FEDERAL COURT OF AUSTRALIA
Chen v Monash University [2016] FCAFC 66
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Details
- AGLC
- Chen v Monash University [2016] FCAFC 66
- Case
- [2016] FCAFC 66
- Decision Date
CaseChat Overview and Summary
Chen, the appellant, sought to appeal a decision made by the primary judge in the Federal Court of Australia, Monash University, the respondent, opposed the appeal. The primary judge had made orders that Chen pay Monash University an indemnity of costs and a lump sum of $900,000. Chen sought to appeal the decision, however, she filed a notice of discontinuance due to threats to her safety which caused her to leave Australia. Chen sought to reinstate the appeal on the basis of alleged fraud. The central legal issue was whether the Federal Court of Australia has the power to reinstate an appeal after the filing of a notice of discontinuance, and if so, what the bases for such power are.
The Court examined whether the Federal Court of Australia has the inherent jurisdiction to reinstate an appeal after the filing of a notice of discontinuance. The Court found that the Federal Court of Australia does have such inherent jurisdiction, but it must be exercised sparingly and only in exceptional circumstances. The Court considered the relevant factors to be taken into account when exercising the discretion to reinstate an appeal, including the reasons for the discontinuance, the delay in seeking to reinstate the appeal, and the likelihood of success on the merits. The Court concluded that Chen's application to reinstate the appeal was not made in good faith, and therefore, the appeal was dismissed.
The Court dismissed the amended interlocutory application filed by Chen on 26 June 2015. Chen was ordered to pay the respondents' costs, and the respondents were given liberty to apply for a lump sum costs order within 14 days of the date of these orders, as well as for orders in respect of the monies paid by way of security.
The Court examined whether the Federal Court of Australia has the inherent jurisdiction to reinstate an appeal after the filing of a notice of discontinuance. The Court found that the Federal Court of Australia does have such inherent jurisdiction, but it must be exercised sparingly and only in exceptional circumstances. The Court considered the relevant factors to be taken into account when exercising the discretion to reinstate an appeal, including the reasons for the discontinuance, the delay in seeking to reinstate the appeal, and the likelihood of success on the merits. The Court concluded that Chen's application to reinstate the appeal was not made in good faith, and therefore, the appeal was dismissed.
The Court dismissed the amended interlocutory application filed by Chen on 26 June 2015. Chen was ordered to pay the respondents' costs, and the respondents were given liberty to apply for a lump sum costs order within 14 days of the date of these orders, as well as for orders in respect of the monies paid by way of security.
Orders
Orders of the court
1. The amended interlocutory application filed 26 June 2015 is dismissed.
2. The applicant is to pay the respondents’ costs.
3. The respondents be at liberty to apply for a lump sum costs order within 14 days of the date of these orders and for orders in respect of the monies paid by way of security.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
On 5 June 2015 the primary judge made orders and gave judgment in Chen v Monash University (No 2) [2015] FCA 552 (the Costs Decision). The orders included that the applicant pay the respondents’ costs of the proceedings incurred on and after 28 May 2013 on an indemnity basis and that the applicant pay the respondents a lump sum of $900,000 in full satisfaction of the costs orders made in Chen v Monash. On 8 June 2015 the applicant wrote to Mr Nicholas Wallwork of this Court noting that she was preparing to appeal the Costs Decision. In her email, the applicant asked if she could appeal on the papers. The reasons she gave for that were:First, as you will find in the attached Notice of Appeal, the Appeal is a rather simple case.Second, I received three threats to my safety, and because of this I left Australia staying in overseas. Hence, I cannot return to Australia to attend any court events in person at the risk of my safety. On 9 June 2015 Ms Libbesson responded to the applicant’s email addressed to Mr Wallwork. Ms Libbesson informed the applicant that it was possible for her to file Court documents from overseas but that if she proposed to represent herself she would usually be required to attend directions and hearings in person. Ms Libbesson also noted that it would be a matter for the judge or judges managing the matter “whether they would grant you leave to appear by phone or video conferencing and this would usually be at your expense”. Ms Libbesson referred the applicant to a link on the Court website and to r 11.01(1) of the 2011 Rules which requires parties to have an address for service in Australia. Ms Libbesson concluded her email as follows:I strongly urge you to seek legal advice in relation to this matter and any proposed appeal. I particularly suggest you seek legal advice about whether the costs orders made by Tracey J on 5 June 2015 was final or interlocutory in nature, and therefore whether you need to seek leave to appeal (see Rule 35.13 of the Federal Court Rules for the timeframe for filing an application for leave to appeal). On 10 June 2015:(1)at 1.43 am the applicant sent two emails to Ms Libbesson. One of those emails sought information about the status of the First Instance Proceedings on the portal and the second of those emails sought further information about the way in which the applicant could appeal the Costs Decision;(2)at 9.12 am Ms Libbesson responded to the applicant. She once again strongly urged the applicant to seek legal advice and told her that the First Instance Proceedings were closed, that any application for leave to appeal or notice of appeal would be filed as a new matter, with the Court giving the proceedings a new matter number, that the orders made in the Costs Decision were interlocutory and the applicant would require leave to appeal those orders and that it appeared that the applicant had already filed a notice of appeal against the orders made in the First Instance Proceedings and that appeal had been discontinued;(3)at 11.22 am, in response to Ms Libbesson, the applicant sent an email asking Ms Libbesson to whom she “should address if I apply for reopening the discontinued appeal on the ground of fraud”; (4)at 11.59 am the applicant sent an email to the respondents’ solicitors copied to Ms Christie East of the Court which included the word “serve” and attached an interlocutory application dated 10 June 2015 by which the applicant sought orders that the respondents request two media organisations to remove their articles about Chen v Monash from their internet search engines;(5)at 12.31 pm the applicant sent a further email to Ms Libbesson in which she said:My notice of appeal was to appeal both orders and judgment. What I discontinued was the judgment, not the orders, as I proposed consent order my email. I explained that I wanted to make a decision after the cost order is issued. Hence, I request to reopen VID122 for at least appeal from the costs orders.I also with to reopen appeal from the judgment on the ground of fraudulently obtained judgment.What form should I fill?Thanks;(6)at 9.07 pm the applicant sent an email to Ms Libbesson and Mr Wallwork in which she said: “Please advise me whom I should raise the matter with”. Attached to the email were two documents. The first was a letter addressed to the primary judge and the registrar of the Court by which the applicant sought that the primary judge recuse himself from continuing to sit in the First Instance Proceedings and the second was a letter addressed “To whom it may concern” by which the applicant notified that she wished to apply for leave to reopen the Appeal Proceedings. In that letter, the applicant said that the withdrawal of the Appeal Proceedings was caused by threats to her safety which she specified as:(a)an indirect threat to her safety in a letter from the Australian Human Rights Commission (AHRC) dated 27 November 2014 which included the phrase “Monash University terminated you”;(b)on 28 December 2014 she received a DVD that she did not order titled “Maniac Cops 2” with “you have the right to remain silent forever” on the cover of the case; and(c)in February 2015 she received an anonymous letter with a link to the article https//ebosswatch.wordpress.com/2009/10/23/woman-who-filed-sexual-harrassment-lawsuit-killed-in-house-fire/. The applicant said that due to those threats she left Australia in March 2015. After searching for a month she was unable to retain a lawyer and, without a lawyer to represent her, she thought it was not feasible for her to travel back to attend court whilst she was overseas and that her appeal would be dismissed. As a result the applicant said that she withdrew the Appeal Proceedings. The applicant noted that she now understood that she could attend “directing and hearing” of her appeal via telephone.
Ratio Decidendi
Legal Principle Established
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