only respondent. Section 46PO of the AHRC Act relevantly provides: (1) If: (a) a complaint has been terminated by the President under section 46PE or 46PH; and (b) the President has given a notice to any person under subsection 46PH(2) in relation to the termination; any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Magistrates Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint. (2) The application must be made within 60 days after the date of issue of the notice under subsection 46PH(2), or within such further time as the court concerned allows. (3) The unlawful discrimination alleged in the application: (a) must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or (b) must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint … (emphasis added) 4 The applicant's claim is confused, to say the least. Citing the Disability Discrimination Act 1992 (Cth) as a whole in his originating application, the applicant seeks 'compensation for severe harassment, stress, persecution and maliciously [sic] maifeasance [sic]' because he claims he is barred from visiting his mother at the Hellenic Community Aged Care Home. The applicant claims that this occurred after he complained about the level of care that she was receiving. 5 The applicant seeks orders that will allow him to visit his mother freely, a lifting of Violence Restraining Orders issued by the Joondalup Magistrates Court against him, and compensation. 6 Annexure A to the applicant's affidavit accompanying the originating application, sworn and filed on 12 March 2012, sets out a Notice of Termination purportedly issued by the Delegate of the President of the Australian Human Rights Commission (AHRC) on 28 February 2012 (Purported Termination Notice). Pursuant to s 46PH(1)(c) of the AHRC Act, the Delegate was satisfied that the complaint lacked substance and accordingly terminated the complaint. In the Purported Termination Notice, the relevant complaint number is 2029377FC, the complainant is named as 'Tommy George Ioannou', and the two named respondents are the 'Commonwealth of Australia (Department of Human Services – Centrelink)' and 'Hellenic Community Aged Care'. THE APPLICANT'S ADJOURNMENT APPLICATION 7 Before turning to the respondent's summary judgment application, it is first necessary to give consideration to a preliminary matter. That is a request by the applicant for a third adjournment of this proceeding on medical grounds. The applicant successfully obtained two adjournments of directions hearings on 8 May 2012 and 30 May 2012, for two weeks and six weeks respectively, on medical grounds. On 11 July 2012, the applicant wrote to the Court requesting a further adjournment of the proceeding until December 2012. This request was supported by a medical certificate issued by his general practitioner dated 22 June 2012, certifying that he was 'unfit for work and to attend court hearings until 1 December 2012 inclusive'. On 11 July 2012, my associate wrote to the applicant's general practitioner requesting him to verify the authenticity of this medical certificate. On 12 July 2012, the applicant's general practitioner confirmed that the medical certificate issued by him was authentic. 8 However, for the reasons that follow, it is not in the interests of justice to grant the applicant a further adjournment until December or to otherwise amend the programming orders made on 12 July 2012. On that day I made orders from chambers programming the respondent's foreshadowed summary judgment application for determination on the papers (Orders). Those Orders provided as follows: 1. By Thursday 26 July 2012 the respondent file and serve any foreshadowed application for summary judgment along with supporting affidavits and submissions. 2. Within 14 days of service the applicant file and serve any affidavits and submissions in response. 3. Any application for summary judgment be determined on the papers. 4. The directions hearing listed for Tuesday 17 July 2012 at 9.45am be vacated. 9 On 23 July 2012, the Court wrote to the respondent, copying the applicant, to ascertain whether it opposed the applicant's request for a further adjournment. 10 On 25 July, the respondent's solicitor wrote to the Court and the applicant stating that it would comply with the Orders but did not consent to the applicant's adjournment request or to any other variation to the Orders for the following reasons: The medical certificate issued by the applicant's general practitioner states that the applicant is 'unfit for work and to attend court hearings' until 1 December 2012. The Orders 'do not require the applicant to either attend Court, or perform any physical any reasonable task that could reasonably described as work'. Subsequent to the medical certificate: the applicant continues to demonstrate that he is abundantly capable of preparing and drafting lengthy affidavits and annexures in these proceedings. On 11 July 2012 this office was served by post with an affidavit from the applicant, sworn 9 July 2012, that is no less than 57 pages in length (inclusive of annexures). The respondent has already been prejudiced by having to engage solicitors to participate in this application, in circumstances where it alleges it should never have been joined as a party. Any response by the applicant to the respondent's proposed application for summary judgment cannot reasonably be foreshadowed as being complex. The factual issue in contest is simply whether the respondent was a party to AHRC complaint 2029377FC, which therefore entitled the applicant to a subsequent right of review by this Court under s 46PO(1) of the AHRC Act. The applicant has not demonstrated that he has insufficient funds to engage solicitors to act on his behalf or to otherwise assist him in preparing any responsive submissions and/or affidavits to comply with the Orders (should he be personally unable to do so, which is denied). The applicant was previously represented by solicitors in other court proceedings and, failing any evidence to the contrary, the available inference is open from that fact is that he has continued access to such funds, if required. 11 On 25 July 2012, my associate wrote the following letter to the applicant, copying in the respondent: I refer to the following correspondence in the above matter: • Your written request for a further adjournment of this matter until December 2012 on medical grounds ... • The respondent's responsive letter to chambers dated 25 July 2012, a copy of which was sent to you. His Honour has requested that you provide chambers with a written response in light of the respondent's letter within 10 days outlining why this matter should not proceed on the papers as per Orders made on 12 July 2012. 12 On 1 August 2012, the applicant sent a nine page facsimile to the chambers. It included the following documents: A copy of the medical certificate issued by his general practitioner on 22 June 2012. A poor quality photocopy of a medical report from the Perth Radiological Clinic which appears to be altered with a handwritten annotation. In the first page of the report there is a sentence that reads: 'No evidence for anterior abdominal wall or groin hernia'. However, a handwritten 't' appears between the words 'No' and 'evidence' so the sentence reads: 'Notevidence (sic) for anterior abdominal wall or groin hernia'. A handwritten letter from the applicant addressed directly to me outlining the following matters: that his mother is ill; that the Violence Restraining Orders taken out by nursing home staff where his mother resides are still in place; that the 'vultures are waiting for [this] Federal Court matter to finish and then they will sell my mum and my home'; that his former solicitor 'swindled' him of his 'lifes [sic] savings'; and that he was seeking 'mercy' and 'help' from this Court. A photocopy of a handwritten District Court Appeal Notice dated 23 July 2012. A photocopy of what appears to be a letter from the District Court Principal Registrar to the applicant outlining the following matters: ○ requesting the applicant not to ask Court staff for legal advice; ○ stating that his abusive, threatening behaviour towards Court staff is unacceptable; ○ that his calls will only be taken by certain Court staff; and ○ that his initial hearing date is listed for Monday 3 December 2012 in accordance with the applicant's medical certificate. A handwritten letter from the applicant, addressed to my associate, which includes the following allegations: that the respondent's solicitor has 'decided to go after [him] day after day using smear slanderous tactics, innuendoes [sic], rewriting of documents, lying, making false statements'; that various officials of Centrelink and the AHRC are corrupt and have been bribed by the respondent's solicitor; that Centrelink has cancelled his pension to deny him 'justice in the Federal Court' and also denied him 'life supporting drugs'; that he is very ill, in great pain and requires an operation. 13 On 2 August 2012, the applicant sent a further 10 page facsimile to chambers. It contained the following documents: The same handwritten letter addressed to me as appeared in the 1 August facsimile. The same handwritten letter addressed to my associate as appeared in the 1 August facsimile. A photocopy of a letter purportedly dated 11 April 2012 addressed to the applicant from his former solicitor, with misaligned, mismatched text that appears to be copied and pasted in to the body of the letter. The same photocopy of the District Court Appeal Notice as appeared in the 1 August facsimile. The same photocopy of the letter from the District Court Principal Registrar. A photocopy of a letter purportedly sent by the Director of the Complaints Handling Section of the AHRC addressed to the applicant, which again appears to have uneven text copied and pasted in to the body of the letter. Essentially this letter appears to respond to the applicant's complaint about the AHRC's numerical referencing system of complaints, which the applicant alleges is a 'conspiracy' against him. It also asks the applicant to stop making repeat calls to various sections of the AHRC because it is not an efficient way for the AHRC to provide service to him. A photocopy of the Purported Termination Notice which appears in the applicant's first affidavit, in which Hellenic Community Aged Care appears to be unevenly copied and pasted in as a second respondent to the complaint. A photocopy of 'final warning' notice on Hellenic Community Aged Care letterhead addressed to the applicant, which appears undated and again appears to have sections of text copied and pasted in to the body of the letter. The sentences that are copied and pasted in to the letter appear to be incomplete and nonsensical. For example, the first sentence in the body of the letter reads: 'Community Aged Care staff on our property, I will serve on you a "Removal of person from premises notice".' The salutation also reads: 'Deer [sic] Mr Ioannou'. 14 Chambers received similar facsimiles from the applicant directly (and out of time) on 13 August 2012 (8 pages), 18 August 2012 (7 pages), 3 October 2012 (10 pages), 19 October 2012 (5 pages) and 22 October 2012 (7 pages). It is unnecessary to reiterate their contents. CONSIDERATION OF THE APPLICANT'S ADJOURNMENT APPLICATION 15 The fundamental deficiencies in the applicant's originating application cannot be remedied with an extension of time. At the first directions hearing on 11 April 2012, I ordered the applicant to file an amended originating application that set out the grounds of his claim and the particulars of his claim for damages by no later than 9 May 2012. No amended application was filed. 16 On 12 June 2012, the respondent filed an affidavit sworn by its solicitor in support of its application for summary judgment. Annexed to the affidavit is correspondence between the solicitor and the AHRC showing that the respondent in this proceeding was never a respondent to complaint 2029377FC and that the only respondent to the original complaint was the 'Commonwealth of Australia (Department of Human Service – Centrelink)'. Also annexed to the solicitor's affidavit is a letter addressed to the Western Australian District Registrar of the Federal Court from the President of the AHRC annexing the original termination notice for complaint 2029377FC which again shows that Hellenic Community Aged Care was never a respondent to the original complaint. Fatal and incurable error 17 As the respondent correctly submits, s 46PO(1)(b) of the AHRC Act provides that an application may only be made to this Court by an affected person 'alleging unlawful discrimination by one or more of the respondents to the terminated complaint'. It is quite clear that that Hellenic Community Aged Care was not a respondent to the complaint to the AHRC and therefore there is no jurisdiction for it to be joined as a respondent to this proceeding. 18 This alone is sufficient reason for not granting a further adjournment and dismissing the proceeding summarily. However, it is necessary to comment on a few further matters because the granting of an extended adjournment is discretionary. Applicant's conduct 19 The nature of the applicant's conduct throughout the course of this proceeding is one factor weighing heavily against granting a further adjournment. Section 37(M) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) relevantly provides that the 'overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes (a) according to law and (b) as quickly, inexpensively and efficiently as possible'. Section 37(N) of the FCA Act provides that the 'parties to a civil proceeding before the Court must conduct the proceeding … in a way that is consistent with the overarching purpose'. 20 Even taking into account the fact that the applicant is self-represented, his conduct has been directly at odds with these provisions and falls well within the realm of vexatious conduct. On 1 June 2012, my associate wrote to the applicant reminding him that all of his correspondence with the Court should be copied to the respondent's solicitor and that it was not appropriate for him to telephone chambers to discuss substantive issues. He was also informed orally by my chambers numerous times, for example, on 1 May 2012 and 3 May 2012, that all of his correspondence with the Court should be in writing and copied to the respondent's solicitor. Notwithstanding these requests, the applicant has attempted to telephone my associate directly on over thirty (30) documented occasions and left numerous voicemail messages making scandalous allegations about the respondents, the respondent's solicitors, registry staff and various government officials as well as threatening to report my associate to the Australian Federal Police. Not only does this conduct serve to undermine the impartiality of the Court (John Holland Rail Pty Ltd v Comcare (2011) 276 ALR 221) but it also stretches the Court's limited resources when it is already under considerable pressure to resolve disputes of a seriously arguable nature. 21 The applicant's facsimiles also contain what appear to be inauthentic copies of correspondence previously sent to the applicant by this Court. For example, in the facsimile sent by the applicant on 23 July 2012, there is a copy of a letter purportedly sent by a Registrar of this Court on 18 July 2012, which explains to the applicant why particular affidavits he attempted to file with the registry were not accepted for filing and returned to him. My associate's email signature appears to be copied and pasted at the bottom of the copy of the letter when it does not appear in the original letter. The crucial sentence 'Accordingly the affidavits have not been accepted for filing and I return them to you' also appears to be missing from the copy in the facsimile, when compared to the original letter on the Court correspondence file. 22 Another example of altered correspondence from the Court appears in the facsimile sent by the applicant (out of time) on 13 August 2012. In this facsimile appears a letter purportedly addressed to the applicant from my associate, dated 26 July 2012, and copied to the respondent's solicitors. The text again appears to be misaligned, with various sentences in the body of the letter copied and pasted from a series of letters that my chambers has sent the applicant this year. For example, the sentence 'Please find attached additional information which relates to communications with the chambers of the Federal Court' comes from the letter sent from chambers to the applicant and dated 1 June 2012. The sentence 'Your written request for a further adjournment of this matter until December 2012' comes from a letter sent to the applicant dated 25 July 2012. The phrases 'I refer to the above matter', 'his Honour has made the following orders from chambers', and 'Any application for judgment' all appear in a letter sent to the applicant on 12 July 2012. 23 The numerous odd looking photocopies of official documents with misaligned, mismatched text, replete with handwritten annotations and incomplete sentences, do not inspire confidence of authenticity and cast serious doubts, amongst other things, on the applicant's bona fides. Abuse of Process 24 The applicant's voluminous correspondence also evinces an intention to seek the same relief from different courts, which constitutes an abuse of process (Australian Associated Motor Insurers Ltd v NRMA Insurance Ltd (2002) 124 FCR 518). 25 When the applicant included a photocopy of a letter addressed to him by the Principal Registrar of the District Court stating that the first return date of his appeal was not until December due to the existence of the medical certificate, he was presumably implying that this Court should also acquiesce to his adjournment application. However, when one considers the applicant's District Court Appeal Notice dated 23 July 2012 contained in his correspondence of 1 August 2012, it appears that he is in effect attempting to pursue similar, if not identical, relief in this Court. By his District Court Appeal Notice, the applicant appeals from a decision of the Magistrates Court of Western Australia of 28 March 2012 in relation to Violence Restraining Orders obtained by employees of Hellenic Community Aged Care against him. By his originating application filed in this Court, the applicant seeks inter alia a lifting of those Violence Restraining Orders which he claims are 'maliciously maifeasance [sic]'. This jurisdictionally misconceived attempt to seek the same relief from different courts is a further reason why this proceeding should be summarily dismissed. Prejudice to the respondent 26 Finally, and perhaps most importantly, the prejudice to the respondent is a factor that weighs heavily against granting a further adjournment until December. The respondent should not have this litigation hanging over its head when it was wrongly joined as a respondent. It is entitled to a timely disposition of the proceeding. I accept the respondent's submission that it has already been prejudiced by having to engage solicitors to participate in this litigation when it was wrongly joined as a party. 27 I also accept the respondent's submission that while the medical certificate issued by the applicant's general practitioner states that the applicant is 'unfit for work and to attend court hearings until 1 December 2012', the Orders I made on 12 July 2012, programming the respondent's summary judgment application for determination on the papers, do not require the applicant to attend Court. I disagree with the respondent to the extent that I think that drafting responsive submissions and affidavits can be reasonably defined as 'work'. Nevertheless, I agree with the respondent that by the applicant's conduct subsequent to providing the medical certificate has demonstrated that he is abundantly capable of reading the respondent's brief materials filed in support of its summary judgment application and preparing responsive affidavits and submissions. 28 Even if the reference in the medical certificate as to the applicant's unfitness to 'attend court' is understood to relate to his capacity to properly and effectively prosecute proceedings, an interpretation I can well appreciate, further delay will not solve the problem. There is and always has been, from the moment of filing this proceeding, a fatal and incurable flaw in that there was no power to join the respondent to the proceeding. No amount of timing can overcome that threshold deficiency. CONCLUSION 29 Notwithstanding the authenticity of the applicant's medical certificate which covers the period 22 June 2012 until 1 December 2012, for the reasons canvassed above it is not in the interests of justice to grant the applicant a third adjournment of this proceeding until December or to otherwise amend the programming orders I made on 12 July 2012. 30 I accept the respondent's submission that it was wrongly joined as a respondent to this proceeding; its summary judgment application must succeed with costs. Accordingly the following orders are made: 1. The proceeding is dismissed. 2. The applicant pay the costs of the respondent, to be taxed if not agreed. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher. Associate: Dated: 7 November 2012