FEDERAL COURT OF AUSTRALIA Przybylowski v Australian Human Rights Commission [2020] FCA 198 File number: NSD 994 of 2019 Judge: FLICK J Date of judgment: 27 February 2020 Catchwords: PRACTICE AND PROCEDURE – application for summary judgment – claims made not justiciable – absence of any reasonable prospects of applicant obtaining relief – no foundation for any argument as to denial of procedural fairness INTERNATIONAL PROCEEDINGS – obligation to pursue proceedings before International Court of Justice not justiciable Legislation: Federal Court of Australia Act 1976 (Cth) s 31A Judiciary Act 1903 (Cth) s 78B Federal Court Rules 2011 (Cth) r 26.01 Statute of the International Court of Justice Art 34 Cases cited: Kaur v Sikh Gurdwara Perth (Inc) [2017] WASC 270 Leica Geosystems Pty Ltd v Koudstaal [2012] FCA 1337 Manday Investments Pty Ltd v Commonwealth Bank of Australia (No 3) [2012] FCA 751 Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473 Spencer v Commonwealth of Australia [2010] HCA 28, (2010) 241 CLR 118 Thorpe v Commonwealth of Australia (No 3) (1997) 144 ALR 677 Date of hearing: 4 February 2020 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 26 Counsel for the Applicant: The Applicant appeared in person with the assistance of an interpreter Counsel for the Respondent: The Respondent filed a submitting notice save as to costs Counsel for the Intervener: Ms C Trahanas Solicitor for the Intervener: Australian Government Solicitor ORDERS NSD 994 of 2019 BETWEEN: MIROSLAW PRZYBYLOWSKI Applicant AND: AUSTRALIAN HUMAN RIGHTS COMMISSION Respondent COMMONWEALTH ATTORNEY-GENERAL Intervener JUDGE: FLICK J DATE OF ORDER: 27 FEBRUARY 2020 THE COURT ORDERS THAT: 1. The proceeding is dismissed. 2. The Interlocutory Application filed by the Applicant and dated 4 October 2019 is dismissed. 3. The Applicant in the proceeding is to pay the costs of the Intervener, namely the Attorney-General of the Commonwealth of Australia. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT FLICK J: 1 On 24 June 2019, the Applicant in the present proceeding, Mr Miroslaw Przybylowski, filed in this Court an Originating application for judicial review ("Originating Application"). The Respondent was named as the Australian Human Rights Commission (the "Commission"). Judicial review was sought of a decision of the President of the Commission (Ms Rosalind Croucher AM), made on 13 June 2019, "not to continue to inquire into [Mr Przybylowski's] complaint". In September 2019, Mr Przybylowski also filed a Statement of Claim, naming as Respondents Ms Croucher and Mr Porter, being the Attorney-General of the Commonwealth (the "Attorney-General"). The Attorney-General had, in the interim in August 2019, already intervened in the proceeding. 2 The facts giving rise to this complaint made to the Commission and the decision now sought to be reviewed, and indeed earlier complaints made to the Commission and earlier decisions of the Commission, may be traced back to the marriage of Mr Przybylowski in Poland, and his subsequent divorce in Australia in 2002. A Polish Court has made a number of orders requiring that Mr Przybylowski pay his former wife spousal support. Those orders are sought to be enforced in Australia. These facts give rise to the complaints now made by Mr Przybylowski. 3 A delegate of the Commission, it may be noted, also declined to continue to inquire into an earlier complaint made by Mr Przybylowski in May 2017. A Judge of this Court summarily dismissed an application seeking review of that decision: Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473. 4 The complaint to the Commission which gives rise to the present proceeding is to be found in complaint forms lodged with the Commission on 1 and 7 December 2018. The reasons of the President summarise these complaints as follows: Summary of your current complaint The following claims can be discerned from the complaint forms and associated documents and submissions you provided to the Commission: • You claim the Commission did not revise its decision even though you say you proved that the Commission's 'boss' is responsible for the United Nations Convention on the Recovery Abroad of Maintenance (UNCRAM). • You claim the Commission did not disclose information to you about the UNCRAM and the Attorney-General's responsibilities. • You claim the Commission has twice breached its independence and impartiality by politically motivated decisions. • You say that Poland has denied sending any maintenance request for any child support/spousal maintenance after your maintenance obligations ended on 21 June 2013 and the registration of the maintenance order is corruption. • You claim the Commission misled the FCA that Complaint 207-01021 was under the ICCPR when in fact it was under the Age Discrimination Act, 2004 (Cth)(ADA). • You are unable to enter or live in Poland, the country of your birth, because of the inaction of the Commission. • You claim the Commission has breached Article 12 of the ICCPR from 2014. You have requested that all the documents you provided to the Commission in relation to Complaint 2017-01021 and Complaint 2018-10660 also be considered in relation to your complaint. The reference to "UNCRAM" is a reference to the United Nations Convention on the Recovery Abroad of Maintenance. The statement of reasons provided by the President thereafter state the decision reached as follows: My decision Section 20(2)(ba) of the AHRC Act says that the Commission may decide not to continue to inquire into a complaint if satisfied, having regard to all the circumstances, that the continuation of an inquiry into the act or practice is not warranted. I have considered all the information that has been provided and I wish to advise that I have decided not to continue to inquire into your complaint under section 20(2)(ba). Reasons for that decision are thereafter set forth. 5 Now before this Court are two Interlocutory Applications. The first is an Interlocutory Application filed on 2 October 2019 by the Attorney-General, seeking the summary dismissal of the proceeding. An Outline of Submissions filed by the Attorney-General on 18 December 2019 seeks an order for summary dismissal pursuant to either r 26.01(a) or r 26.01(c) of the Federal Court Rules 2011 (Cth) (the "Federal Court Rules"). The second of the two Interlocutory Applications is an application by Mr Przybylowski seeking "a stay order … until Poland will [be] assessed under the EU Law Regulations …". 6 The Commission has filed a submitting appearance, save as to costs. 7 It is concluded that the proceeding should be dismissed pursuant to r 26.01. The Judicial Review Application & the Orders sought 8 The Originating Application filed in June 2019 identified the grounds of review upon which the decision of the President was sought to be impugned, as being (without alteration): "a breach of natural justice by made the decision without obtaining first a decision of the International Court of Justice…"; and "a breach of procedural fairness by made the decision without obtaining first a decision of the International Court of Justice…". The Statement of Claim filed in September 2019 relevantly also alleged fraud on the part of the Commission, including an allegation that the President "should be investigated by the Australian Federal Police or a proper Australian Medical Authority for trying to cover up the international scandal to request money under no valid by law overseas court's order…". 9 The orders sought in the Originating Application were orders: to "[dismiss] the whole AHRC Decision dated 16 May 2019…"; staying the "order in the AHRC procedure until the order will be made by the International Court of Justice"; obliging "the AHRC to start the process to make a special agreement with Poland or to make a unilateral application by Australia itself to bring the dispute about the spousal maintenance before International Court of Justice…"; and obliging "the person who will make the special agreement with Poland or the unilateral application after the AHRC started the process, that this whole originating application for the Judicial Review made by [the] applicant Miroslaw Przybylowski must be included to any application for the International Court of Justice". Rule 26.01 10 Rule 26.01(1) of the Federal Court Rules provides as follows: A party may apply to the Court for an order that judgment be given against another party because: (a) the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding; or (b) the proceeding is frivolous or vexatious; or (c) no reasonable cause of action is disclosed; or (d) the proceeding is an abuse of the process of the Court; or (e) the respondent has no reasonable prospect of successfully defending the proceeding or part of the proceeding. Rule 26.01(a) replicates s 31A of the Federal Court of Australia Act 1976 (Cth): Manday Investments Pty Ltd v Commonwealth Bank of Australia (No 3) [2012] FCA 751 at [8] per McKerracher J. The "authorities on s 31A are useful in considering r 26.01": Leica Geosystems Pty Ltd v Koudstaal [2012] FCA 1337 at [16] per Collier J. 11 The exercise of the discretion conferred by r 26.01 or s 31A must be approached with "caution": Spencer v Commonwealth of Australia [2010] HCA 28 at [24], (2010) 241 CLR 118 at 131 to 132 per French CJ and Gummow J. Hayne, Crennan, Kiefel and Bell JJ, in describing s 31A as a radical departure from earlier forms of provisions permitting the entry of summary judgment, expressed their approach to s 31A as follows: Two aspects of these provisions are to be noted. [51] First, the central idea about which the provisions pivot is "no reasonable prospect" (emphasis added). The choice of the word "reasonable" is important. If s 31A is to be seen as deriving from r 24.2 of the Civil Procedure Rules 1998 of England and Wales, its provisions underwent an important change in the course of their translation from that jurisdiction to this. The English rule speaks of "no real prospect"; s 31A speaks of "no reasonable prospect". The two phrases convey very different meanings. [52] Second, effect must be given to the negative admonition in sub-s (3) that a defence, a proceeding, or a part of a proceeding may be found to have no reasonable prospect of successful prosecution even if it cannot be said that it is "hopeless" or "bound to fail". It will be necessary to examine further the notion of "no reasonable prospect". But before undertaking that task, it is important to begin by recognising that the combined effect of sub-ss (2) and (3) is that the enquiry required in this case is whether there is a "reasonable" prospect of prosecuting the proceeding, not an enquiry directed to whether a certain and concluded determination could be made that the proceeding would necessarily fail. [53] In this respect, s 31A departs radically from the basis upon which earlier forms of provision permitting the entry of summary judgment have been understood and administered. Those earlier provisions were understood as requiring formation of a certain and concluded determination that a proceeding would necessarily fail. That this was the basis of earlier decisions may be illustrated by reference to two decisions of this Court often cited in connection with questions of summary judgment: Dey v Victorian Railways Commissioners (74) and General Steel Industries Inc v Commissioner for Railways (NSW) (75). … [59] In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like "clearly", "manifestly" or "obviously") as "frivolous", "untenable", "groundless" or "faulty". But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power given by s 31A. Nor can the content of the word "reasonable", in the phrase "no reasonable prospect", be sufficiently, let alone completely, illuminated by drawing some contrast with what would be a "frivolous", "untenable", "groundless" or "faulty" claim. [60] Rather, full weight must be given to the expression as a whole. The Federal Court may exercise power under s 31A if, and only if, satisfied that there is "no reasonable prospect" of success. Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly. But the elucidation of what amounts to "no reasonable prospect" can best proceed in the same way as content has been given, through a succession of decided cases, to other generally expressed statutory phrases, such as the phrase "just and equitable" when it is used to identify a ground for winding up a company. At this point in the development of the understanding of the expression and its application, it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes. The non-justiciability of the grounds relied upon – r 26.01(a) 12 The proceeding should be dismissed for either of two principal – but inter-related – reasons, namely: the fact that any argument founded upon any requirement that the President (or any other person) pursue a proceeding in the International Court of Justice is non-justiciable; and the absence of any reasonable prospects of success of the Applicant being able to establish a denial of procedural fairness by reason of the failure of the President to first obtain (or to await) a decision of the International Court of Justice. If any ground of review were made out, it would have been open to this Court to make an order quashing the decision of the Commission; but it would not have been open to this Court to make any order requiring (for example) any person "to make [a] special agreement with Poland…". 13 Although much of the affidavit material filed by the Applicant contains irrelevant information, and although many of his claims lack an appropriate level of specificity, such deficiencies can presently be placed to one side. The Applicant's first language is not English, so difficulties in the expression of his claims should not stand in the way of those claims having some prospects of success. But such is not the present case. 14 Claims questioning the manner in which the Commonwealth or its officers undertake its international responsibilities, including claims requiring (for example) the pursuit of remedies from the International Court of Justice, are non-justiciable: Thorpe v Commonwealth of Australia (No 3) (1997) 144 ALR 677 ("Thorpe"). Proceedings had there been instituted in the High Court of Australia seeking (inter alia) an order that the Commonwealth move the United Nations General Assembly for an Advisory Opinion from the International Court of Justice "as to the separate rights and legal status of the original peoples of this land": Thorpe (1997) 144 ALR at 679. Kirby J concluded that the proceeding should be set aside for want of jurisdiction. In doing so, his Honour concluded at 693: … The court may not take upon itself the function, by the declarations sought by Mr Thorpe, in effect to require the Commonwealth on behalf of Australia to act in particular ways in relation to the organs of the United Nations. This court has never done this. It should not start now. The court has no knowledge of the many considerations which would have to be taken into account in deciding whether Australia should seek such a resolution from the General Assembly. It has no means of knowing how any such application would affect Australia's international relations generally or its relations with particular countries or its other activities within the United Nations and its agencies. These are all matters which the Australian Constitution reserves to the Executive Government of the Commonwealth. They defy judicial application. They turn on a multitude of considerations unknown to this court. They are matters upon which the Australian Government speaks to the international community with a single voice. That voice is the voice of the Executive Government chosen from the Parliament elected by the people of Australia. It is not the voice of this court. The "non-justiciability of a dispute determines conclusively that [a] discretion should not be exercised and the remedy refused": Kaur v Sikh Gurdwara Perth (Inc) [2017] WASC 270 at [82] per Le Miere J. 15 Also left to one side is any difficulty that the President (or the Commission) may have in "obtaining first a decision of the International Court of Justice…". Article 34(1) of the Statute of the International Court of Justice thus provides: Only states may be parties in cases before the Court. 16 The other principal reason for concluding that the proceeding should be dismissed is the absence of any reasonable prospect of success in establishing a breach of the rules of natural justice or procedural fairness. The difficulty inherent in the manner in which Mr Przybylowski seeks to advance his grounds of review, and even assuming those grounds could raise justiciable issues, is the fact that the rules of natural justice or procedural fairness would not require the President to actively take steps to secure a judgment from the International Court of Justice, or to await a decision of that Court. On the facts of the present case, those rules would simply require the President to consider such materials and submissions as were placed before her by Mr Przybylowski, and to disclose to him such other materials as were before her and of arguable relevance to the decision to be made. Such an opportunity to provide materials and make submissions was in fact extended to Mr Przybylowski, and he availed himself of that opportunity. The absence of any other denial of procedural fairness & other difficulties 17 Other than claiming a breach of the rules of natural justice or procedural fairness on the part of the President by reason of not "obtaining first a decision of the International Court of Justice…", no other allegation as to procedural unfairness is relied upon by the Applicant in his Originating Application. 18 If the form of that Originating Application, however, is left to one side, and if consideration is given to the complaints made to the President, those complaints do include allegations that: the Commission did not proceed in an impartial and independent manner; and withheld information "about the UNCRAM and the Attorney-General's responsibilities". Irrespective of whether or not the Applicant has deliberately abandoned these "complaints" as particulars of a denial of natural justice or procedural fairness, neither "complaint" has substance. 19 As to the former, there is no factual basis for any allegation as to a lack of impartiality or a lack of independence. As to the latter, Australia is a party to the UNCRAM. But the President was correct in her statement of reasons when she provided the following explanation to the Applicant in respect to the absence of any "role" that the Commission may play in respect to this Convention: In relation to your claim that the Commission withheld information from you relating to the Attorney-General's responsibility for the UNCRAM I note that the AHRC Act says that the Commission can consider complaints about acts or practices regarding a breach of the international instruments scheduled to, or declared under, the AHRC Act. The UNCRAM is not an instrument that is scheduled or declared under, the AHRC Act. Therefore, it is not part of the Commission's role to provide advice or information about this instrument or deal with complaints relating to this instrument. In addition, I understand from provided documents that you have raised your allegations of fraud in relation to the spousal maintenance order and child support and the alleged breach of the UNCRAM, directly with the Attorney-General and/or the Attorney-General's Department. In 2016 and 2018, the Attorney-General's Department advised you that your concerns regarding fraud did not fall within the remit of the Attorney-General or the Attorney-General's Department. Notwithstanding the complaint made by the Applicant as to the withholding of information, on the materials available to the Court, there was no information identified which had been withheld by the President at the time she made her decision. All such materials "about the UNCRAM and the Attorney-General's responsibilities" appeared to be materials provided by the Applicant to the President for her consideration. There was no evidence of the President having any further materials which were not disclosed. 20 No denial of natural justice or procedural fairness thus emerges from either the grounds relied upon by the Applicant in his Originating Application, nor from the complaints he made to the Commission. 21 The allegation of fraud as made in the Statement of Claim is also without substance. CONCLUSIONS 22 The arguments sought to be advanced by the Applicant are either non-justiciable or lacking in substance. 23 The Applicant has no reasonable prospects of success. The proceeding should be dismissed pursuant to r 26.01(1) of the Federal Court Rules. 24 The Interlocutory Application filed by Mr Przybylowski and dated 4 October 2019 seeking "a stay order … until Poland will [be] assessed under the EU Law Regulations …" should also be dismissed. The actual content of the order sought by Mr Przybylowski is not readily apparent and, in any event, the Interlocutory Application falls away given the dismissal of the substantive proceeding. 25 It should further be noted that the Applicant has served a number of notices under s 78B of the Judiciary Act 1903 (Cth). The Attorney-General has not sought to intervene. It is respectfully concluded that those notices do not "involve a matter arising under the Constitution or involving its interpretation…". 26 There is no reason why costs should not follow the event such that the Applicant is to pay the costs of the Intervener. THE ORDERS OF THE COURT ARE: 1. The proceeding is dismissed. 2. The Interlocutory Application filed by the Applicant and dated 4 October 2019 is dismissed. 3. The Applicant in the proceeding is to pay the costs of the Intervener, namely the Attorney-General of the Commonwealth of Australia. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick. Associate: Dated: 27 February 2020