Federal Court of Australia Lu v University of New South Wales [2022] FCA 588 File number: NSD 6 of 2022 Judgment of: KATZMANN J Date of judgment: 20 May 2022 Catchwords: PRACTICE AND PROCEDURE — continued non-compliance with Court order — where applicant given repeated opportunities to comply, whether a self-executing order should be made providing for dismissal of proceeding if order not complied with by a particular date and time Legislation: Australian Human Rights Commission Act 1986 (Cth) s 46PO(3A)(a) Federal Court of Australia Act 1975 (Cth) ss 37M, 37P Federal Court Rules 2011 (Cth) rr 5.21, 5.22, 5.23, 34.163 Cases cited: Halliday v Sacs Group Pty Ltd (1993) 67 ALJR 678; 113 ALR 637 Halliday v Sacs Group Pty Ltd (unreported, High Court of Australia, 23 December 1992) James v WorkPower Inc [2018] FCA 2083 Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388 Oil Basins Ltd v Watson (2017) 252 FCR 420 Welsh v Digilin Pty Ltd (ACN 078 278 449) [2008] FCAFC 149; 250 ALR 13 Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 39 Date of hearing: 19 May 2022 Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondent: Mr J Mattson Solicitor for the Respondent: Bartier Perry ORDERS NSD 6 of 2022 BETWEEN: MIN LU Applicant AND: UNIVERISTY OF NEW SOUTH WALES Respondent order made by: KATZMANN J DATE OF ORDER: 20 MAY 2022 THE COURT ORDERS THAT: 1. Unless the applicant files and serves the notice of termination dated 8 November 2018 as received from the Australian Human Rights Commission, including Attachments A and B to that notice by 5pm on 23 May 2022, the originating application be dismissed with an order that the applicant pay the respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT KATZMANN J: Introduction 1 Min Lu is a former student of the University of New South Wales (UNSW) who graduated with a Masters of Accounting and Business Information Technology in July 2015. On 29 December 2020, Ms Lu lodged a complaint with the Australian Human Rights Commission alleging that UNSW discriminated against her because of her association with a person with a disability, her sex, her marital or relationship status, and her race. She also claimed to have experienced racial hatred and to have been victimised for making, or trying to make the complaint. 2 The complaint contained a litany of grievances against UNSW. It appears to relate to, and arise out of, an incident in October 2018 when an academic arranged for security to be called after Ms Lu presented at his office after business hours. Her licence to enter the UNSW Kensington campus was revoked on 1 November 2018. She asked the University four days later if she could attend the campus to assist her nephew, who she said was a current student, because he had broken his foot and needed assistance walking. This request was apparently denied. The revocation was lifted in July 2019 but on the condition that Ms Lu refrain from communicating with the academic. In August 2020, Ms Lu and her then solicitor complained to UNSW of discrimination. 3 On 8 November 2021, the Commission issued a notice terminating Ms Lu's complaint under s 46PH(2) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) on the ground that it was satisfied, having regard to all the circumstances, that the continuation of the inquiry into the complaint was not warranted (notice of termination). The notice of termination advised Ms Lu that, if a complaint is terminated under s 46PH(1)(c), the affected person may make an application to this Court alleging unlawful discrimination. It went on to state: Under section 46PO(3A)(a) of the AHRCA, where a complaint is terminated under section 46PH(1)(c), an application to the court must not be made unless the court concerned grants leave to make the application. The FCFCOA and FCA can award costs against either party in proceedings under section 46PO of the AHRCA. Reasons for the decision are provided in Attachment A. A copy of the complaint is provided at Attachment B. (Emphasis added) The originating application 4 On 4 January 2022, Ms Lu filed an originating application in this Court in which she alleged unlawful discrimination by UNSW contrary to the Disability Discrimination Act 1992 (Cth), the Age Discrimination Act 2004 (Cth), the Race Discrimination Act 1975 (Cth), the Sex Discrimination Act 1984 (Cth), and the AHRC Act. She sought compensation of over $600,000 and, amongst other things, requested orders requiring UNSW to "cease doing all adverse actions" and "[c]orrect all unfair procedures and administrative documents". 5 Despite what she was told by the Commission in the notice of termination, however, Ms Lu did not seek leave to make the application pursuant to s 46PO(3A)(a) of the AHRC Act and has persistently argued that she need not do so. 6 At the time she lodged her originating application, Ms Lu also sent the Court a bundle of documents which appeared to be a copy of her original complaint to the Commission and the notice of termination. These documents were stamped received, but not accepted for filing. The notice of termination did not contain copies of Attachment A or B. The copy of the complaint was not labelled Attachment B. Without seeing a copy of Attachment B, it is impossible to know whether its contents were otherwise identical. 7 On 14 February 2022, Ms Lu filed an amended originating application which added new claims for relief. She also sent to the Court a copy of her complaint form to the Commission but neither Attachment A nor B. Again, this document was not accepted for filing but stamped as having been received. 8 On 10 March 2022, UNSW filed a notice of acting recording that it had appointed Bartier Perry to represent it in the proceeding. The applicant's non-compliance 9 Rule 34.163 of the Federal Court Rules 2011 (Cth) (Rules) provides: Starting a proceeding—application and claim (1) A person who wants to start a proceeding under the Human Rights Act must file an originating application, in accordance with Form 116. (2) The originating application must be accompanied by: (a) a copy of the original complaint to the Commission; and (b) a notice of termination of the complaint given by the President of the Commission. (3) The originating application must include any other claim that the person has, in addition to the claim of unlawful discrimination. 10 On 11 April 2022, at a case management hearing in which Ms Lu did not appear, the Court made orders in her absence, in accordance with r 34.163, requiring Ms Lu to file and serve a copy of the notice of termination, including Attachments A and B. 11 On 19 April 2022, at a further case management hearing listed at the request of Ms Lu, the time for compliance with this order was extended to 21 April 2022. 12 On 27 April 2022, the order still having not been complied with, Bartier Perry wrote to the Commission directly asking whether it could provide the firm with copies of Attachments A and B to the notice of termination. 13 On 2 May 2022, Rachel Holt from the Investigation and Conciliation Service at the Commission replied as follows: I understand that with her application Ms Lu has served the Notice of termination but not Attachment A or Attachment B. 'Attachment B' is a copy of Ms Lu's complaint – a redacted copy of which was provided to UNSW on 5 March 2021. I note that the Attachment B Ms Lu was provided with when her complaint was finalised has 'Attachment B' printed on the top right side of each page of the document. In relation to Attachment A, that is a letter of reasons for decision provided by the Commission to Ms Lu. As it was correspondence for Ms Lu, I would need to seek her permission before providing you with a copy. I am happy to contact Ms Lu in that regard if you would like for me to do so – noting that it appears there is a court order that Ms Lu file a copy of Attachment A and if she is non-compliant then I understand that there are consequences that may flow as a result for Ms Lu. 14 The following day, Bartier Perry wrote to Ms Lu reminding her that she had not yet filed and served a copy of the notice of termination, including Attachments A and B, in accordance with the Court's orders. The letter also informed her that the firm had been in contact with the Commission and encouraged her to provide her consent for the Commission to release Attachment A to them. 15 A week after that, on 12 May 2022, Bartier Perry wrote to Ms Lu again, noting that she had still not filed "a copy of the notice of termination dated 8 November 2021 as received from the Australian Rights Commission, including Attachments A and B to that notice" in accordance with the Court's order on 11 April, and advised that, if a copy was not filed and served by 4 pm on 13 May 2022, they were instructed to seek to have the matter be relisted before the Court "to discuss [her] non-compliance with the orders". Immediately afterwards it emailed the Commission asking whether Ms Holt could confirm whether she had received a response from Ms Lu. Ms Holt replied, confirming that she had written to Ms Lu at both her email addresses and was yet to receive a response. 16 At 4.23pm the following day, Bartier Perry notified the Court that Ms Lu had not complied with the Court's order and requested that the matter be relisted. 17 On 16 May 2022, the Court emailed the parties advising that the matter had been relisted for case management at 9.30am on 19 May 2022. Ms Lu "objected" to this, saying that she was "coughing and unwell to talk which was notified". She also claimed that Bartier Perry did not have authorisation from UNSW under r 10.22 of the Rules (which deals with a lawyer's capacity to accept service of an originating application) to request the relisting, and that, in any event she had lodged the notice of termination on the Court's electronic portal. 18 On 17 May 2022, the Registry emailed the parties advising that, in the absence of any medical evidence to support Ms Lu's contention that she is unable to attend because she is unwell, the matter would proceed as listed. 19 Later that day, Ms Lu responded saying she did not consent to the matter being re-listed and repeating her claim that the University's solicitors did not have authorisation. She also claimed that "[s]omeone is manipulating case which is highly concerned". She sent a further email seeking that the listing be vacated and that a jury hear her case. 20 The Registry emailed the parties that the Court was not minded to vacate the case management hearing. The Registry also advised: If the applicant does not attend the case management hearing, orders may be made in her absence. I also remind the applicant that if she does not appear at the case management hearing or comply with orders of the Court, her application may be dismissed pursuant to s 20(5)(d) of the Federal Court of Australia Act 1976 (Cth). 21 On 18 May 2022 Bartier Perry filed and served an affidavit of Andrew Yahl affirmed the same day. In the email to Ms Lu to which the affidavit was attached, Mr Mattson, a partner of the firm, informed Ms Lu that the affidavit would be relied upon in support of an application to be made at the case management hearing for an order that, unless Ms Lu filed and served Attachment A to the notice of termination by 5 pm on 23 May 2022, the proceeding would be dismissed with costs. Ms Lu responded to that email a short time later. She asserted (without alteration): The order is under appealing period. Your affidavit and all documents are invalid and illegal as you fail to provide the authorization to represent the UNSW based on rule 10.22 and 10.03 [which relates to service on incorporated associations]. You and the order are breaching rule 10.03, 10.22, 10.24 [which relates to substituted service] and rule 10.35 [there is no such rule] of Federal court and it is highly like collusion to interfere the Justice to ask the Registrar and Judge not to process all filings from the applicant. Also, the Jury is required rather than judge since the orders and your requests are unfair and unreasonable. It is never consented to relist the third time case management which is abusing process. The president of UNSW never nominated your firm and never told me when the documents were served to him in person. The corruption and false representations are highly concerned. 22 Ms Lu appeared by videoconference at the case management hearing on 19 May 2022, though refused to turn on her camera on request, after sending a "medical certificate" to the Court at 11.34 pm on 18 May 2022 from an unnamed person which stated that she "has a medical condition" and was "unfit…for court attendance" from 18 to 20 May 2022. 23 At the hearing Mr Mattson, who appeared for the University, read Mr Yahl's affidavit and tendered the email correspondence with Ms Lu described at [21] above. The University's application 24 At the outset of the case management hearing, the University applied for a self-executing order that, unless the Attachment A and B of the notice of termination were not filed and served by 23 May 2022, the proceedings be dismissed with costs. He relied on s 37P of the Federal Court of Australia Act 1975 (Cth) (FCA Act) and r 5.21 of the Rules. 25 Section 37P relevantly provides that: (5) If a party fails to comply with a direction given by the Court or a Judge under subsection (2), the Court or Judge may make such order or direction as the Court or Judge thinks appropriate. (6) In particular, the Court or Judge may do any of the following: (a) dismiss the proceeding in whole or in part; … (d) award costs against a party; (e) order that costs awarded against a party are to be assessed on an indemnity basis or otherwise (7) Subsections (5) and (6) do not affect any power that the Court or a Judge has apart from those subsections to deal with a party's failure to comply with a direction. 26 Rule 5.21 reads: Self-executing orders A party may apply to the Court for an order that, unless another party does an act or thing within a certain time: (a) the proceeding be dismissed; or (b) the applicant's statement of claim, or alternative accompanying document referred to in rule 8.05, be struck out; or (c) a pleading of the respondent be struck out; or (d) the party have judgment against the other party. 27 Rule 5.23 provides that, if an applicant is "in default", a respondent may apply to the Court for an order that a step in the proceeding be taken within a specified time, or the proceeding be stayed or dismissed immediately or in conditions specified in the order. 28 Rule 5.22 defines what is meant by a party being in default: When a party is in default A party is in default if the party fails to: (a) do an act required to be done, or to do an act in the time required, by these Rules; or (b) comply with an order of the Court; or (c) attend a hearing in the proceeding; or (d) prosecute or defend the proceeding with due diligence. 29 Mr Mattson submitted that a self-executing order was warranted in this case because of Ms Lu's continued non-compliance with the Court's order and her unwillingness to cooperate with the Court and the Commission. He argued that, in the light of the history of this matter, the Court could have no confidence that Ms Lu would file and serve the attachments to the notice of termination in future. He referred to Welsh v Digilin Pty Ltd (ACN 078 278 449) [2008] FCAFC 149; 250 ALR 13 in which Tamberlin, Greenwood and Collier JJ observed that the power to make a self-executing order was discretionary (at [12]–[14]) and cited the following remarks by Wilcox and Gummow JJ in Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388 at 396 concerning the scope of the discretion: The discretion...is unconfined, except for the condition of non-compliance with a direction... [T]wo situations are obvious candidates for the exercise of the power: cases in which the history of non-compliance by an applicant is such as to indicate an inability or unwillingness to co-operate with the Court and the other party or parties in having the matter ready for trial within an acceptable period and cases – whatever the applicant's state of mind or resources – in which the non-compliance is continuing and occasioning unnecessary delay, expense or other prejudice to the respondent. 30 Mr Mattson submitted that the Commission's reasons were relevant to the question of whether the Court should grant Ms Lu leave to file her application (see AHRC Act, 46PO(3A)(a)), a question yet to be determined, relying on James v WorkPower Inc [2018] FCA 2083. 31 In James at [37] Mortimer J held that, in determining to bring such an application, it is appropriate for the Court to consider whether the claims made by an applicant are reasonably arguable and, at least, "nor fanciful". She also postulated at [38] a range of "other permissible considerations. They included: (3) how thoroughly the Commission has dealt with the merits of the complaint. For example, it may be the Commission's termination reasons thoroughly answer the alleged merits of a complaint and make it clear the complaint is not reasonably arguable; [and] … (6) the factual and legal complexity of the matters raised by the allegation of unlawful discrimination[.] 32 Mr Mattson argued that, since Attachment A contained the Commission's reasons for its decision, it would be impossible to address these considerations if the document is not filed. 33 Finally, Mr Mattson sought to derive support for his application from the Court's obligation under s 37M of the FCA Act to exercise the relevant powers in the way that best promotes the "overarching purpose" of the civil practice and procedure provisions of the Act and Rules, which is to facilitate the just resolution of disputes as quickly, efficiently and inexpensively as possible. He submitted that the disproportionate use of the Court's resources on this matter would have an impact on other litigants seeking justice. 34 Ms Lu insisted that she had filed or lodged the notice of termination with the two attachments but claimed that the Registry had rejected the filing unjustly, without making an application for the Registrar to accept the document for filing under r 3.04 or for review of the Registrar's decision under r 3.11. Be that as it may, I indicated that I would make inquiries with the Registry to ascertain whether she had, in fact, lodged the relevant attachment and that, if she had, I would arrange for a copy of to be provided to UNSW and see to it that it was filed. Consideration 35 Having made inquiries with the Registry, I am satisfied that Ms Lu has not sought at any stage to file the notice of termination as received from the Commission, including the two attachments. Equally, I am not satisfied that she lodged for filing Attachment A to the notice of termination. I am therefore satisfied that she has been in default of the Court's order since 21 April 2022 and she has not been frank with the Court. 36 In view of Ms Lu's continued non-compliance with the Court's order, I am satisfied that a self-executing order in the form proposed by UNSW is appropriate. 37 Despite being given repeated opportunities to file the relevant attachment to the notice, Ms Lu has proved unwilling to do so. Her correspondence with the Court and her interactions at each of the case management hearings have been high-handed, disrespectful and intemperate. She has consistently displayed disdain for the Court's orders, directions and processes. She has doggedly maintained, without any apparent basis, that Bartier Perry is not authorised to receive correspondence or otherwise act on the University's behalf. In an email to the Court in response to the notice listing the matter for case management, for example, she stated (without alteration): No, the applicant don't consent the other party's purported solicitors to request unnecessary re- listing with such short notice which must be rejected. As the order, next one 29 Aug is still remaining. Essentially, the purported don't have right to request based on rule 10.22 and receive documents. They need to provide the form authorization by noon tomorrow. The request from the purported solicitors is abusing public resources and legal procedures. The re- listing on 19 May must be dismissed. Without the applicant consent, why it can be relisted and order was made next one will be 29 Aug. Someone is manipulating case which is highly concerned. 38 These assertions are baseless. It is clear on the authorities that there is "a strong presumption" that a solicitor has a contract of retainer with a person who is the party for whom or which the solicitor appears on the record of proceedings: see, for example, Halliday v Sacs Group Pty Ltd (unreported, High Court of Australia, 23 December 1992) at pp 6–7 (Dawson J); Halliday v Sacs Group Pty Ltd (1993) 67 ALJR 678 at 679–680; 113 ALR 637 at 639 (Mason CJ); Oil Basins Ltd v Watson (2017) 252 FCR 420 at [40] (North and Rares JJ); [73]–[74] (Dowsett J). Contrary to Ms Lu's assumption, it is she who bears the burden of establishing the absence of the University's contract of retainer, not the solicitor on the record for the University: see Oil Basins Ltd v Watson at [73]. And that is a burden Ms Lu did not discharge. 39 Given her ongoing non-compliance with the order and her disdain for the Court's role and processes, I have little confidence that Ms Lu will comply with the order to file and serve the relevant documents. The orders UNSW seeks, however, will give her one last chance to do so. The best way to promote the overarching purpose is to make those orders. Far too much of the judicial and administrative resources of the Court have already been consumed on this matter to the detriment of other matters. If the orders are not made, additional unwarranted strain will be placed on those resources and UNSW will continue to incur unnecessary costs. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Katzmann. Associate: Dated: 20 May 2022