Chawk v Callan

Case [2025] FCA 290

FEDERAL COURT OF AUSTRALIA

Chawk v Callan [2025] FCA 290

Appeal from: Application for an extension of time to appeal from Callan v Chawk [2023] FCA 898 and Callan v Chawk (Costs) [2023] FCA 1198
File number: VID 21 of 2025
Judgment of: ROFE J
Date of judgment: 31 March 2025
Catchwords: PRACTICE AND PROCEDURE – application for extension of time to institute appeal proceedings – where the applicant had previously instituted appeal proceeding which was subsequently dismissed due to failure to provide security for costs – where the first appeal proceedings were dismissed on procedural grounds rather than on the merits – whether granting of an extension to time would circumvent the principle of finality of litigation – whether the respondent would face undue prejudice if extension is granted – where the applicant faces bankruptcy on the back of the judgment debt – whether any prejudice to applicant if extension is not granted – application dismissed
Legislation:

Federal Court of Australia Act 1976 (Cth)

Federal Court Rules 2011 (Cth)

Defamation Amendment Act 2020 (NSW)

Defamation Act 2005 (NSW)
Cases cited:

Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 62 ALR 53

Callan v Chawk [2023] FCA 898

Callan v Chawk (Costs) [2023] FCA 1198

Chawk v Callan [2024] FCA 92

Chen v Monash University (2016) 244 FCR 424

Christian v Société Des Produits Nestlé SA [2015] FCA 1341

Christodoulou v Disney Enterprises Inc (2006) 156 FCR 369

Ferella v Otvosi (2005) 63 NSWLR 523

Flight Centre Limited v Australian Competition and Consumer Commission [2014] FCA 658

Fox v Percy (2003) 214 CLR 118

Kairouz v Jasper Nominees Limited [2024] VSCA 68

Kostov v Nationwide News Pty Ltd (2018) 97 NSWLR 1073

Kostov v Nationwide News Pty Ltd [2019] NSWCA 84

Mark Foys v TVSN (Pacific) Limited [2000] FCA 1417

Quach v RU [2024] FCAFC 32

Skinner v Commonwealth of Australia [2012] FCA 1194

Thornton v Telegraph Media Group Pty Ltd [2011] 1 WLR 1985
Division: General Division
Registry: Victoria
National Practice Area: Other Federal Jurisdiction
Number of paragraphs: 69
Date of last submissions: Applicant: 6 March 2025
Respondent: 12 March 2025
Date of hearing: 14 March 2025
Counsel for the Applicant: M Clarke KC with L Collaris
Solicitor for the Applicant: Asia Pacific Solutions Group
Counsel for the Respondent: N Olson
Solicitor for the Respondent: Giles George

ORDERS

VID 21 of 2025
BETWEEN:

ZACHARIAH CHAWK

Applicant
AND:

PETER CALLAN

Respondent

ORDER MADE BY:

ROFE J

DATE OF ORDER:

31 MARCH 2025

THE COURT ORDERS THAT:

1.The application for an extension of time dated 9 January 2025 be dismissed.

2.The applicant pay the respondent’s costs of, and incidental to, this proceeding.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

ROFE J:

1.                 Introduction and background

  1. Before me is an application dated 9 January 2025 (the Application), accompanied by a draft Notice of Appeal (the Proposed Appeal), in which the applicant, Mr Chawk, seeks the…

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Chawk v Callan [2025] FCA 290
Case
[2025] FCA 290
Decision Date

CaseChat Overview and Summary

The parties involved in this case are Mr Chawk and Dr Callan. The dispute arises from Mr Chawk's unsuccessful appeal against Dr Callan and his subsequent application for an extension of time to institute a fresh appeal. The matter was heard in the Federal Court of Australia. The legal issues before the court were whether the applicant was entitled to an extension of time to institute a fresh appeal under Rule 39.03 of the Federal Court Rules 2011 and whether granting such an extension would circumvent the principle of finality of litigation and cause undue prejudice to the respondent. The court held that Rule 39.03 does not apply to enable a person to bring a fresh appeal well out of time, in circumstances where their earlier appeal has been dismissed. The court also considered the discretionary considerations and found that granting the extension would circumvent the principle of finality of litigation and cause undue prejudice to the respondent. Consequently, the court dismissed the application for an extension of time. The court ordered that the applicant pay the respondent's costs of and incidental to this proceeding.

Orders

Orders of the court

1. The application for an extension of time dated 9 January 2025 be dismissed.

2. The applicant pay the respondent’s costs of, and incidental to, this proceeding.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

For efficiency, I will not restate the relevant factual background surrounding these matters, as it is assumed that the reader is familiar with the Primary Judgment, Costs Judgment and Security Judgment. Instead, I will proceed directly to an assessment of the Application.2. Evidence Mr Chawk relied on his two affidavits of 8 October 2024 (Chawk No. 1) and 9 January 2025 (Chawk No. 2). Dr Callan relied on the affidavit of his solicitor, Ms Bronte Callaghan of Giles George, dated 12 March 2025 (Callaghan). Neither Mr Chawk nor Ms Callaghan was called for cross examination.3. Application to commence fresh appeal under r 39.03 Rule 39.03 of the Rules provides the following:39.03 Dismissal of proceedings and stay of further proceedings (1)If the Court makes an order dismissing a proceeding or part of a proceeding, the applicant may apply to the Court:(a)for an order that the dismissal be without prejudice to any right of the applicant to bring fresh proceedings; or (b)for leave to claim the same relief in a new proceeding.(2) If:(a)a proceeding has been dismissed in whole or in part; and (b)the Court has ordered the applicant to pay another party’s (the second party’s) costs;the second party may apply to the Court for an order staying any further proceedings brought by the applicant against the second party on the same or substantially the same cause of action or relief, until the costs have been paid.(Emphasis added.) Mr Chawk contends that r 39.03(1)(b) of the Rules permits him to seek leave to institute a fresh appeal in circumstances where the First Appeal was dismissed solely due to non-compliance with procedural orders, rather than on its merits. In support of this argument, he relies on Ferella v Otvosi (2005) 63 NSWLR 523 at [11]–[12] (per Hamilton J), a case dealing with the dismissal of a proceeding in the New South Wales Supreme Court’s original jurisdiction, for the proposition that a clear distinction must be drawn between dismissal on merits and dismissal for non-compliance with the Rules. Mr Chawk maintains that his attempt to renew his appeal does not violate the principle of finality, as the dismissal of the First Appeal occurred at the outset of the proceeding, before any substantive steps were taken. In this regard, Mr Chawk refers to the observations of Flick J in Skinner v Commonwealth of Australia [2012] FCA 1194. Justice Flick’s comments were made in the context where his Honour had rejected an application for an extension of time for compliance with an order and dismissed the proceedings, without prejudice to any right to bring fresh proceedings. The applicant there sought an order pursuant to r 39.03 of the Rules permitting her to file fresh non-appellate proceedings, to which his Honour remarked the following at [44]:The discretion conferred by r 39.03(1) is not confined by criteria which are expressly stated. It is a discretion, it is considered, which should be exercised by reference primarily to the competing rights of the parties. In circumstances where the dismissal of a proceeding occurs at the outset and in advance of any defence or any other step in the proceeding having been taken, it may be difficult for a respondent to point to any prejudice which would preclude the discretion being exercised in the applicant’s favour. Indeed, it may well be the case that in such circumstances irrevocable prejudice would be occasioned to an applicant if an order were not made permitting him to “bring fresh proceedings”.

Decision

Reasons for decision

On 16 February 2024, I delivered reasons for my determination, Chawk v Callan [2024] FCA 92 (the Security Judgment), in which I ordered, inter alia, that Mr Chawk provide security for costs in the amount of $50,000 before the appeal could proceed any further. The order required payment within 42 days and included a self-executing provision. Failure to provide security within the time ordered would result in the dismissal of the appeal. Mr Chawk did not pay the security within the time ordered and the First Appeal was dismissed pursuant to s 56(4) of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act) and r 36.09(1)(c) of the Rules on 3 April 2024 (the Dismissal Order). Mr Chawk has recently obtained the security amount and now seeks the following orders:(a)leave under r 39.03(2)(b) of the Rules to file the Proposed Appeal; and(b)an extension of time under r 36.05 to file the Proposed Appeal. Mr Chawk does not seek to set aside the dismissal of the First Appeal, nor an extension of time in which to pay the security ordered. For efficiency, I will not restate the relevant factual background surrounding these matters, as it is assumed that the reader is familiar with the Primary Judgment, Costs Judgment and Security Judgment. Instead, I will proceed directly to an assessment of the Application.2. Evidence Mr Chawk relied on his two affidavits of 8 October 2024 (Chawk No. 1) and 9 January 2025 (Chawk No. 2). Dr Callan relied on the affidavit of his solicitor, Ms Bronte Callaghan of Giles George, dated 12 March 2025 (Callaghan). Neither Mr Chawk nor Ms Callaghan was called for cross examination.3. Application to commence fresh appeal under r 39.03 Rule 39.03 of the Rules provides the following:39.03 Dismissal of proceedings and stay of further proceedings (1)If the Court makes an order dismissing a proceeding or part of a proceeding, the applicant may apply to the Court:(a)for an order that the dismissal be without prejudice to any right of the applicant to bring fresh proceedings; or (b)for leave to claim the same relief in a new proceeding.(2) If:(a)a proceeding has been dismissed in whole or in part; and (b)the Court has ordered the applicant to pay another party’s (the second party’s) costs;the second party may apply to the Court for an order staying any further proceedings brought by the applicant against the second party on the same or substantially the same cause of action or relief, until the costs have been paid.(Emphasis added.) Mr Chawk contends that r 39.03(1)(b) of the Rules permits him to seek leave to institute a fresh appeal in circumstances where the First Appeal was dismissed solely due to non-compliance with procedural orders, rather than on its merits. In support of this argument, he relies on Ferella v Otvosi (2005) 63 NSWLR 523 at [11]–[12] (per Hamilton J), a case dealing with the dismissal of a proceeding in the New South Wales Supreme Court’s original jurisdiction, for the proposition that a clear distinction must be drawn between dismissal on merits and dismissal for non-compliance with the Rules. Mr Chawk maintains that his attempt to renew his appeal does not violate the principle of finality, as the dismissal of the First Appeal occurred at the outset of the proceeding, before any substantive steps were taken.

Ratio Decidendi

Legal Principle Established

Furthermore, Dr Callan submits that even if r 39.03 were to confer power to grant leave for a fresh appeal, he argues that such an order should not be made in this case, as it would cause substantial prejudice against to him. Mr Chawk’s undertaking to pay security for the appeal costs does not, in Dr Callan’s view, mitigate this prejudice.3.1 Consideration In my view, r 39.03 does not apply to enable a person to bring a fresh appeal well out of time, in circumstances where their earlier appeal has been dismissed. Whilst s 4 of the Federal Court Act defines the term “proceeding” as including an appeal, the wording of r 39.03 is not apt for appeals. In relation to the Former Rule, which employed very similar wording, Conti J in Mark Foys observed at [5]–[6] that:It does not seem to me that this rule could apply in relation to an appeal such as in the circumstances here involved, at least for the following reasons: Firstly it is an inapposite use of language to describe an appeal as a proceeding brought on a cause of action. An appeal constitutes a proceeding to review a decision which is concluded based on a cause of action.Secondly, the relief sought in a proceeding at first instance relates to a cause of action which may result in an order for an injunction or damages or simply a declaration. Whereas by way of contrast the relief sought in a proceeding in relation to an appeal is the setting aside of a judgment at first instance in which a cause of action has merged. It is, as I have said before, inapposite to speak of an appeal as seeking relief on a cause of action. In my view, Conti J’s reasoning above can aptly be applied to the rule in its current form. Rule 39.03(1)(b) refers to the applicant seeking leave to “claim the same relief” in a new proceeding. The reference to a claim for relief is inapposite to describe the result sought by an appellant: the setting aside of the orders made by the primary judge. Skinner and Ferella, the two authorities upon which Mr Chawk relies, involved dismissals of proceedings in the original jurisdiction of the respective Courts, not appellate proceedings. Rule 39.03 is located in Chapter 5 of the Rules — which deals with judgments, costs and other general provisions — rather than Chapter 4, which covers appeals. This further supports my conclusion that r 39.03 does not apply to a putative appellant seeking to file a fresh appeal well out of time. Moreover, the Court retains a discretion as to whether to make the orders sought. The discretion is not confined by criteria which are expressly stated. In considering whether to exercise the discretion, the Court should have reference primarily to the competing rights of the parties: Skinner at [44] (per Flick J). I discuss relevant discretionary considerations below in the context of the second aspect of the application, the extension of time to file the Proposed Appeal. Even if r 39.03 did apply to allow the filing of fresh appeals, for the reasons discussed in the next section, I would not exercise my discretion to allow Mr Chawk to file a fresh appeal under r 39.03.4. Application for extension of time