FEDERAL COURT OF AUSTRALIA Thomas v University of Melbourne (No 3) [2019] FCA 92 File numbers: VID738/2018; VID950/2018; VID1222/2018; VID1407/2018 Judge: WHEELAHAN J Date of judgment: 8 February 2019 Catchwords: PRACTICE AND PROCEDURE – applicant self-represented – multiple interlocutory applications – applicant's presentation in Court aggressive and confronting – applicant objected to the court's jurisdiction – applicant refused to participate in proceedings – applicant removed from Court building – no further hearings to be conducted – decisions to be made on the papers. Legislation: Australian Human Rights Commission Act 1986 (Cth) s 46PP(b), s 46PO(3A)(a) Fair Work Act 2009 Judiciary Act 1903 (Cth), s 40 Cases cited: Thomas v University of Melbourne [2018] FCA 1978 Thomas v University of Melbourne (No 2) [2018] FCA 2024 Date of hearing: 1 February 2019 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 26 VID738/2018 Counsel for the Applicant: The applicant appeared in person Counsel for the First, Third, Sixth, Eighth, Ninth, Twelfth, Sixteenth, and Seventeenth Mr J Tracey Respondents: Solicitor for the First, Third, Sixth, Eighth, Ninth, Twelfth, Sixteenth, and Seventeenth Respondents: Minter Ellison Counsel for the Second Respondent: Mr G Edgerton Solicitor for the Second Respondent: Australian Human Rights Commission Solicitor for the Thirteenth Respondent: Moray and Agnew Lawyers Counsel for the Fourteenth Respondent: Mr B Mueller Solicitor for the Fourteenth Respondent: Bartlett Workplace Lawyers VID950/2018 Counsel for the Applicant: The applicant appeared in person Counsel for the Mr J Tracey Respondent: Solicitor for the Respondent: Minter Ellison VID1222/2018 Counsel for the Applicant: The applicant appeared in person Counsel for the Mr G Edgerton Respondents: Solicitor for the Respondents: Australian Human Rights Commission Counsel for the Intervener: Mr N Rogers Solicitors for the Intervener: Australian Government Solicitor VID1407/2018 Counsel for the Applicant: The applicant appeared in person Counsel for the First, Third, Sixth, Eighth, Ninth, Twelfth, Sixteenth, and Seventeenth Mr J Tracey Respondents: Solicitor for the First, Third, Sixth, Eighth, Ninth, Twelfth, Sixteenth, and Seventeenth Respondents: Minter Ellison Counsel for the Second Respondent: Mr G Edgerton Solicitor for the Second Respondent: Australian Human Rights Commission Counsel for the Fourteenth Respondent: Mr B Mueller Solicitor for the Fourteenth Respondent: Bartlett Workplace Lawyers ORDERS VID738/2018 BETWEEN: DARRON THOMAS Applicant AND: THE UNIVERSITY OF MELBOURNE First Respondent AUSTRALIAN HUMAN RIGHTS COMMISSION Second Respondent SPENCER MARTIN (and others named in the Schedule) Third Respondent JUDGE: wheelahan j DATE OF ORDER: 8 February 2019 THE COURT ORDERS THAT: 1. The first respondent's interlocutory application filed 15 November 2018 is adjourned indefinitely until further order. 2. The applicant's interlocutory applications filed 28 November 2018, 29 November 2018, 11 December 2018, 12 December 2018, 21 December 2018 and the applicant's applications for leave to issue a subpoena are adjourned indefinitely until further order. 3. The costs of and incidental to the hearing on 1 February 2019 are reserved. 4. By 4.00pm on 22 February 2019 the respondents file and serve electronically any submissions they wish to make concerning the costs of and incidental to the hearing on 1 February 2019. 5. By 4.00pm on 8 March 2019 the applicant file and serve electronically any submissions he wishes to make addressing – (a) why this proceeding should not be dismissed having regard to the applicant's statements in Court on 1 February 2019 concerning the jurisdiction of the Court, and his participation in the proceeding; (b) the further conduct of the proceeding; and (c) any application for costs made against him. 6. By 4.00pm on 22 March 2019 the respondents file and serve electronically any submissions in response to the applicant's submissions. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. ORDERS VID950/2018 BETWEEN: DARRON THOMAS Applicant AND: THE UNIVERSITY OF MELBOURNE Respondent JUDGE: wheelahan j DATE OF ORDER: 8 February 2019 THE COURT ORDERS THAT: 1. The case management hearing listed for 29 March 2019 is vacated. 2. The respondent's interlocutory application filed 20 November 2018 is adjourned indefinitely until further order. 3. The applicant's interlocutory applications filed 13 November 2018 and 21 December 2018 are adjourned indefinitely until further order. 4. The costs of and incidental to the hearing on 1 February 2019 are reserved. 5. By 4.00pm on 22 February 2019 the respondent file and serve electronically any submissions it wishes to make concerning the costs of and incidental to the hearing on 1 February 2019. 6. By 4.00pm on 8 March 2019 the applicant file and serve electronically any submissions he wishes to make addressing – (a) why this proceeding should not be dismissed having regard to the applicant's statements in Court on 1 February 2019 concerning the jurisdiction of the Court, and his participation in the proceeding; (b) the further conduct of the proceeding; and (c) any application for costs made against him. 7. By 4.00pm on 22 March 2019 the respondent file and serve electronically any submissions in response to the applicant's submissions. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. ORDERS VID1222/2018 BETWEEN: DARRON THOMAS Applicant AND: AUSTRALIAN HUMAN RIGHTS COMMISSION (and others named in the Schedule) First Respondent JUDGE: wheelahan j DATE OF ORDER: 8 February 2019 THE COURT ORDERS THAT: 1. The costs of and incidental to the hearing on 1 February 2019 are reserved. 2. By 4.00pm on 22 February 2019 the respondents and the intervener file and serve electronically any submissions they wish to make concerning the costs of and incidental to the hearing on 1 February 2019. 3. By 4.00pm on 8 March 2019 the applicant file and serve electronically any submissions he wishes to make addressing – (a) why this proceeding should not be dismissed having regard to the applicant's statements in Court on 1 February 2019 concerning the jurisdiction of the Court, and his participation in the proceeding; (b) the further conduct of the proceeding; and (c) any application for costs made against him. 4. By 4.00pm on 22 March 2019 the respondents and intervener file and serve electronically any submissions in response to the applicant's submissions. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. ORDERS VID1407/2018 BETWEEN: DARRON THOMAS Applicant AND: THE UNIVERSITY OF MELBOURNE (and others named in the Schedule) First Respondent JUDGE: wheelahan j DATE OF ORDER: 8 February 2019 THE COURT ORDERS THAT: 1. The applicant's interlocutory application filed 21 December 2018 is adjourned indefinitely until further order. 2. The costs of and incidental to the hearing on 1 February 2019 are reserved. 3. By 4.00pm on 22 February 2019 the respondents file and serve electronically any submissions they wish to make concerning the costs of and incidental to the hearing on 1 February 2019. 4. By 4.00pm on 8 March 2019 the applicant file and serve electronically any submissions he wishes to make addressing – (a) why this proceeding should not be dismissed having regard to the applicant's statements in Court on 1 February 2019 concerning the jurisdiction of the Court, and his participation in the proceeding; (b) the further conduct of the proceeding; and (c) any application for costs made against him. 5. By 4.00pm on 22 March 2019 the respondents file and serve electronically any submissions in response to the applicant's submissions. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT WHEELAHAN J: Introduction 1 These reasons relate to the course that I propose to take following Mr Thomas's appearance before the Court on Friday 1 February 2019. At that hearing Mr Thomas was aggressively offensive and abusive towards the Court and towards legal practitioners acting for other parties. In consequence, I directed the Court's security staff to remove Mr Thomas from the Court building. 2 For reasons that I shall explain, for the time being I shall not conduct any hearings in court in relation to the interlocutory applications that have been filed in the proceedings that have been commenced by Mr Thomas. Instead, I propose to make directions from time to time for the filing of written submissions, and I shall determine applications in Chambers on the papers. Background 3 On 26 August 2017, Mr Thomas made a complaint of discrimination to the Australian Human Rights Commission. The subject of the complaint was allegations of racial discrimination while Mr Thomas was pursuing PhD studies at the University of Melbourne. The complaint was made against the University, and staff of the University. 4 Mr Thomas has subsequently commenced four proceedings in this Court. 5 On 15 June 2018, Mr Thomas commenced proceeding VID 738 of 2018 by an originating application titled "Originating Application under the Australian Human Rights Commission Act 1986" naming the University of Melbourne, the Australian Human Rights Commission, and 15 others, as respondents. By the originating application, Mr Thomas sought a range of orders under s 46PP(b) [sic] of the Australian Human Rights Commission Act 1986 (Cth), including orders that are described as "an interim injunction/injunction on an ex parte basis". 6 On 2 August 2018, Mr Thomas commenced proceeding VID 950 of 2018 by an originating application titled "Originating application under the Fair Work Act 2009 alleging discrimination". By that proceeding Mr Thomas alleged (inter alia) contraventions of the general protections provisions of the Fair Work Act 2009 and sought orders in the form of the injunctions sought in proceeding VID 738 of 2018. Currently, only the University is named as respondent to the proceeding. In the originating application, Mr Thomas makes reference to a complaint that he has before the Fair Work Commission in FWC 3036 of 2018. 7 On 6 September 2018, a delegate of the President of the Commission terminated Mr Thomas's complaint under s 46PH(1B)(a) of the Australian Human Rights Commission Act on the ground that the complaint was lacking in substance. Subsequently, on 24 September 2018 Mr Thomas commenced proceeding VID 1222 of 2018 by which he sought judicial review of the Commission's termination of his complaint, and a range of orders including that the decision made by the Commission to terminate his complaint be quashed. The respondents to that proceeding are the Commission, and two of its officers. On 1 February 2019, I gave leave to the Attorney-General for the Commonwealth to intervene in that proceeding for the purposes of acting as contradictor, and gave leave to the Commission to file a submitting appearance. 8 On 1 November 2018, Mr Thomas commenced proceeding VID 1407 of 2018. In that proceeding, Mr Thomas alleged that he was subjected to unlawful discrimination by the University of Melbourne, and sought interlocutory and final injunctive relief and other orders, including orders of a mandatory nature. Mr Thomas requires leave to bring that proceeding under s 46PO(3A)(a) of the Australian Human Rights Commission Act. 9 In each of the four proceedings, Mr Thomas has filed a number of interlocutory applications which are identified in the schedule to these reasons. Those applications have included an application that I recuse myself, and that the certain lawyers for the respondents be precluded from acting in the proceedings. I heard and determined those applications in December 2018 and dismissed them: Thomas v University of Melbourne [2018] FCA 1978; Thomas v University of Melbourne (No 2) [2018] FCA 2024. The interlocutory applications that Mr Thomas has made also include: (a) that the proceedings be stayed pending removal of the proceedings to the High Court; (b) orders that the proceedings be removed to the High Court (cf, Judiciary Act 1903 (Cth), s 40); (c) that "fraud charges" be heard and determined before any further steps are taken in the proceedings; and (d) that applications for leave to appeal interlocutory orders that I made at a case management hearing on 30 October 2018 be heard before any other steps are taken in the proceedings. 10 In all, there are more than 70 orders that Mr Thomas has sought in the interlocutory applications that he has filed and which are extant. In addition, Mr Thomas has lodged 32 requests for leave to issue a subpoena, including for leave to issue subpoenas directed at legal practitioners for the parties to require them to give evidence and to produce documents. 11 In the week prior to the hearing, Mr Thomas sought to file five further interlocutory applications which were rejected by the Registrar under r 2.26 of the Federal Court Rules 2011 (Cth) on the grounds that they amounted to an abuse of process. One of the interlocutory applications that Mr Thomas sought to file named 49 respondents, including many who are not parties to any of his proceedings in this Court. 12 The University has filed an application for a stay of proceeding VID 738 of 2018 on the ground that upon the Commission's termination of Mr Thomas's complaint, the Court lacks jurisdiction to make orders under s 46PP of the Australian Human Rights Commission Act. The University has also sought summary judgment in proceeding VID 950 of 2018 on the ground that Mr Thomas was not an employee of the University. Mr Thomas's conduct in Court on 1 February 2018 13 The Court listed a number of the extant interlocutory applications for 1 February 2018, namely – (a) the application by the Attorney-General for the Commonwealth to intervene in proceeding VID 1222 of 2018; (b) the application by the University for a stay of VID 738 of 2018; and (c) the interlocutory applications made by Mr Thomas. 14 At the commencement of the hearing on 1 February 2018, Mr Thomas stood at the door of the Court, with the door ajar. I did not have an opportunity to take any appearances before Mr Thomas commenced to speak to the Court in a loud voice commencing as follows – I refuse to participate on the ground that there are menaces with unwarranted demands. … 15 I understand the reference to "menaces" to be a reference to Court security staff who were present. Mr Thomas continued, and made a number of assertions, including that the Court lacked jurisdiction. Mr Thomas made vitriolic claims directed to the Court, and to legal representatives of the respondents who were present in Court. Indicative of Mr Thomas's vitriol is the following passage taken from the transcript – Article 40 of the International Covenant on Civil and Political Rights demands that I stand before an independent, competent and impartial court. From what I have seen to date, there is not such a court, and, as such, I refuse to participate in any proceedings, especially because all one, two, three, except Mr Rogers here so far, have participated in fraud. They are not able to stand as independent advocates. Before we proceed any further, I would like to know if these people are representing themselves as self-represented litigants in the acts of fraud that they have participated in, or are they claiming that they are somehow qualified legal representatives of some respondents? 16 The level of aggression in Mr Thomas's presentation, which was already high, then escalated. Mr Thomas stated – Your behaviour is unreasonable to the standard of what is valid. Your behaviour is unreasonable ..... me. Charge me with contempt of court. Bring the cuffs. 17 I then stated – Mr Thomas, I will give you one opportunity to calm down. 18 Mr Thomas responded – No. I don't need to calm down. You do not have jurisdiction. What statute gives you jurisdiction to rule on matters where there is a suit against the Commonwealth of Australia? 19 I directed that Mr Thomas be removed from the Court building. After I made that direction Mr Thomas stated (inter alia) – Let me take my stuff. You have no right to proceed. None. Get out. You're a criminal. I will not stand in front of criminals. [I omit here an extremely concerning reference] You're not going to threaten me anymore. You're not going to breach my rights anymore. You have no authority to make any decision. You're a criminal. Now make your criminal decisions in my absence. You do not have authority to proceed. They do not have authority to represent here. You are all criminals. Criminals protecting criminals. My subpoenas for the lawyers to appear, because there is evidence that they committed fraud. 20 After Mr Thomas was removed, I made orders giving leave to the Attorney-General for the Commonwealth to intervene in proceeding VID 1222 of 2018, and for the Commission to file a submitting appearance. I indicated that I proposed to adjourn all other interlocutory applications to a date to be fixed. I determined that I would not hear an application for costs at the hearing having regard to the fact that Mr Thomas's absence was as a result of my direction that he be removed from the Court. Consideration 21 Mr Thomas's conduct on 1 February 2019 is capable of being characterised as a contempt in the face of the Court. However, that is only part of my concern. The Court has retained a copy of the audio recording of the hearing on 1 February 2019, which I have reviewed. The transcript does not convey the full intensity and ferocity with which Mr Thomas spoke. Legal practitioners, court staff, parties, and other users of the Court should not have to contend with Mr Thomas's aggressive, confronting behaviour. I consider that Mr Thomas's behaviour afforded grounds for others present in and around the courtroom to feel unsettled, and to be apprehensive. This was not an acceptable state of affairs. 22 I will not allow Mr Thomas the opportunity to attempt to intimidate the legal practitioners, the parties, court staff, or anybody else within the Court, and I will not allow hearings in the Court to be disrupted by Mr Thomas's behaviour. Accordingly, unless and until the Court determines otherwise, I will not conduct oral hearings, and all interlocutory applications will now be determined on the papers in Chambers as authorised by s 17(2) of the Federal Court of Australia Act 1976 (Cth), and by r 1.36 of the Federal Court Rules. Further directions 23 I will make directions for the filing and service by email of written submissions by the parties in relation to the parties' costs of the hearing on 1 February 2019, and any other orders relating to costs. 24 All interlocutory applications that were before the Court on 1 February 2018 will be adjourned indefinitely until further order. 25 I take Mr Thomas's statements in Court on 1 February 2019 that he does not wish to participate in the proceedings, and that he objects to the jurisdiction of the Court, as indicating that he does not wish to move on any of the interlocutory applications that he has filed with the Court and that he otherwise does not wish to pursue the proceedings. I will make directions that Mr Thomas may make submissions in writing as to why the four proceedings should not be dismissed and for the respondents and the Attorney-General as intervener in proceeding VID 1222 of 2018 to respond. 26 I will also make directions that the parties, and the Attorney-General as intervener in proceeding VID 1222 of 2018, make submissions in writing as to the further conduct of these proceedings. I certify that the preceding twenty-seven (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wheelahan. Associate: Dated: 08 February 2019 SCHEDULE OF THE APPLICANT'S INTERLOCUTORY APPLICATIONS VID738/2018 28 November 2018 The applicant filed an interlocutory application seeking an order for the Federal Court of Australia to accept an attached pleading to meet conditions of Federal Court Rule 16.08 as articulated in pleadings. 29 November 2018 The applicant filed an interlocutory application seeking, among other things, an order that proceedings VID1474/2018 and VID1475/2018 be heard and determined before any further steps are taken in any of proceedings VID738/2018; VID950/2018; VID1222/2018 and VID1407/2018, an order that proceedings VID738/2018; VID950/2018; VID1222/2018 and VID1407/2018 be stayed or adjourned pending the hearing and determination of the constitutional matters, with proper notice to the Attorneys-General, or removal of all proceedings to the High Court, and an order that fraud charges to be heard and determined before any further steps in any of the other proceedings. 11 December 2018 The applicant filed a further interlocutory application seeking 23 separate orders. Among these, the applicant sought injunctions and interlocutory orders under s.46PO(6) or s.46PP(1) of the Australian Human Rights Commission Act, and pursuant to the completion of proceedings VID738/2018 and VID1222/2018, and those at the Australian Human Rights Commission, an Apology and Compensation. 12 December 2018 The applicant filed a further interlocutory application, seeking 36 separate orders, including orders that the proceeding be removed to the High Court. 21 December 2018 The applicant filed an interlocutory application seeking an order that the Court accept a notice to admit. January 2019 The applicant filed 33 applications for leave to issue subpoenas. VID950/2018 13 November 2018 The applicant filed an interlocutory application seeking 11 separate orders, including leave to amend his originating application. 21 December 2018 The applicant filed an interlocutory application seeking an order that Court accept a notice to admit. VID1222/2018 12 October 2018 The applicant filed an interlocutory application seeking seven separate orders. These included seeking removal of the registrars who had processed the applicant's applications. This application was heard and dismissed on 3 December 2018. VID1407/2018 19 November 2018 The applicant filed an interlocutory application, seeking orders for the disqualification of all legal representatives acting for all respondents, and an order for the Hon Justice Wheelahan to recuse himself from acting in the applicant's matters. This application was dismissed and the Court published reasons: Thomas v University of Melbourne [2018] FCA 1978; Thomas v University of Melbourne (No 2) [2018] FCA 2024. 21 December 2018 The applicant filed an interlocutory application seeking an order that the Court accept a notice to admit. SCHEDULES OF PARTIES VID 738 of 2018 First Respondent: UNIVERSITY OF MELBOURNE Second Respondent: AUSTRALIAN HUMAN RIGHTS COMMISSION Third Respondent: SPENCER MARTIN Fourth Respondent: LYNDON MOORE Fifth Respondent: STEPHEN BROWN Sixth Respondent: GARY TWITE Seventh Respondent: VINCENT GREGOIRE Eighth Respondent: PENELOPE PEPPERELL Ninth Respondent: LYDIA MCDONNELL Tenth Respondent: OFFICE OF THE PROVOST OF THE UNIVERSITY OF MELBOURNE Eleventh Respondent: SEAN HOGAN Twelfth Respondent: CRAIG BIRD Thirteenth Respondent: ANGUS MCKENZIE Fourteenth Respondent: GLEN BARTLETT Fifteenth Respondent: MICHAEL CASWELL Sixteenth Respondent: JACKIE SARKIES Seventeenth Respondent: ANISH NAGPAL VID 950 of 2018 Respondent: UNIVERSITY OF MELBOURNE VID1222/2018 Intervener: COMMONWEALTH ATTORNEY-GENERAL Interested Person: THOMAS STEWART First Respondent: AUSTRALIAN HUMAN RIGHTS COMMISSION Second Respondent: JODIE BALL Third Respondent: RACHEL HOLT VID1407/2018 First Respondent: UNIVERSITY OF MELBOURNE Second Respondent: AUSTRALIAN HUMAN RIGHTS COMMISSION Third Respondent: SPENCER MARTIN Fourth Respondent: LYNDON MOORE Fifth Respondent: STEPHEN BROWN Sixth Respondent: GARY TWITE Seventh Respondent: VINCENT GREGOIRE Eighth Respondent: PENELOPE PEPPERELL Ninth Respondent: LYDIA MCDONNELL Tenth Respondent: OFFICE OF THE PROVOST UNIVERSITY OF MELBOURNE Eleventh Respondent: SEAN HOGAN Twelfth Respondent: CRAIG BIRD Thirteenth Respondent: ANGUS MACKENZIE Fourteenth Respondent: GLEN BARTLETT Fifteenth Respondent: MICHAEL CASWELL Sixteenth Respondent: JACKIE SARKIES Seventeenth Respondent: ANISH NAGPAL