Date of Judgment: 24 May 2024 - [2024] HCASJ 20

HIGH COURT OF AUSTRALIA
BEECH-JONES J
QIZHI CHEN PLAINTIFF
AND
A JUDGE OF THE FEDERAL COURT OF AUSTRALIA & ORS DEFENDANTS
[2024] HCASJ 20
Date of Judgment: 24 May 2024
M3 of 2024
ORDER
1.The application is dismissed without a hearing.

Representation
The plaintiff is unrepresented
The first defendant is unrepresented
The second, third and fourth defendants are represented by Clayton Utz Lawyers

BEECH-JONES J. On 9 January 2024, the plaintiff, Qizhi Chen, filed an application in this Court seeking certiorari in respect of the decision and orders of McEvoy J given on 20 December 2023[1] refusing her an extension of time within which to seek leave to appeal from orders made by North J on 3 June 2016.[2] North J summarily dismissed proceedings commenced by the plaintiff seeking the reinstatement of her employment with the second defendant, Monash University.[3] The plaintiff also seeks the issue of a writ of mandamus commanding the Federal Court of Australia to hear an appeal from McEvoy J's decision.
[1]Chen v Birbilis [2023] FCA 1644.
[2]Chen v Birbilis [2016] FCA 661.
[3]Chen v Birbilis [2016] FCA 661 at [2]-[3], [19]-[20].
Rule 25.09.1 of the High Court Rules 2004 (Cth) provides that the Court or a Justice may dismiss an application for a constitutional or other writ, without listing it for hearing, on the ground that "the application does not disclose an arguable basis for the relief sought or is an abuse of the process of the Court". For the reasons that follow, the application and the materials filed in support do not disclose an arguable basis for the relief sought. The application is also an abuse of process. The application should be dismissed without a hearing.
Background - other proceedings
On 27 February 2015, Tracey J dismissed proceedings brought by the plaintiff against the second to fourth defendants, namely Monash University and two staff members, alleging sex discrimination and sexual harassment in the workplace.[4] The plaintiff filed a notice of appeal from that decision but discontinued the appeal. On 12 May 2016, the Full Court of the Federal Court (Barker, Davies and Markovic JJ) refused an application to reinstate the appeal.[5]
[4]Chen v Monash University [2015] FCA 130.
[5]Chen v Monash University [2016] FCAFC 66.
On 26 April 2022, the plaintiff filed an application in this Court seeking writs of certiorari quashing both of those decisions and other relief directed to the Judges of the Federal Court. Rule 25.02.2(a) of the High Court Rules requires that an application for a writ of certiorari be filed "within 6 months after the day the decision sought to be quashed was made". Rule 4.02 of the High Court Rules enables a Court or a Justice to enlarge that period of time even after it has expired.
On 13 September 2022, Keane J dismissed the plaintiff's application.[6] His Honour refused an extension of time to apply for the writs of certiorari. His Honour found there was "no satisfactory…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] HCASJ 20
Decision Date: 24 May 2024

CaseChat Overview and Summary

The plaintiff, who had previously sought relief from the Federal Court against Monash University and its staff for sex discrimination and sexual harassment, brought an application to the High Court under Rule 25.09.1 of the High Court Rules 2004 (Cth). The plaintiff sought writs of certiorari to quash decisions of the Federal Court and the Full Court of the Federal Court, as well as other relief directed to the Judges of the Federal Court. The primary legal issues the Court had to address were whether the application disclosed an arguable basis for the relief sought and whether the application constituted an abuse of process.

The Court found that the application did not disclose an arguable basis for the relief sought. The plaintiff's claims against the Federal Court and the Full Court of the Federal Court were based on allegations that had already been determined by the Federal Court. The Court was of the view that the plaintiff had not advanced any substantial argument warranting the grant of the writs of certiorari. Moreover, the Court found that the application was an abuse of process due to the lack of a satisfactory explanation for the significant delay in bringing the proceedings and the absence of any substantial argument that would warrant the grant of the writs of certiorari.

In light of the above, the Court dismissed the application without a hearing. The Court's decision was based on the fact that the application did not disclose an arguable basis for the relief sought and was an abuse of process. The Court also noted that the plaintiff had previously sought similar relief in the Federal Court, which was dismissed, and that the plaintiff had not provided any satisfactory explanation for the delay in bringing the current proceedings.

Orders

Orders of the court

1. The application is dismissed without a hearing.

Background

Background to the litigation

Rule 25.09.1 of the High Court Rules 2004 (Cth) provides that the Court or a Justice may dismiss an application for a constitutional or other writ, without listing it for hearing, on the ground that "the application does not disclose an arguable basis for the relief sought or is an abuse of the process of the Court". For the reasons that follow, the application and the materials filed in support do not disclose an arguable basis for the relief sought. The application is also an abuse of process. The application should be dismissed without a hearing. Background - other proceedings On 27 February 2015, Tracey J dismissed proceedings brought by the plaintiff against the second to fourth defendants, namely Monash University and two staff members, alleging sex discrimination and sexual harassment in the workplace.[4] The plaintiff filed a notice of appeal from that decision but discontinued the appeal. On 12 May 2016, the Full Court of the Federal Court (Barker, Davies and Markovic JJ) refused an application to reinstate the appeal.[5] [4]Chen v Monash University [2015] FCA 130.[5]Chen v Monash University [2016] FCAFC 66. On 26 April 2022, the plaintiff filed an application in this Court seeking writs of certiorari quashing both of those decisions and other relief directed to the Judges of the Federal Court. Rule 25.02.2(a) of the High Court Rules requires that an application for a writ of certiorari be filed "within 6 months after the day the decision sought to be quashed was made". Rule 4.02 of the High Court Rules enables a Court or a Justice to enlarge that period of time even after it has expired. On 13 September 2022, Keane J dismissed the plaintiff's application.[6] His Honour refused an extension of time to apply for the writs of certiorari. His Honour found there was "no satisfactory explanation" for the delay in the bringing of the proceedings and no substantial argument was advanced that would warrant a grant of certiorari.[7] His Honour dismissed the balance of the claims for relief as an abuse of process.[8] [6]Chen v A Judge of the Federal Court of Australia (unreported, High Court of Australia, 13 September 2022). [7]Chen v A Judge of the Federal Court of Australia (unreported, High Court of Australia, 13 September 2022) at [9].[8]Chen v A Judge of the Federal Court of Australia (unreported, High Court of Australia, 13 September 2022) at [10]-[11]. On 8 December 2022, Edelman and Gleeson JJ refused an application seeking leave to appeal from Keane J's decision.[9] Their Honours noted that Keane J's decision was "plainly correct".[10] The present proceedings[9]Chen v A Judge of the Federal Court of Australia [2022] HCASL 212. [10]Chen v A Judge of the Federal Court of Australia [2022] HCASL 212 at [2]. In the meantime, on 8 January 2016, the plaintiff filed an application in the Federal Court seeking reinstatement to her position at Monash University. This application was summarily dismissed by North J on the basis that the Federal Court did not have jurisdiction to hear a claim alleging acts of victimisation contrary to s 94 of the Sex Discrimination Act 1984 (Cth)[11] and had no jurisdiction to entertain a claim for reinstatement under the provisions of the Fair Work Act 2009 (Cth) ("the FWA") in the absence of a certificate from the Fair Work Commission issued under s 368(3)(a) of the FWA.[12] [11]Chen v Birbilis [2016] FCA 661 at [11].[12]Chen v Birbilis [2016] FCA 661 at [18].

Evidence

Evidence Before The Court

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Decision

Reasons for decision

BEECH-JONES J

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Ratio Decidendi

Legal Principle Established

Established by: BEECH-JONES J

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