Dr Guy N Elston v Commonwealth of Australia

[2015] HCASL 52

DR GUY N ELSTON

v

COMMONWEALTH OF AUSTRALIA

[2015] HCASL 52
B38/2014

1. In 2001, the respondent agreed to grant money to the university employing the applicant, on the basis that the money would be used to pay the applicant's salary.  In 2006, the university suspended the applicant's employment without pay pending resolution of misconduct allegations.  Consequently, the respondent suspended payment of the grant money. 

2. The applicant commenced proceedings alleging at least breach of contract, breach of a duty of care and defamation.  On 9 September 2013, the Federal Court of Australia (Logan J) made orders striking out the applicant's statements of claim and ordered that the matter proceed to trial in respect of issues relating to claims of breach of contract and failure to afford natural justice.  At trial, the applicant argued a number of matters outside the scope of the issues specified in those orders.  On 31 March 2014, the Federal Court (Rangiah J) rejected each ground advanced by the applicant and dismissed his application.

3. The applicant commenced an appeal from the decision of Rangiah J.  The respondent filed an application seeking orders that the applicant give security for the respondent's costs in the appeal.  On 1 July 2014, the Federal Court (Katzmann J) ordered that the applicant give security for the respondent's costs. 

4. The applicant applied to this Court for special leave to appeal from the decision of Katzmann J.  The application was deemed abandoned pursuant to r 41.10.4.1, but on 16 December 2014, Kiefel J ordered that the application be reinstated and directed the applicant to file submissions as to whether defamation was a live issue and had been dealt with at trial. 

5. On 27 January 2015, the applicant filed a further draft notice of appeal and written case, which are principally directed to the underlying dispute.  The submissions concerning defamation do not comply with the order of 16 December 2014. 

6. In any event, Katzmann J dealt with the question whether a claim for defamation was amongst the four issues upon which the trial was directed to proceed and held that it was not.  Her Honour further observed that there would be no real prospect of such a claim succeeding.

7. This application for special leave concerns the exercise of discretion involving the application of well-settled principles.  It gives rise to no question of principle for the determination of this Court.  The applicant requires an extension of time to bring his application.  Special leave to appeal should be refused, and so it would be futile to grant an extension of time.

8. Pursuant to r 41.10.5, we direct the Registrar to draw up, sign and seal an order dismissing the application with costs of all the proceedings in this Court.

S.M. Kiefel
9 April 2015 P.A. Keane