FEDERAL COURT OF AUSTRALIA Przybylowski v Australian Human Rights Commission [2022] FCA 1249 File number(s): NSD 1187 of 2021 Judgment of: PERRY J Date of judgment: 21 October 2022 Catchwords: ADMINISTRATIVE LAW – application for leave to appeal from a decision of a single judge of the Federal Court summarily dismissing an application for judicial review of a decision by the Australian Human Rights Commission – where grounds of application are not particularised and would have no prospects of success if leave to appeal were granted – where application fails to identify any arguable error in the reasons of the primary judge – application for leave to appeal dismissed PRACTICE AND PROCEDURE – application for adjournment by applicant refused in circumstances where not in the interests of justice to stay the proceeding indefinitely Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth) Australian Human Rights Commission Act 1986 (Cth) Federal Court of Australia Act 1976 (Cth) Family Law Regulations 1984 (Cth) Federal Court Rules 2011 (Cth) International Covenant on Civil and Political Rights. Opened for signature 19 December 1966. 999 UNTS 171 (entered into force 23 March 1976) Cases cited: Bibawi v Australian Human Rights Commission [2021] FCA 1476 Bibawi v Australian Human Rights Commission [2022] FCA 607 Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225 Décor Corp Pty Ltd v Dart Industries Inc [1991] FCA 844; (1991) 33 FCR 397 FEY17 v Minister for Home Affairs [2020] FCA 1014 FKV17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1950 Fokas v Mansfield as Trustee of the Bankrupt Estate of Maria Fokas (No 2) [2020] FCA 30 Minister of State for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473 Przybylowski v Australian Human Rights Commission [2020] FCA 198 WZATH v Minister for Immigration and Border Protection [2014] FCCA 612 WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 43 Date of hearing: 20 September 2022 Counsel for the Applicant The applicant appeared in person Counsel for the First Respondent The first respondent filed a submitting notice Solicitor for the Second Respondent Mr J Hutton of the Australian Government Solicitor ORDERS NSD 1187 of 2021 BETWEEN: MIROSLAW PRZYBYLOWSKI Applicant AND: AUSTRALIAN HUMAN RIGHTS COMMISSION First Respondent ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA Second Respondent order made by: perry j DATE OF ORDER: 21 october 2022 THE COURT ORDERS THAT: 1. The application for leave to appeal is dismissed. 2. The applicant is to pay the second respondent's costs as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT PERRY J: 1. INTRODUCTION 1 This is an application for leave to appeal from a decision of a judge of this court summarily dismissing the application for judicial review brought by the applicant, Mr Miroslaw Przybylowski, under r 26.01 of the Federal Court Rules 2011 (Cth) (FCR): Przybylowski v Australian Human Rights Commission [2021] FCA 1398. That application should be dismissed for the following reasons. 2. BACKGROUND 2 The primary judge set out the relevant background in her Honour's reasons at [9]–[30]. It is not necessary to repeat all of the detail in these reasons and I have focused on the matters of most direct relevance to the present application. 3 In essence, Mr Przybylowski's application for judicial review before the primary judge was the third set of proceedings instituted by him in the Federal Court arising from the registration of orders made by a Polish Court requiring Mr Przybylowski to pay spousal support and child support (the spousal maintenance payments) to his former wife (the Polish Orders) by the Department of Human Services in Australia in January 2014. That decision to register the Polish Orders was the subject of an unsuccessful application for review by Mr Przybylowski in 2014 in the Social Security Appeals Tribunals (SSAT) (now the Social Services & Child Support Division of the Administrative Appeals Tribunals (AAT)) (Application Book (AB) 49–54). Mr Przybylowski then appealed the decision of the SSAT (the 2014 SSAT decision) to the (then) Federal Circuit Court (FCC) in September 2014. That appeal was dismissed in May 2015 on the ground that it was incompetent and lacking in merit. 4 Mr Przybylowski first sought judicial review in the Federal Court of a decision made by the first respondent to the present proceeding, the Australian Human Rights Commission, on 12 May 2017 not to enquire into complaints made by him with respect to various departmental decisions in relation to child support and spousal maintenance and against the Family Court of Australia. That application was dismissed on the basis that it did not disclose any reasonable cause of action and had no reasonable prospects of success: Przybylowski v Australian Human Rights Commission (No 2) [2018] FCA 473 (Perry J). 5 A further set of proceedings was instituted by the applicant in the Federal Court for judicial review of a decision made by the Commission on 13 June 2019 not to continue to enquire into his complaint. Those proceedings were summarily dismissed on the basis that the arguments sought to be advanced by Mr Przybylowski were either non-justiciable or lacking in substance, and therefore his application had no reasonable prospects of success: Przybylowski v Australian Human Rights Commission [2020] FCA 198 (Flick J) (the 2020 Judgment). 6 On 19 November 2020, the applicant wrote to the AAT seeking to re-open the 2014 SSAT decision (AB63). The AAT responded by email to the applicant's letter advising that it was unable to assist him further with his query on the basis that its power to determine the substantive aspects of the 2014 SSAT decision came to an end once it had delivered its decision and reasons, and otherwise noting that section 34(1) of the AAT Child Support Review Directions prevented any further explanation of its decision where a statement of reasons had been provided (AB57). The applicant then complained to the Commission about the failure of the AAT to reconsider his matter (AB46–8). As the primary judge explained, the genesis of the complaint before her Honour was the refusal by the AAT to "reopen" or "redecide" the issues determined in the 2014 SSAT decision, in circumstances where the appeal from that decision to the FCC had been dismissed in 2015. That refusal by the AAT (the AAT decision) was the subject of a complaint by Mr Przybylowski to the Commission, made on 26 November 2020 on the ground that it amounted to a breach of his human rights. Further details of his complaints were set out in subsequent correspondence and summarised by a delegate of the President of the Commission in a letter sent to Mr Przybylowski on 17 December 2020 (the natural justice letter) (AB108). In that letter, the principal investigator and conciliator at the Commission informed Mr Przybylowski that: (1) while Mr Przybylowski had ticked a box nominating the claims of victimisation and age discrimination as part of his complaint, those claims had not been substantiated and therefore his complaint would be considered only as one alleging a breach of human rights under Article 14 of the International Covenant on Civil and Political Rights (ICCPR); and (2) the delegate of the President of the Commission (the delegate) was considering exercising the power under s 20(2)(ba) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) not to enquire into his complaint because it lacked merit, other remedies were available, and the prospects of a practical outcome being achieved through the Commissioner's complaint process were lacking. 7 The natural justice letter also invited Mr Przybylowski to respond, as he in fact did by a number of responses, including a letter dated 17 December 2020 (although recorded with the incorrect year) (AB115–6). Mr Przybylowski sent further responses to the Commission on 18 December 2020 (AB136) and on 20 December 2020 (AB146) by way of email and letters containing further information. Receipt of these was acknowledged by the Commission. Mr Przybylowski sent further correspondence by email to the Commission between 11 January 2021 and 13 January 2021 inclusive (see AB112–144). 8 On 14 January 2021, the delegate decided pursuant to s 20(2)(ba) of the AHRC Act not to enquire into Mr Przybylowski's complaint. The delegate's reasons, as set out in the letter to the complainant dated 14 January 2021 (AB191–9), may be summarised as follows. 9 First, the delegate summarised the applicant's complaint and set out the scope of the complaint to the Commission and the documents provided in support of it. 10 Secondly, the delegate considered there was no apparent merit to the applicant's complaint of the right to equality before courts and tribunals under Article 14 paragraph 1 of the ICCPR, noting that that right is not absolute and that limitations may be imposed if compatible with this right, including limitations that pursue a legitimate aim. Further, the delegate noted, quoting the United Nations Human Rights Committee, that the right of equal access in Article 14.1 "concerns access to first instance procedures and does not address the issues of the right to appeal or other remedies" (emphasis added) (AB42). That being so, the delegate found that Mr Przybylowski had already exercised available avenues for the review of the 2014 SSAT decision, and the AAT's decision not to review or re-decide the 2014 SSAT decision was consistent with the relevant regulations and the legitimate public policy objective of not allowing parties to re-litigate matters that have already been finally determined. As such, the delegate concluded that the information provided by Mr Przybylowski did not support a conclusion that there had been a breach of Article 14 of the ICCPR with respect to the AAT's refusal in November 2020 to reconsider or revisit the 2014 SSAT decision. 11 Thirdly, the delegate found that, if Mr Przybylowski, having already exhausted the avenue of appeal to the FCC, wished to pursue a complaint about the AAT decision, there was an alternative avenue available to him. This was the option of lodging a complaint of breach of the AAT's Service Charter and the associated complaint process; and, if not satisfied of the outcome under that process, the possibility of making a further complaint to the Commonwealth Ombudsman in respect of the services provided by the AAT. 12 Fourthly, the delegate considered that it was highly unlikely that Mr Przybylowski could obtain the relief he sought through the Commission's complaint processes. The relief sought by Mr Przybylowski included the dismissal of the 2014 SSAT decision or the AAT's agreement to review and remake the 2014 SSAT decision, repayments of the money paid to Poland for spousal support and paid to his son, compensation including for costs arising out of previous court proceedings, a review under regulation 36 of the Family Law Regulations 1984 (Cth) or an order from the International Court of Justice (ICJ) regarding the legitimacy of the spousal maintenance payments. This was in part because, notwithstanding the absence of any merit in the applicant's complaint of breach of article 14 of the ICCPR, the Commission did not have the ability to dismiss the 2014 SSAT decision or the AAT decision, and could not require the AAT to take any particular steps or provide redress to a complainant. Further, it was unlikely that the AAT would agree to re-open the matter as part of the conciliation process. 3. THE DECISION OF THE PRIMARY JUDGE 13 The three grounds of review in the application for judicial review filed before the primary judge merely repeated ss 6(1)(a), (c) and (g) of the Administrative Decisions (Judicial Review) Act 1977 (Cth). The applicant also requested, on the basis that the Federal Court would transfer the relevant matter to the ICJ, "an order from the ICJ" about the Polish judgment, "which Australia and the Republic of Poland must accept and obey under the UN Treaty – the Convention on the Recovery Abroad of Maintenance". 14 The material before the primary judge comprised: (1) a Court Book prepared and filed by the Commission before filing its submitting notice which included: (a) the documents before the delegate, including Mr Przybylowski's complaint and correspondence with the Commission; and (b) further documents on which Mr Przybylowski sought to rely; and (2) the affidavit of Mr Przybylowski affirmed on 22 June 2021. 15 In addition to oral submissions, the parties also filed written submissions. 16 The primary judge summarily dismissed the application for judicial review on 11 November 2021. Her Honour's reasons may be summarised as follows. 17 First, the primary judge set out the principles governing summary dismissal applications under r 26.01 of the FCR, including the need for caution in exercising the discretion to summarily dismiss an application. No error was alleged, or is evident, in her Honour's description of the relevant principles. 18 Secondly, the primary judge noted that Mr Przybylowski's failure to provide any particulars of his grounds of review was in itself a sufficient basis on which to dismiss his application, citing: FEY17 v Minister for Home Affairs [2020] FCA 1014 at [90] (Greenwood J); FKV17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1950 at [45] (Collier J). Notwithstanding that, the primary judge attempted to address the substance of Mr Przybylowski's submission on the bare grounds of review as best as she could understand them, in light of the need for caution in exercising the power to summarily dismiss an application. 19 Thirdly, the primary judge was satisfied that the Attorney-General had established that each limb of Mr Przybylowski's application should be summarily dismissed under rr 26.01(a) and (c) of the FCR. Specifically, the primary judge held that: (1) Mr Przybylowski had not established any breach of procedural fairness, given that he was advised of the concerns held by the delegate about his complaint in the natural justice letter and was given an opportunity to, and did, respond to that letter (primary judge's reasons (PJ) at [39]); (2) the allegation that the delegate lacked jurisdiction to make the proposed decision must fail as at all relevant times the decision-maker was a delegate of the President of the Commission pursuant to s 19(1) of the AHRC Act (PJ at [41]); and (3) the bare allegation of fraud, being a serious allegation which must be distinctly pleaded and proved, was not properly made or particularised, in circumstances where the allegation of fraud did not identify who committed the fraud, what actions or omissions constituted the fraud, or how the fraud affected the decision (PJ at [42]). 20 Fourthly and in any event, the primary judge found that Mr Przybylowski was again seeking orders to have this Court refer his complaints to the ICJ despite Justice Flick having given summary judgment against Mr Przybylowski in an earlier proceeding in which Mr Przybylowski also sought an order to that effect: see the 2020 Judgment. In so doing, her Honour held that: 45. … Mr Przybylowski is seeking to have this Court consider and revisit matters which were the subject of the 2014 SSAT decision and 2015 FCC Judgment in order to pursue relief that is non-justiciable: Przybylowski at [14]. Mr Przybylowski seeks to do so in circumstances where he is well beyond the time limit imposed on an appeal from the 2015 FCC Judgment. There is a public interest that inheres in preventing individuals from repeatedly litigating matters that have been the subject of determination by a Court. Mr Przybylowski's attempt to mount a collateral challenge to the 201[4] SSAT decision and the 2015 FCC Judgment in these proceedings is at best unorthodox but in the context of the whole of the broader procedural history I am satisfied that it amounts to an abuse of process. Accordingly, I am satisfied that an additional basis on which these proceedings ought to be summarily dismissed is in reliance on r 26.01(d) of the [FCR]. 4. THE APPLICATION FOR AN ADJOURNMENT IN THE PRESENT PROCEEDING 21 On the morning of the hearing of his application for leave to appeal in this proceeding, Mr Przybylowski applied for an adjournment (the adjournment application) on the following basis: The reason for the adjournment is that the matter has been lodged in Polish court. There are lots of inconsistencies in the original Polish court decision and I believe, at that stage, this further order, I believe that any decision that this court is going to make would be inconsistent and unfair. (T3.21–24) 22 That application had been foreshadowed in his written submissions dated 24 August 2022 insofar as he asserted that these proceedings should be stayed because "the FCA has no jurisdiction in the family law proceeding under the FCA Act 1976" (applicant's submissions (AS) at [12]). Specifically, Mr Przybylowski submitted that the Federal Court lacked jurisdiction while the matter in the Polish court was proceeding and he appeared to foreshadow the possibility of an appeal from any decision of the relevant Polish court to the European Court of Justice. Mr Przybylowski sought orders "staying" the proceeding until final orders were made by the Polish court and said that there was no particular date by which the Polish court would make its final orders (T8.22–24). 23 In support of his request for a stay of the proceeding, Mr Przybylowski attached a number of documents to his written submissions dated 24 August 2022, including a translation from Polish to English of a document entitled "Request for a Preliminary Ruling" dated 19 August 2022 against Mr Przybylowski's former wife in relation to what is described as her "request for lifetime spousal maintenance made in 2014" (AS at 3). 24 The application for an adjournment was opposed by the second respondent, the Commonwealth Attorney-General. 25 I dismissed the adjournment application at the hearing and explained that I would include reasons for so holding in my reasons for judgment on the application for leave to appeal. Below I have set out my reasons for so ruling. 26 First, Mr Przybylowski apparently made his application to a Polish court at some time in January 2022 after the Commission made its decision on 14 January 2021 refusing to "reopen" the issues determined in the 2014 SSAT decision. As the application to the Polish court postdates the Commission's decision, it could not bear upon the question of whether the Commission had fallen into error and therefore whether the primary judge erred in rejecting the application for judicial review. Nor for the same reason could the eventual outcome of proceedings before the Polish court have any bearing on whether or not the Commission or the primary judge fell into error. 27 Secondly, the orders sought by Mr Przybylowski would effectively adjourn the hearing for an indefinite period of time, particularly where Mr Przybylowski was unable to indicate when the Polish court would make its order. 28 Thirdly, the suggestion that this Court lacks jurisdiction pending the resolution of the proceeding in Poland is completely misconceived. This Court plainly has jurisdiction to entertain the application for leave to appeal under s 24(1)(a) of the Federal Court of Australia Act 1976 (Cth) (FCA Act). The existence of proceedings abroad is irrelevant to the question of whether the Court has jurisdiction. 29 In those circumstances I considered that it would not be in the interests of justice to grant the adjournment, having regard in particular to the overarching purpose identified in s 37M(1) of the FCA Act, being, relevantly, "to facilitate the just resolution of disputes … as quickly, inexpensively and efficiently as possible". 5. RELEVANT PRNCIPLES: APPLICATION FOR LEAVE TO APPEAL 30 As an order pursuant to r 26.01 of the FCR summarily dismissing an application is an interlocutory order, Mr Przybylowski requires leave to appeal pursuant to s 24(1A) of the FCA Act: Fokas v Mansfield as Trustee of the Bankrupt Estate of Maria Fokas (No 2) [2020] FCA 30 at [29] (Wheelahan J) and the authorities cited therein. 31 The power to grant leave to appeal is discretionary and relevant factors include whether in all of the circumstances the decision is attended with sufficient doubt to justify its reconsideration on appeal and whether substantial injustice would result if leave were refused: Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225 at [29] (McHugh, Kirby and Callinan JJ); Décor Corp Pty Ltd v Dart Industries Inc [1991] FCA 844; (1991) 33 FCR 397 at 398–9 (the Court). 6. CONSIDERATION 32 Mr Przybylowski identifies three grounds in his application for leave to appeal (AB409), namely: (1) jurisdictional error; (2) breach of natural justice; and (3) breach of procedural fairness. 33 Mr Przybylowski clarified at the hearing that these errors were allegedly made by the primary judge (T7.46–8.2; T16.5–17.30). However, Mr Przybylowski's oral submissions focused upon challenging the correctness of the 2014 SSAT decision, despite it being made clear that his focus should be upon the grounds on which he seeks to appeal from the decision of the primary judge. 34 The Attorney-General submitted that leave should be refused on the basis that none of the grounds in the application have any merit. I agree. None of these grounds are particularised in the application (AB409). This is sufficient in itself to dismiss the application for leave to appeal: FEY17 at [90] (Greenwood J); WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35] (Gilmour J); WZATH v Minister for Immigration and Border Protection [2014] FCCA 612 at [60] (Judge Lucev) (upheld in WZATH v Minister for Immigration and Border Protection [2014] FCA 969). Nor does the affidavit on which Mr Przybylowski relies in support of his application for leave to appeal, or the affidavits subsequently filed by him, identify any error in the decision of the primary judge. 35 Further and in any event, the decision below is not attended by any doubt about its correctness and substantial injustice would not therefore result if leave to appeal is refused. 36 First, as this is an application for leave to appeal from a decision of the primary judge, it is incumbent upon Mr Przybylowski to demonstrate arguable error in the primary judge's decision. However, none of the documents filed by Mr Przybylowski in support of his application for leave to appeal address the central question of whether the primary judge fell into error. While Mr Przybylowski clarified at the hearing that the primary judge herself made a jurisdictional error, he provided no further submissions in support of that ground of appeal (T16.47–T17.16). Rather, as earlier explained, his submissions attempt to take issue with the correctness of the 2014 SSAT decision and to deal with related aspects of his maintenance dispute. As such, Mr Przybylowski has not identified any arguable jurisdictional (or other) error in the decision of the primary judge. 37 Nor is any arguable error apparent in the decision of the primary judge. As the Attorney-General submits, in dismissing Mr Przybylowski's application for judicial review, it is plain that the primary judge did not act outside the Court's jurisdiction, or do anything which she was not authorised to do. As such, this ground must fail. 38 Secondly, as there is no relevant distinction between a breach of natural justice and a breach of procedural fairness, grounds 2 and 3 fall to be considered together. However, there is nothing indicating that there was any breach of procedural fairness at the hearing before the primary judge. Under the timetabling orders made below, Mr Przybylowski was afforded, and took advantage of, the opportunity to provide written submissions and evidence in support of his application after receiving the Attorney-General's submissions, which were filed at the same time as the Attorney-General's application for summary dismissal. Mr Przybylowski also represented himself at the hearing and made submissions with the assistance of an interpreter. As a result, Mr Przybylowski was appraised of the relevant issues raised by the Attorney-General's summary dismissal application and was afforded an opportunity to respond in writing and at the hearing. It follows that no breach of procedural fairness by the Court has been established. 39 Thirdly, as the Attorney-General submits, there is no error apparent in the primary judge's finding that Mr Przybylowski was afforded procedural fairness by the delegate in light of the natural justice letter advising Mr Przybylowski of the delegate's concerns about his application and the opportunity he was given to respond. Further, no error is demonstrated in the primary judge's finding that: 39. … Although the delegate wrote to Mr Przybylowski on 21 December 2020 to advise Mr Przybylowski that the Commission did not require any further information from him, this was simply acknowledging that he had commented on the matters raised in the natural justice letter and that the Commission was in a position to make its decision on the material which it had. 40 The delegate proceeded to make her decision on 14 January 2021. Mr Przybylowski continued to correspond with the Commission about the translation of the Polish documents but at no stage did he indicate that he intended providing any further response to the natural justice letter (rather his email of 18 December 2020 and letter dated 17 December 2020 proceeded on the basis that it was his entire response). For instance, Mr Przybylowski's letter of 17 December 2020 (which appears to be erroneously dated in the year 2000) notes in the subject line that it is the "complainant response to the AHRC Assessment dated 17 December 2020". In further email correspondence sent on 18 December 2020, Mr Przybylowski also sought confirmation from the Commission that they have received his "complainant response" being the letter of 17 December 2020 and its attachments. 40 Fourthly, with respect to Mr Przybylowski's application to the Polish Court made sometime in January 2022, the Attorney-General correctly submitted that this material was irrelevant and could not establish error in the delegate's decision or that of the primary judge. This is because the material in question was not before the delegate and indeed post-dates the delegate's decision, which was given on 14 January 2021. Similarly, in Bibawi v Australian Human Rights Commission [2021] FCA 1476, Greenwood J found at [77] that the material provided by the applicant which post-dated the decision under review was not relevant in identifying any error in the decision in question. An appeal against Justice Greenwood's decision in Bibawi was summarily dismissed in Bibawi v Australian Human Rights Commission [2022] FCA 607 (see especially at [37]–[38] (Rangiah J)); see also Bibawi v Australian Human Rights Commission & Anor [2022] HCASL 150 dismissing the application for special leave to appeal to the High Court. 41 In a similar vein, the applicant's reference to a breach of article 2 of the "Framework Agreement" (AS [14]) (which is presumably a reference to the Framework Agreement between the European Union and its Member States, of the one part, and Australia, of the other part, is irrelevant to the application for leave to appeal. As the second respondent submitted, there was no reference by the applicant to the Framework Agreement in the material before the delegate. Further, international conventions do not give rise to any rights, obligations or liabilities enforceable under Australian law unless enacted as a law of the Commonwealth Parliament: Minister of State for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 at 286–7 (Mason CJ and Deane J). The Framework Agreement had not yet entered into force at the time of the delegate's decision or the decision of the primary judge, and is not an international instrument that has been incorporated by the AHRC Act or otherwise into Australian law. Article 2 of the Framework Agreement therefore does not give rise to any directly enforceable right or obligation relevant to Mr Przybylowski's application. 7. CONCLUSION 42 It follows that the applicant's un-particularised grounds of appeal would have no prospects of success if leave to appeal were granted. Nor is there any apparent basis on which to doubt the correctness of the carefully reasoned judgment of the primary judge. 43 It follows for these reasons that the application for leave to appeal the decision of the primary judge is hopeless and should be refused with costs. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Perry. Associate: Dated: 21 October 2022