Case: Lawrance v Commonwealth [2007] FCA 1524
Outcome: cited
Some of these grounds, although not all, it should be noted, have been previously considered in this Court. Thus in Lawrance v Commonwealth [2007] FCA 1524 leave to appeal was sought in respect to a refusal to join the Guardianship Tribunal and to challenge rulings as to the admissibility of evidence. Leave to appeal was refused. In refusing leave, Buchanan J conducted a detailed review of the proceedings to date and concluded in part as follows: [2] ... In any event she has not made out a sufficient case of arguable error with respect to any of the rulings which she desires to challenge if leave to appeal is given. ... [57] It will be seen that one basis for refusing leave to amend the application (or to join the Guardianship Tribunal) was that such matters are beyond the jurisdiction of the FMCA by reason of s 46PO of the HREOC Act. Another was that there was no material to suggest the existence of orders or instruments of the kind which Ms Lawrance sought to have revoked. Nothing has been advanced in support of the application for leave to appeal which satisfactorily addresses the foundation for these rulings or calls their correctness into question. At the hearing before me Ms Lawrance confirmed that the Guardianship Tribunal was not referred to anywhere in the material she put before HREOC in connection with her terminated complaint and she did not know of the existence of any orders by the Guardianship Tribunal relating to her or whether the Guardianship Tribunal had given any consideration at any time to her circumstances. Her desire to seek any relief against the Guardianship Tribunal, or in relation to its orders, must be seen as speculative and clearly outside the scope of her terminated complaint. There is no prospect an appeal in relation to this issue could succeed. ... [63] The Federal Magistrate also excluded details of the conduct of numerous persons other than the personal respondents relating to matters which he had earlier ruled, on 17 November 2006 ( Lawrance v Commonwealth of Australia &amp; Ors [2006] FMCA 1792) , were outside the scope of the matters before him and outside the scope of the FMCA's jurisdiction as granted by s 46PO of the HREOC Act. He stated that '[t]he applicant's evidence of these matters is therefore irrelevant and inadmissible insofar as she continues to pursue complaints which I had found not to be within jurisdiction'. He indicated that he would have excluded the evidence upon discretionary grounds in any event. [64] No matter of any substance has been advanced in support of the application for leave to appeal so far as those rulings are concerned. That circumstance alone dictates rejection of the application so far as it concerns rulings on evidence. There are other obstacles also. No submission has been advanced by the Respondents that the further pursuit of those issues which have been previously considered by Buchanan J amounts to an abuse of process. But it is considered that no reason has now been advanced by Ms Lawrance to reach any different conclusion to that reached by Buchanan J. The one reason advanced by Ms Lawrance as to why weight should not be given to the conclusions of Buchanan J was the contention that before his Honour the question as to whether there had been an error in the identification of the ambit of the complaint was not put in issue. This was one of the " fundamental questions of law " which it is contended was resolved erroneously by the Federal Magistrate. 29 Insofar as Ms Lawrance contends that her Grounds of Appeal raise fundamental questions of law, she contends that the Federal Magistrate erred in both: (i) the manner in which his Honour resolved the subject of the complaint made to the Commission, that error being as to the persons the subject of complaint and the period of time during which the conduct complained of occurred; and (ii) " describing the comparator for the purposes of the Disability Discrimination Act 1992 as 'any unimpaired litigant' ". The former error, she contended, underlay the Federal Magistrate's rulings ( inter alia ) as to discovery and admissibility of evidence. 30 Such Grounds of Appeal as seek to raise these contentions, it is considered, do not have any real prospects of success. 31 The relevance of identifying the subject matter of the complaint as made to the Commission arises by reason of the fact that s 46PO(1) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) confers an entitlement to make an application to this Court and the fact that s 46PO(3) confines any such application to the same conduct as was the subject of complaint. Those subsections provide as follows: Application to court if complaint is terminated (1) If: (a) a complaint has been terminated by the President under section 46PE or 46PH ; and (b) the President has given a notice to any person under subsection 46PH(2) in relation to the termination; any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Magistrates Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint. ... (3) The unlawful discrimination alleged in the application: (a) must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or (b) must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint. 32 The Federal Magistrate in the present appeal relevantly concluded: [2] The Court's jurisdiction in discrimination matters is confined by s.46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) to the ambit of a complaint which was terminated by the President of the Commission, and to the respondents to the complaint. In the present matter, I decided at an interlocutory stage that Ms Lawrance's application did not encompass complaints against persons other than the present respondents, nor against government agencies except to the extent that the conduct of the personal respondents in 2005 and 2006 was alleged to have evidenced and formed part of a programme or policy directed at her by Commonwealth and State agencies... 33 Any Ground of Appeal seeking to challenge this ruling and this conclusion has little, if any, prospects of success. It may be accepted that a complaint as made to the Commission is not to be construed as though it were in any manner analogous to a pleading. Even approaching the complaint as made to the Commission in as flexible a manner as possible, it is considered that it would be difficult to reach any conclusion other than that reached by the Federal Magistrate. Ms Lawrance clearly and unambiguously identified the persons against whom the complaint was being made and the period of time during which the conduct complained of was said to have occurred. Her letter of complaint to the Commission dated 21 April 2006 thus stated in part as follows: The respondents to this complaint are Andras Markus, of the Australian Government Solicitor, and the following Federal Court staff: Michael Wall, Gerard English, Juliet Curtin, Kim Lackenby, Michael Packer and John Petkovshek ... I wish to add a further respondent, the State of New South Wales ... The conduct of which I complain began fairly soon after I filed a Notice of Appeal in NSD 1148 of 2004 in the Federal Court ... The conduct that I have been exposed to since 2005 has been unmistakeably aimed at me, and impossible to not notice ...