Finch v The Heat Group (No 3)

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FEDERAL COURT OF AUSTRALIA

Finch v The Heat Group (No 3) [2017] FCA 64

Appeal from:

Application for leave to appeal: Finch v The Heat Group Pty Ltd (No 5) [2016] FCA 191

Application for extension of time and leave to appeal: Finch v The Heat Group Pty Ltd (No 6) [2016] FCA 390

File numbers: VID 243 of 2016
VID 457 of 2016
Judge: PAGONE J
Date of judgment: 3 February 2017
Catchwords:

PRACTICE AND PROCEDURE – Application for leave to appeal orders of a single Judge striking out a further amended statement of claim and security for costs and costs – whether Judge erred – consideration of judicial discretion

PRACTICE AND PROCEDURE – Application for extension of time and leave to appeal costs orders of a single Judge – whether Judge erred – consideration of judicial discretion

Legislation:

Disability Discrimination Act 1992 (Cth)

Equal Opportunity Act 1995 (Vic)

Fair Work Act 2009 (Cth)

Federal Court Act 1976 (Cth)

Sex Discrimination Act 1984 (Cth)

Trade Practices Act 1974 (Cth)

Cases cited:

Anthony v Chris Savage Pty Ltd [2003] NSWSC 698

Avetmiss Easy Pty Ltd v Australian Skills Qualification Authority [2014] FCA 507

Baltic Shipping Co v Dillon (1993) 176 CLR 344

Caason Investments Pty Ltd v Cao (No 2) (2015) 237 FCR 351

Construction, Forestry, Mining and Energy Union v Australian Competition and Consumer Commission (2016) 242 FCR 153

Cubillo v Commonwealth (2001) 112 FCR 455

Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397

Deighton v Telstra Corporation Ltd [1997] FCA 1568

Finch v Heat Group Pty Ltd [2011] HCASL 117

Finch v The Heat Group Pty Ltd (Anti-Discrimination) [2010] VCAT 802

Finch v The Heat Group Pty Ltd (No 2) [2016] FCA 791

Finch v The Heat Group Pty Ltd (No 4) [2015] FCA 1450

Finch v The Heat Group Pty Ltd (No 5) [2016] FCA 191

Finch v The Heat Group Pty Ltd (No 6) [2016] FCA 390

Finch v The Heat Group Pty Ltd (No 4) [2015] FCA 1450

Finch v The Heat Group Pty Ltd (Unreported, Victorian Civil and Administrative Tribunal, Harbison VP, 31 January 2011)

Finch v The Heat Group Pty Ltd [2010] VSCA 256

Finch v The Heat Group Pty Ltd [2011] FWA 4462

Finch v The Heat Group Pty Ltd [2011] FWAFB 6729

Finch v The Heat Group Pty Ltd [2011] HCATrans 111

Finch v The Heat Group Pty Ltd [2011] VSCA 100

Finch v The Heat Group Pty Ltd [2016] FCA 315

Ford v La Forest [2002] 2 Qd R 44

Gallo v Dawson (1990) 93 ALR 479

House v The King (1936) 55 CLR

Margan v Australian Human Rights Commission [2013] FCA 612

Niemann v Electronic Industries Ltd [1978] VR 431

Sharman License Holdings Ltd v Universal Music Australia Pty Ltd [2005] FCA 802

State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In Liq) (1999) 160 ALR 588

SZAJB v Minister for Immigration and Citizenship (2008) 168 FCR

SZUGQ v Minister for Immigration and Border…

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Details
Case
[2017] FCA 64
Decision Date

CaseChat Overview and Summary

The case of Finch v The Heat Group (No 3) involved an application by Ms Finch for leave to appeal against orders made by a single judge in the Federal Court of Australia. The primary judge had struck out Ms Finch's further amended statement of claim, granted security for costs, and awarded costs against Ms Finch. Ms Finch sought to appeal the orders on several grounds, including that the judge had failed to consider her submissions and evidence, demonstrating bias and procedural unfairness. The court was required to decide whether the judge had erred in his exercise of discretion in striking out the amended statement of claim and in awarding costs against Ms Finch.

The court found that the primary judge had not erred in his decision to strike out the amended statement of claim. The court held that the judge was not required to consider all of Ms Finch's submissions and evidence when making his decision. The judge was only required to consider the application and statement of claim as relied upon by Ms Finch, which he did and gave reasons for dismissing the proceeding. The court also found that the judge had not erred in awarding costs against Ms Finch. The court held that the judge had exercised his discretion in making the costs order and that the order was not unreasonable or unjust. The court further held that the judge had not acted with bias or procedural unfairness in making the costs order.

The court dismissed Ms Finch's application for leave to appeal the orders of the primary judge. The court found that the judge had not erred in his exercise of discretion in striking out the amended statement of claim and in awarding costs against Ms Finch. The court held that the judge had considered the relevant material and had made a rational and reasoned decision. The court further held that the judge had not acted with bias or procedural unfairness in making the costs order. The court found that the judge had exercised his discretion in making the costs order and that the order was not unreasonable or unjust. The court held that the judge had considered the relevant material and had made a rational and reasoned decision. The court found that the judge had not acted with bias or procedural unfairness in making the costs order.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The third ground in the application by Ms Finch for leave to appeal also overlaps with the matters in the previous two grounds. Ground 3 was expressed as follows:The Docket Judge Erred by The Failure to Consider the Appellant’s Submissions and Evidence, Demonstrating Bias and Procedural Unfairness in breach of the Evidence Act or otherwise. The docket Judge erred by failing to consider the Appellant’s evidence and submissions in defence to the Respondents applications particularised in the draft notice of appeal in breach of the s 142 Evidence Act 1995 (Cth)The matters relevant to this ground in the proposed notice of appeal are:3.The Docket Judge Erred by The Failure to Consider the Appellant’s Submissions and Evidence, Demonstrating Bias and Procedural Unfairness in breach of the Evidence Act or otherwise3.1The docket Judge erred by failing to consider the Appellant’s evidence and submissions in defence to the Respondents applications.Particulars3.1.1.The docket Judge did not make a single reference to the Appellant’s submissions and evidence that she relied upon, and made no reference to steps taken on the reasoning as to the Judgement:(a)Finch affidavit and Outline of Submissions - 26 July 2013;(b)Finch affidavit and Outline of Submissions - 29 November 2013;(c)Finch affidavit - 24 December 2014(d)Finch affidavit - 4 February 2015.(e)Finch Outline of Submissions - 4 February 2015(f)Finch affidavit - 14 December 2015;(g)Finch Schedule of Causes of Action, Contingent and Limitation of Statute requirement.3.1.2.On the counts of (a) to (g) of evidence and submissions, The docket Judge failed to consider any of these in his steps to coming to the decision arrived at for the applications made by the Respondents for security of cost and also for the application made by the Appellant for restraint and recusal application.3.2 The Evidence and Factual Findings3.2.1The docket Judge erred in law in taking an approach to the evidence and fact finding which:(a)did not give any proper regard to section 140(2) of the Evidence Act 1995 (EA);(b)was wrong, unreasonable or perverse in rejecting unchallenged evidence in the particular circumstances the case, being evidence which was not inherently incredible or improbable;(c )contrary to the established approach on the hearing of summary applications, failed to take the appellant’s case at its highest and speculated that no evidence could or would be led at trial which would support or corroborate the appellant’s evidence which he otherwise never considered or failed to state otherwise; and(d)involved the drawing of inferences that were not open as they were the product of conjecture and speculation.3.3 None, or Insufficient, Evidence for Findings3.3.1In the circumstances of a summary application and having regard to section 140(2) of the EA, there was no or no sufficient evidence upon which the docket Judge could find( schedules of finding to be made in submissions3.4 Unreasonable Rejection of Evidence3.4.1In the circumstances of a summary application and having regard to section 140(2) of the EA, the primary judgment erred in rejecting unchallenged evidence without a proper basis to do so, ( a series of discrete findings without evidence to be scheduled in submissions)The ground that his Honour’s reasons did not refer to all of the submissions and evidence of Ms Finch does not cast doubt upon his Honour’s decision or upon his Honour’s exercise of the discretion. His Honour was not required to refer to all of Ms Finch’s submissions and evidence when making his decision and in publishing his reasons. The first application before his Honour required his Honour to consider whether the proceeding should be dismissed by reference to the application and statement of claim as relied upon by Ms Finch. His Honour dealt with the application on that basis and gave reasons for dismissing the proceeding to the extent that his Honour dismissed it. His Honour was not required to deal with other matters relied upon by Ms Finch that his Honour did not consider to bear upon the matter he had to determine: see State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In Liq) (1999) 160 ALR 588, [90]. To that might be added that none of the matters in the grounds of the application by Ms Finch, or in the proposed notice of appeal, point to any error in the decision made by his Honour. It may, in other words, be accepted as claimed by Ms Finch that his Honour “did not make a single reference” to Ms Finch’s submissions, or made no reference to steps taken in any of the affidavits mentioned in, for example, paragraph 3.1.1 of the proposed notice of appeal, but his Honour’s not referring to any of the steps revealed no error in the decision or in the exercise of discretion.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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