Coady & Anor v Justice Moshinsky & Ors

[2023] HCATrans 55

[2023] HCATrans 055

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M14 of 2023

B e t w e e n -

STEPHANIE ALANNAH COADY

First Plaintiff

PAUL PHILIP COADY

Second Plaintiff

and

THE HONOURABLE JUSTICE MARK MOSHINSKY

First Defendant

THE HONOURABLE CHIEF JUDGE WILLIAM ALSTERGREN

Second Defendant

YACHTING VICTORIA INCORPORATED

Third Defendant

GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 10 MAY 2023, AT 9.30 AM

Copyright in the High Court of Australia

____________________

HER HONOUR:   By an application for constitutional writ or other writs filed on 17 February 2023, the plaintiffs seek orders in the nature of certiorari and mandamus and other relief.  For the reasons that I now publish, I dismiss the application.  I make the following orders: 

1.The application be dismissed under r 25.09.1 of the High Court Rules 2004 (Cth).

2.The plaintiffs pay the third defendant’s costs.

I publish those orders, and I direct that the reasons as published be incorporated into the transcript.

On 17 February 2023, the plaintiffs, Stephanie Alannah Coady and her father, Paul Coady, filed an application for constitutional or other writs in the original jurisdiction of this Court.  By that application, the Coadys seek relief in respect of a decision by a judge of the Federal Court of Australia (Moshinsky J) dated 19 December 2022 refusing Ms Coady’s application for an extension of time to appeal from a decision of a judge of the then Federal Circuit Court of Australia (Judge Mercuri) delivered on 2 August 2019[1].  Judge Mercuri had dismissed Ms Coady’s claim that the third defendant (“Yachting Victoria”) breached various provisions of the Sex Discrimination Act 1984 (Cth) (“the SDA”) during the course of the 2014 Sailing World Cup Melbourne Regatta (“the regatta”).

[1].    Coady v Yachting Victoria Inc [2019] FCCA 2095.

The Coadys seek a writ of certiorari quashing Moshinsky J’s decision; a writ of mandamus directing his Honour to determine the application to the Federal Court according to law; a writ of mandamus directed to the second defendant, Chief Judge Alstergren of the Federal Circuit and Family Court of Australia, to “disclose all previous involvement in this matter and, [sic] any socialising or communication with witnesses or other parties involved in this matter”; and a declaration that “the process for disqualification of a judge detailed in the Guide to

Judicial Conduct^[[2]] ... is in violation of Article 14(1) of the International Covenant on Civil and Political Rights” (“the ICCPR”).

[2].    Australasian Institute of Judicial Administration, Guide to Judicial Conduct, 3rd ed (2017).  I note that a revised version of that Guide was published in 2022.

For the following reasons, the application discloses no arguable basis for the relief sought.  Accordingly, the application will be dismissed[3].

[3].    High Court Rules 2004 (Cth), r 25.09.1.

The regatta and the proceedings below

On 8 December 2014, the Coadys participated in three races in the 49ers Olympic class event.  The following day, they were approached by an organiser of the regatta who said that they were in violation of Olympic gender rules limiting participation in the 49ers event to men only, and that they were not permitted to race.  Mr Coady asked the organiser to submit a protest, but it seems that no protest was lodged by the time the next race was due to commence.  The Coadys completed three more races and returned to shore.  At the end of the day, another organiser telephoned Mr Coady to inform him that a protest had been lodged.  After a protest meeting held that evening, the Coadys’ sail number was disqualified from that day’s races.

In the Federal Circuit Court, Ms Coady claimed that Yachting Victoria had unlawfully discriminated against her on the basis of her sex in its provision of services by reason of rules limiting participation in the event to men only. Judge Mercuri rejected Ms Coady’s claim. While her Honour found that Yachting Victoria could be taken to have provided “services” within the meaning of the SDA in facilitating participation in the regatta by competitors and spectators[4], her Honour concluded that there was no discrimination in providing those services, because Ms Coady suffered no less favourable treatment than the comparator, being a man who had, notwithstanding the clear gender rules for participation in Olympic class events, sought to enter and compete in the equivalent female Olympic class event[5]. Judge Mercuri considered in the alternative that, even if Yachting Victoria had engaged in what would otherwise be discrimination, then it could rely on the exemption in s 42 of the SDA, on the basis that strength, stamina and physique were relevant to elite competition sailing[6].

[4].    Coady [2019] FCCA 2095 at [155]-[161].

[5].    Coady [2019] FCCA 2095 at [162]-[171].

[6].    Coady [2019] FCCA 2095 at [172]-[187].

On 12 August 2022, Ms Coady filed her application for an extension of time to appeal from Judge Mercuri’s decision[7], almost three years out of time.  Ms Coady raised two proposed appeal grounds: that new information had come to light regarding the identity of the point scorer of the regatta and that, had the scorer’s identity been known at the time of the Federal Circuit Court proceeding, it would have been possible to ascertain further evidence relating to the conduct said to constitute the unlawful discrimination; and that Judge Mercuri’s judgment was affected by actual or apprehended bias of the kind contemplated in Charisteas v Charisteas[8] because of Chief Judge Alstergren’s involvement in sports bodies, including Olympic sports bodies.

[7].    Pursuant to Federal Court Rules 2011 (Cth), r 36.05(1).

[8]. (2021) 273 CLR 289.

Moshinsky J dismissed the application, concluding that neither proposed ground had sufficient prospects of success, and that Ms Coady had failed to provide an adequate explanation for the lengthy delay in bringing the application.

The present application

A decision of a single judge of the Federal Court to refuse to extend time to appeal cannot be the subject of an application for special leave to appeal to this Court[9].  That being so, the Coadys apply instead for constitutional writs and associated relief.

[9]. Federal Court of Australia Act 1976 (Cth), s 33(4B)(d)(iv), read with s 25(2)(b).

The first and second defendants have filed submitting appearances.  Yachting Victoria filed a response to the application on 23 March 2023, and the Coadys filed a reply to that response on 28 March 2023.  In their reply, the Coadys raise several procedural issues with Yachting Victoria’s response relating to filing requirements stipulated by the High Court Rules 2004 (Cth). This application can be dealt with without recourse to Yachting Victoria’s response, and so it is unnecessary to address the Coadys’ submissions on those issues.

Consideration

Relief directed to the judgment of Moshinsky J

The Coadys allege three categories of error in Moshinsky J’s application of the principles relating to granting an extension of time.  The first category concerns Moshinsky J’s alleged failure to engage with Ms Coady’s claims relating to art 14(1) of the ICCPR in assessing the merits of the proposed appeal.  The second category of alleged error concerns his Honour’s assessment of the reasons for Ms Coady’s delay in bringing the application for an extension of time, including as balanced against any prejudice to the defendants in granting the extension, and the fact of Ms Coady being unrepresented at various stages of the proceedings.  The final category of alleged error concerned an alleged failure to consider the impact of Ms Coady’s case on “all Olympic athletes”.

Writs of certiorari and mandamus are available in certain circumstances to correct jurisdictional error by a judge of the Federal Court, being an “officer of the Commonwealth” within the meaning of s 75(v) of the Constitution[10].  However, none of the Coadys’ complaints about Moshinsky J’s decision amounts to an allegation of jurisdictional error by his Honour.  More specifically, there is nothing to support a conclusion that Moshinsky J misconceived the nature of the function he was exercising in refusing the application for an extension of time, or that he failed to exercise his jurisdiction, or otherwise committed any jurisdictional error in dismissing Ms Coady’s application.  Instead, the alleged errors simply attempt to reagitate the issues raised before Moshinsky J.  Accordingly, this aspect of the Coadys’ application is doomed to fail.

[10].    Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372 at 393 [19], 399 [40], 411 [84], 438 [168], 465-466 [261]-[264], 475 [293]; Edwards v Santos Ltd (2011) 242 CLR 421.

Relief directed to Chief Judge Alstergren

The plaintiffs allege that Judge Mercuri’s decision was affected by apprehended bias caused by Chief Judge Alstergren’s failure to discharge a “duty to disclose” his association with sports bodies, including Olympic sports bodies.  Chief Judge Alstergren has not presided over any stage of these proceedings, and was not a party to any of the proceedings below.  There is no authority to support extending the principles of apprehended bias in such a manner.  This claim for constitutional relief is baseless.

Declaratory relief

Finally, the Coadys seek a bare and abstract declaration with respect to the process for judicial disqualification which would produce no foreseeable consequences for them[11], in circumstances where Chief Judge Alstergren was not the decision maker capable of disqualification under that procedure at any stage of the proceedings.  Again, the claim for constitutional relief is baseless.

[11].    Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319 at 359-360 [101]-[104].

Conclusion

It follows that the application discloses no arguable basis for any of the relief sought.  It is therefore not necessary to address issues concerning the proper parties to this proceeding, including Mr Coady’s standing in circumstances where he was not a party to the proceeding in the Federal Court, and the inclusion of Chief Judge Alstergren as a defendant.

Under r 25.09.1 of the High Court Rules 2004 (Cth), I order that the application be dismissed without listing it for a hearing. The plaintiffs should pay the costs of the third defendant.

Adjourn the Court, please.

AT 9.30 AM THE MATTER WAS CONCLUDED