Dispute Resolution Associates Pty Ltd v Selth (No 2)

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FEDERAL COURT OF AUSTRALIA

Dispute Resolution Associates Pty Ltd v Selth (No 2) [2020] FCA 844

Appeal from: Minus v Selth (No 2) [2017] FCA 1233
File number: NSD 1409 of 2018
Judge: COLLIER J
Date of judgment: 17 June 2020
Catchwords: COSTS – application for extension of time and leave to appeal from dismissal of application for extension of time within which to object to estimate of costs – r 40.20 Federal Court Rules 2011 (Cth) – delay – whether adequate explanation for delay – where applicants claimed facts not within knowledge – where applicants made request for action from Chief Justice and Principal Registrar – where applicants dealing with other proceedings – merits of applications – whether primary decision attended with sufficient doubt to warrant reconsideration – where applicants claimed procedural unfairness – where applicants claimed apprehended bias – where applicants claimed actual bias – where applicants alleged bias because of previous, then-existing and potential future associations between primary Judge and State Bar Association – teaching and professional engagement with Bar Association – whether denial of opportunity to be heard – allegations of bullying and harassment by primary Judge – whether proceedings inappropriately expedited
Legislation:

Corporations Act 2001 (Cth) s 206G

Federal Court of Australia Act1976 (Cth) s 37P

Federal Court Rules 2011 (Cth) rr 1.35, 35.11, 35.14, 36.01, 40.18, 40.19, 40.20, 40.21, 40.32
Cases cited:

AZAEY v Minister for Immigration and Border Protection [2015] FCAFC 193; (2015) FCAFC 193

Bala v Minister for Immigration and Border Protection [2019] FCA 600

Blenkinsop v Wilson [2019] WASC 77

BVG17 v BVH17 (2019) 268 FCR 448; [2019] FCAFC 17

Day v Humphrey [2019] QSC 38

Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCAFC 844; (1991) 33 FCR 397

Dispute Resolution Associates Pty Ltd v Selth [2020] FCA 753

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20

Markan v Bar Association of Queensland [2014] 2 Qd R 273; [2014] QCA 34

Meerabux v Attorney General of Belize [2005] 2 AC 513

Mentink v Minister for Home Affairs [2013] FCAFC 113

Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17

Minus v Selth (No 2) [2017] FCA 1233

Minus v Selth [2016] FCA 834

MZABP v Minister for Immigration and Border Protection (2016) 152 ALD 478; [2016] FCAFC 110

R v Bow Street Metropolitan Stipendiary Magistrate; ex parte Pinochet Ugarte (No 2) [2000] 1 AC 119

Selth v Australasian Barrister Chambers Pty Limited (2015) 243 FCR 423; [2015] FCA 1494

Selth v Australasian Barrister Chambers Pty Ltd (No 5) [2019] FCA 362

Smits v Loel (No 3) [2015] FCA 77

SZVCP v Minister for Immigration and Border Protection [2016] FCAFC 24; (2016) 238 FCR 15
Date of hearing: 4 June 2020
Registry:
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Details
Case
[2020] FCA 844
Decision Date

CaseChat Overview and Summary

In this case, the applicants, Dispute Resolution Associates Pty Ltd and others, sought an extension of time and leave to appeal from the dismissal of their application for an extension of time within which to object to an estimate of costs. The primary decision was made by a Federal Court judge who dismissed the applicants' application for an extension of time in which to object to the Certificate of Taxation. The applicants sought to appeal this decision, but their application for an extension of time and leave to appeal was dismissed by the Full Court. The legal issues that the Full Court was required to decide included whether the applicants had provided an adequate explanation for their delay in filing their application for an extension of time and leave to appeal, and whether the primary decision was attended with sufficient doubt to warrant reconsideration on appeal. The Full Court found that the applicants had not provided a satisfactory explanation for their delay, and that the primary decision was not attended with sufficient doubt to warrant reconsideration on appeal. The Full Court dismissed the applicants' application for an extension of time and leave to appeal, and ordered the parties to provide draft case management orders to the Chambers of Justice Collier in relation to the issue of costs by 4.00 pm on 1 July 2020.

Orders

Orders of the court

1. The application for extension of time and leave to appeal filed on 9 August 2018 be dismissed.

2. The parties provide draft case management orders to the Chambers of Justice Collier in relation to the issue of costs by 4.00 pm on 1 July 2020.

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

Full text does not contain this section.

Decision

Reasons for decision

After hearing the evidence and submissions, the primary Judge made the following Orders:1.The Applicants are to file and serve their written submissions of not more than ten (10) pages, no later than 8 September 2017.2.The Respondents are to file and serve any submissions in reply of not more than ten (10) pages on or before Friday 22 September 2017.3.To the extent that these Directions are at variance with the Directions earlier given, these Directions vary those earlier directions and take precedence.4.Upon the filing of the Respondents submissions in reply or a signification by the Respondents to the Registrar and Applicants in writing that no such submissions are to be filed, judgment shall stand reserved to a date to be fixed in respect of the extension of time application.5. Liberty to apply.6. Costs reserved.The primary decision On 18 October 2017, the primary Judge dismissed the Minus parties’ application for an extension of time in which to object to the Certificate of Taxation, delivering reasons in Minus v Selth (No 2) [2017] FCA 1233. His Honour noted at [17] that “there seems to have been something of a conundrum emerge within the Registry as to how to deal with Mr Minus’ application” to extend the time to object to the Costs Estimate. His Honour continued: 17.… it was decided that the judge concerned ought not to be one assigned to the Court’s New South Wales Registry. That decision was made out of an abundance of caution, given Mr Selth’s hitherto longstanding other role as the Chief Executive of the New South Wales Bar Association and because Mr Minus was a member of the New South Wales Bar. So it was that the application came to be assigned to me for determination. Hs Honour went on:18.Given the hiatus, I considered that the hearing of the application for an extension of time within which to file a notice of objection ought to be expedited. It is fair to say that the degree of expedition initially nonplussed Mr Minus but it proved possible to ameliorate that by an adjournment and provision for the making of supplementary written submissions to be filed and served during a looming period of duty in Papua New Guinea and subsequent leave. In relation to the delay of the Minus parties in objecting to the Costs Estimate, the primary Judge made the following relevant factual findings:·The address of the Minus’ chambers, being suite 602, 67 Castlereagh Street, Sydney NSW 2000, was the address for service for the Minus parties as at 6 December 2016 and 23 January 2017 (at [22], [25] and [28]);·Mr David Henry Sampson of BPS Recovery was appointed as receiver to the property of the corporate entity that owned the offices where Mr Minus maintained his chambers (at [22]);·Mr Sampson changed the locks of those offices on 7 December 2016, preventing Mr Minus from accessing his chambers (at [22]); ·Mr Minus did not explain why, as and from 6 December 2016, he was unaware of the appointment of receiver to the building where his chambers were maintained, or unaware he could no longer access his chambers. In particular, his Honour observed:45.The address for service which the applicants had specified was, as noted, Mr Minus’ chambers address. The receiver was appointed prior to the Summer Law Vacation. In the ordinary course, one might expect that a barrister would, in the ordinary course, attend his or her chambers with some regularity prior to the Summer Law Vacation. Mr Minus’ affidavit is noteworthy for his absence of explanation as to how it was, on and from 6 December 2016, he was unaware, if not of the appointment of a receiver who had consequentially taken possession, at least that he could no longer access his chambers. It seems to me that his affidavit manifests an absence of candour.·It is the responsibility of a party to maintain an up to date address for service (at [30]);·It is not the Registrar’ responsibility to provide a party an alternate address for service (at [30]);·Whilst an email address was specified at the foot of the application dated 27 June 2016, it was permissible for the Registrar to send the Costs Estimate only to the party’s specified address for service (at [30]);·The letter of the Registrar providing the Costs Estimate was addressed to each party interested in the bill as required by r 40.20(3) of the Rules by the collective salutation “Dear Parties” and the subject title of the letter referring to the matter number and the parties in the proceeding (at [33]);·The Minus parties confused the issues of when a notice was given or received in terms of r 40.20(3) of the Rules, with when a notice is issued in terms of r 40.21(1) of the Rules (at [34]);·The Rules focus on the date of issue, rather than when the notice is given (at [35]);·Mr Minus was a litigant in person, but was also the representative of the corporate Minus parties and a barrister of 25 years’ standing (at [40]); and·Mr Minus’ explanation for why the notice of objection was not given in time by the Minus parties was hardly an acceptable one (at [43]).

Ratio Decidendi

Legal Principle Established

In summary, the respondents made the following submissions in relation to the Extension Application:·The applicants have afforded no satisfactory explanation for a delay of approximately ten months, which was also four months subsequent to Mr Minus paying the amount outstanding in the Certificate of Taxation;·The applicants’ contention in ground 1, namely that the applicants were not allowed to object to the Costs Estimate, is false, as the applicants’ alleged inability to do so within time was because Mr Minus was prevented from accessing the address for service, which was a matter for which the applicants bore responsibility;·The applicants’ ground 2, concerning the Court’s administrative processes, fails to demonstrate any appellable error on the part of the primary Judge;·The applicants were not denied the right to be heard before the primary Judge as they claimed in grounds 3 and 4, as the 10 August 2017 hearing and the 18 August 2017 hearing were both adjourned at the request of the applicants and they were given ample opportunity to make submissions and adduce any evidence before the primary Judge;·Mr Minus has previously raised allegations of ostensible bias on the basis of a judge’s prior membership of, or connection with, a State bar association, and those claims have been determined to be without merit;·There was no logical connection between, on the one hand, the primary Judge’s position as a former barrister and member of the Queensland Bar Association and any continuing engagement with the Queensland Bar Association by participating in training sessions, and, on the other hand, the issues in the proceedings which might reasonably have led a reasonable observer to think the primary Judge might not determine the matter impartially;·His Honour’s attendance in Papua New Guinea ultimately resulted in the applicants receiving a further indulgence of time to file written submissions;·The manner in which the primary Judge conducted the proceedings reveals nothing which might lead a fair-minded observer to conclude that the primary Judge might not determine the matter before him on its legal and factual merits;·There is nothing which could conceivably support an allegation of actual bias on the part of the primary Judge; and·The applicants’ grounds 11 to 14 are without merit as the applicants provided their explanation for the delay and the primary Judge found that explanation to be inadequate, not incomplete.CONSIDERATION The Court has power under r 35.14 of the Rules to grant an extension of time in which to seek leave to appeal upon application. Leave to appeal is required in the circumstances because the decision of the primary Judge was interlocutory in nature. As the majority of the Full Court observed in BVG17 v BVH17 (2019) 268 FCR 448; [2019] FCAFC 17:30.In the circumstances it [sic] appropriate for the Court to briefly consider principles relevant to extension of time and leave to appeal: see for example discussion of the Full Court in SZVCP v Minister for Immigration and Border Protection [2016] FCAFC 24; (2016) 238 FCR 15 at [13]-[16]…34.In considering whether to order an extension of time in which to file a notice of appeal, the Court is required to determine whether an order in such terms is in the interests of justice. This ordinarily requires consideration of issues including the length and explanation for the delay, the nature of the litigation, the prejudice to other parties of a grant or refusal of an extension of time, and the prospects of success of the appeal if it proceeded: see AZAEY v Minister for Immigration and Border Protection [2015] FCAFC 193; (2015) FCAFC 193 at [10]-[12].…45.The principles governing the grant or refusal of leave to appeal from an interlocutory judgment were explained in Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCAFC 844; (1991) 33 FCR 397 at 398-399 and recently reiterated in Nationwide News Pty Limited v Rush [2018] FCAFC 70 at [3]. The first question is whether, in all the circumstances, the interlocutory judgment is attended with sufficient doubt to warrant it being reconsidered on appeal. The second question is whether substantial injustice would result if leave were refused, supposing the interlocutory judgment to be wrong.