Finch v The Heat Group (No 3)
[2017] FCA 64
•3 February 2017
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 2016Judge: 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 Protection [2016] FCA 213
Date of hearing: 14 September 2016 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 41 Counsel for the Applicant: The applicant appeared in person Counsel for the Respondents: Mr M Felman Solicitor for the Respondents: Minter Ellison REASONS FOR JUDGMENT
VID 243 of 2016
VID 457 of 2016BETWEEN: JO-ANNE FINCH
Applicant
AND: THE HEAT GROUP PTY LTD (ACN 092 941 430)
First Respondent
GILLIAN FRANKLIN
Second Respondent
PETER KADLECIK (and others named in the Schedule)
Third Respondent
JUDGE:
PAGONE J
Ms Finch has made two applications in the Court’s appellate jurisdiction. The first (VID 243 of 2016) was for leave to appeal from the orders made by Jessup J on 4 March 2016 in Finch v The Heat Group Pty Ltd (No 5) [2016] FCA 191. The second (VID 457 of 2016) was an application for extension of time and for leave to appeal from the orders made by Jessup J on 20 April 2016 in Finch v The Heat Group Pty Ltd (No 6) [2016] FCA 390. His Honour’s orders dated 4 March 2016 were made on applications made by the respondents seeking (a) to strike out a further amended statement of claim by Ms Finch, (b) security for costs pursuant to s 56(1) of the Federal Court Act 1976 (Cth) (“the Federal Court Act”), and (c) costs. His Honour’s orders on 20 April 2016 were concerned with the costs which the respondents claimed against Ms Finch.
The dispute in this Court between Ms Finch and the respondents has a lengthy history which has been recounted in other reasons for decision: see, for example, Finch v The Heat Group Pty Ltd (Anti-Discrimination) [2010] VCAT 802; and Finch v The Heat Group Pty Ltd (No 5) [2016] FCA 191. Ms Finch had been employed as the Victorian Territory Manager with The Heat Group Pty Ltd for a number of years. On 29 October 2008 Ms Finch complained to the Victorian Civil and Administrative Tribunal (“VCAT”) that five of the six respondents to proceedings subsequently commenced in the Federal Court had contravened various provisions of the Equal Opportunity Act 1995 (Vic). That complaint was dismissed by Harbison VP in VCAT on 29 June 2010: Finch v The Heat Group Pty Ltd (Anti‑Discrimination) [2010] VCAT 802. In November 2010 VCAT heard an application by the respondents for Ms Finch to pay their costs of the VCAT proceedings and on 31 January 2011 VCAT ordered that Ms Finch pay two thirds of the respondents’ taxed costs on County Court Scale D: Finch v The Heat Group Pty Ltd (Unreported, Victorian Civil and Administrative Tribunal, Harbison VP, 31 January 2011). On 5 October 2010 the Court of Appeal of the Supreme Court of Victoria refused an application by Ms Finch for leave to appeal the decision of VCAT: Finch v The Heat Group Pty Ltd [2010] VSCA 256. On 9 June 2011 the High Court dismissed an application by Ms Finch for special leave to appeal the decision of the Court of Appeal: Finch v Heat Group Pty Ltd [2011] HCASL 117. Ms Finch was also unsuccessful in her attempts to appeal the orders of VCAT that she pay part of the respondents’ costs. On 8 April 2011 the Court of Appeal dismissed her application for leave to appeal the VCAT costs orders but ordered that they be stayed for a period of 28 days: Finch v The Heat Group Pty Ltd [2011] VSCA 100, [25]. On 29 April 2011 the High Court dismissed the application by Ms Finch for special leave to appeal the decision against her on costs: Finch v The Heat Group Pty Ltd [2011] HCATrans 111 (Hayne J ex tempore). On 9 June 2011 the High Court dismissed an application by Ms Finch to extend the stay of the orders that she pay the costs which had been awarded against her: Finch v Heat Group Pty Ltd [2011] HCASL 117.
In May 2011 Ms Finch filed a general protections application with Fair Work Australia under Part 3-1 of the Fair Work Act 2009 (Cth) in respect of her dismissal from employment with The Heat Group Pty Ltd. Her application was filed after the 60 day time period prescribed by the Fair Work Act 2009 (Cth), and on 13 July 2011 the Fair Work Australia dismissed an application by Ms Finch for an extension of time in which to file her general protections application: Finch v The Heat Group Pty Ltd [2011] FWA 4462. On 29 September 2011 the Full Bench of the Fair Work Commission dismissed an application by Ms Finch for permission to appeal from the Fair Work Commission decision: Finch v The Heat Group Pty Ltd [2011] FWAFB 6729. On 1 March 2012 Ms Finch filed a complaint with the Australian Human Rights Commission alleging discrimination and victimisation in breach of the Sex Discrimination Act 1984 (Cth) and the Disability Discrimination Act 1992 (Cth) (“the Disability Discrimination Act”). On 24 October 2012 the Australian Human Rights Commission terminated her complaint and issued Ms Finch with a referral certificate allowing her to prosecute claims under the Disability Discrimination Act.
The proceedings in this Court were commenced on 21 September 2012 by application accompanied by a statement of claim containing claims under the Trade Practices Act 1974 (Cth) (“the Trade Practices Act”). The proceeding was listed for directions before Jessup J as the docket judge on 2 November 2012. On 30 October 2012 Ms Finch wrote to the solicitors for the respondents, Minter Ellison, informing them, amongst other things, that she intended to amend the Federal Court proceedings to include allegations that she had made in her complaint to the Australian Human Rights Commission and requested an adjournment of the directions hearing. The solicitors for the respondents replied on the following day (31 October 2012) that they did not consent to the adjournment but expressed the views that the statement of claim by Ms Finch did not comply with the rules for pleadings and that the statement of claim was seriously defective. The parties attended the directions hearing on 2 November 2012 and Jessup J gave Ms Finch leave to amend her originating application and her statement of claim by 24 December 2012. On 20 December 2012 J Kotsifas & Associates informed Minter Ellison of their commencement to act on behalf of Ms Finch and requested the respondents’ agreement for an extension of time in which to file an amended originating application and an amended statement of claim which had then been due on 24 December 2012. Consent orders were made by his Honour on 20 December 2012 giving Ms Finch leave to file and serve an amended originating application and an amended statement of claim by 4 February 2013. On 4 February 2013 J Kotsifas & Associates wrote to Minter Ellison requesting a further extension of time in which to file the amended originating application and the amended statement of claim. Minter Ellison responded on the same day stating that they did not oppose the request for a further extension but that it was a matter for the Court whether or not to grant the request. A directions hearing was held on 8 March 2013 at which the parties (including Ms Finch) were represented by counsel and instructing solicitors. Counsel who appeared for Ms Finch on that occasion frankly conceded that the statement of claim as filed purported to reagitate, or sought to reagitate, matters that had clearly been the subject of adverse findings against Ms Finch by VCAT. On that occasion Jessup J gave leave for Ms Finch to file an amended originating application and an amended statement of claim by 19 April 2013. His Honour also ordered that any application by the respondents for the early termination of the proceedings, or to strike out any part of the amended statement of claim, was to be filed by 3 May 2013.
On 19 April 2013 Ms Finch, rather than J Kotsifas & Associates (who were then still recorded as her lawyers on the Federal Court record in the proceeding), served upon Minter Ellison an amended originating application dated 19 April 2013 and an amended statement of claim also bearing that date. The amended statement of claim was 93 pages in length and was stated to have been drafted by Mr Bush Ndiege who was described in an affidavit as a law student and the husband of Ms Finch.
On 3 May 2013 the respondents filed an interlocutory application seeking orders to strike out the amended statement of claim. It is not necessary for present purposes to recount all of the steps which occurred between 3 May 2013 (including the stay of the proceedings because of Ms Finch’s ill-health) and 25 July 2014. On 25 July 2014, however, Jessup J ordered by consent that Ms Finch file and serve a further amended statement of claim by 29 August 2014. That order was not complied with but on 3 October 2014 Ms Finch served a further amended statement of claim by email. On 28 November 2014 the respondents filed an interlocutory application seeking (a) to strike out the further amended statement of claim, (b) security for costs, and (c) costs. That application came to be heard on 14 December 2015 but was preceded by an unsuccessful application by Ms Finch that Jessup J recuse himself from hearing the proceeding: Finch v The Heat Group Pty Ltd (No 4) [2015] FCA 1450. His Honour proceeded to consider the applications by the respondents and decided them on 4 March 2016 and 20 April 2016.
The present subsequent application by Ms Finch for leave to appeal his Honour’s decision dated 4 March 2016 was to be heard on 4 May 2016. It could not be heard on that day, however, and both it and the subsequent application for an extension of time and leave to appeal his Honour’s cost orders of 20 April 2016 were delayed until other interlocutory matters were heard and determined: see Finch v The Heat Group Pty Ltd [2016] FCA 315; and Finch v The Heat Group Pty Ltd (No 2) [2016] FCA 791. The two applications by Ms Finch from his Honour’s orders of 4 March 2016 and 20 April 2016 came ultimately to be heard on 14 September 2016 but on that day their hearing was preceded by other applications by Ms Finch. The first was an application by Ms Finch for an adjournment relying upon various matters. One of the matters relied upon by Ms Finch for an adjournment was that she had made a number of complaints to other bodies about the legal practitioners appearing for the respondents, and Ms Finch submitted that her complaints to the other bodies ought to be determined by those other bodies before the Court should allow the respondents to be heard with the benefit of those representatives. The essence of that submission was much the same as the application which Ms Finch had previously made to prevent the respondents’ lawyers from continuing to act for the respondents in these proceedings which had been rejected in Finch v The Heat Group Pty Ltd (No 2) [2016] FCA 791. A second basis for the adjournment application was that Ms Finch had unsuccessfully sought to issue subpoenas in aid of her applications and Ms Finch submitted that the hearing should be adjourned because at the date of the hearing she still had 21 days within which to appeal the decision of the Registrar refusing her applications for subpoenas. The third basis for the adjournment application was that she had made a complaint to the Chief Justice of the Federal Court which had only been rejected by his Honour on the Friday preceding the day of the hearing and that she might wish to appeal from the failure by the Chief Justice to accede to her complaint. The application for an adjournment was rejected for the reasons given orally at the hearing being to the effect that the complaints against the practitioners had effectively been determined against her and that the other matters raised by Ms Finch were not relevant to the questions in the applications for leave to appeal and for the extension of time and leave to appeal. Ms Finch then made a recusal application relying, amongst other matters, upon the adverse decision on her application for adjournment. That recusal application was also rejected for the reasons given orally at the hearing. Ms Finch next sought to file an amended application for leave to appeal which was opposed and was rejected for the reasons given orally at the hearing. The document sought to be filed by Ms Finch in large part sought to incorporate written submissions into the text of parts of her then extant application for leave to appeal as filed. Ms Finch, however, was permitted to make oral submissions and in large part appeared to read from the document which she had unsuccessfully sought to file in substitution for her amended application for leave to appeal. Ms Finch was not legally represented at the hearing but was assisted at the bar table by her husband and was articulate in the forceful presentation of her case.
The first of the applications by Ms Finch that needs to be considered is her application for leave to appeal the orders made by Jessup J on 4 March 2016 in Finch v The Heat Group Pty Ltd (No 5) [2016] FCA 191. Ms Finch needed leave to appeal those orders because they were interlocutory in nature as they did not decide the merits of the underlying dispute: see Federal Court Act, s 24(1A); Avetmiss Easy Pty Ltd v Australian Skills Qualification Authority [2014] FCA 507, [4]; and Cubillo v Commonwealth (2001) 112 FCR 455, [182].
On 4 March 2016 Jessup J made the following orders:
1.The Further Amended Statement of Claim filed on 7 October 2014 be struck out.
2.The applicant have leave to file and serve, within 21 days, a Second Further Amended Statement of Claim confined to the allegation that the termination of her employment by the first respondent was done in contravention of the Disability Discrimination Act 1992 (Cth).
3.If the applicant does file and serve a Second Further Amended Statement of Claim conformably with Order 2 above, she also file and serve, at the same time, a Further Amended Originating Application confined to a claim based on the allegation referred to in that order.
4.Other than as provided for in Orders 2 and 3 above, the proceeding be dismissed.
5.If the applicant does not file and serve a Second Further Amended Statement of Claim and a Further Amended Originating Application conformably with Orders 2 and 3 above, the proceeding thereupon be dismissed.
6.Within 28 days, the applicant provide security for the respondents’ costs of the proceeding –
(a) in the sum of $25,000; and
(b)in a form acceptable to the Chief Executive Officer of the Federal Circuit Court of Australia.
7.If security is not provided conformably with Order 6 above, the proceeding thereupon be dismissed.
8.With respect to the relief sought in para 7 of the respondents’ Interlocutory Application filed on 28 November 2014, the parties file and serve in this court written submissions as follows:
(a) the applicant, within 21 days;
(b) the respondents’ in reply, if necessary, within a further seven days.
9. With respect to the costs of –
(a)so much of the proceeding as is dismissed pursuant to Order 4 above; and
(b)the respondents’ Interlocutory Application filed on 28 November 2014;
the parties file and serve in this court written submissions as follows:
(i)the respondents, within seven days;
(ii)the applicant, within a further 14 days;
(iii)the respondents in reply, if necessary, within a further seven days.
10.If the proceeding is dismissed under Order 5 or Order 7 above, the parties file and serve in this court written submissions as to the costs of the proceeding, as follows:
(a)the respondents, within seven days after the dismissal of the proceeding;
(b) the applicant, within a further 14 days;
(c) the respondents in reply, if necessary, within a further seven days.
11.Subject to the following order, the proceeding be transferred to the Federal Circuit Court of Australia.
12. Pursuant to s 32AB(7) of the Federal Court of Australia Act 1976 (Cth):
(a)subject to Order 6 above, all questions as to the costs of the proceeding while it was pending in this court, including the consideration and determination of matters arising under Orders 8, 9 and 10 above, be dealt with in this court;
(b)upon the transfer of the proceeding to the Federal Circuit Court of Australia, Orders 2, 3, 5, 6, and 7 above thereafter stand as orders of that court;
(c)subject to the orders made this day, the future conduct of the proceeding be in accordance with the orders and directions given by the Federal Circuit Court of Australia.
Order 5 provided for the dismissal of the proceedings unless Ms Finch complied with orders 2 and 3 in the times provided by those orders. The effect of order 5 was varied on 24 March 2016 on an interlocutory application made by Ms Finch as follows (see Finch v The Heat Group Pty Ltd [2016] FCA 315):
1.Order 5 of the orders made by Jessup J on 4 March 2016 be amended by deleting the word “thereupon” in the last line and adding to it the words “at the hearing of the application for leave to appeal, unless otherwise ordered,”.
2.The application otherwise be dismissed.
The benefit to Ms Finch by the variation made on 24 March 2016 to the orders made by Jessup J was subsequently extended on 14 September 2016 until the final determination of the application by Ms Finch for leave to appeal.
An effect of the orders which Ms Finch seeks leave to appeal is, by order 4, to dismiss her proceeding except to the extent that his Honour gave Ms Finch leave to file and serve, within a specified time, an amended statement of claim confined to the allegations made by her that the termination of her employment by the first respondent was done in contravention of the Disability Discrimination Act. The application by Ms Finch for leave to appeal is not a hearing of the appeal itself, but it is relevant in considering whether to grant leave to appeal to consider the merits of a possible appeal and whether substantial injustice would result if leave to appeal were refused supposing the judgment below to be wrong. In Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 the Full Court endorsed the test in Niemann v Electronic Industries Ltd [1978] VR 431 as that normally to be applied in determining whether leave to appeal from an interlocutory decision should be granted. The formula laid down in Niemann was described by the Full Court in Décor Corporation at 398-399 as involving two tests:
The first test, which relates to the prospects of the proposed appeal, is “whether, in all the circumstances, the decision is attended with sufficient doubt to warrant its being reconsidered by the Full Court”. The second
“is whether substantial injustice would result if leave were refused, supposing the decision to be wrong.
…
In my opinion, the sufficiency of the doubt in respect of the decision and the question of substantial injustice should not be isolated in separate compartments. They bear upon each other, so that the degree of doubt which is sufficient in one case may be different from that required in another. Ultimately, a discretion must be exercised on what may be a fine balancing of considerations.”
The Full Court went on to note at 400 that an important distinction was to be observed, when a court comes to exercise its discretion, between common interlocutory decisions on a point of practice and an interlocutory decision determining a substantive right. At 400 the Court observed that “leave will more readily be granted” in the latter than in the former.
Ms Finch relied upon nine grounds in her application for leave to appeal the orders of Jessup J made on 4 March 2016. The first of the grounds was stated as follows:
The docket Judge erred by demonstrating apprehended bias and procedural unfairness. These are particularised in the draft notice of appeal in the form of declining to recuse himself from the proceedings via order made on 14 December 2015, further declining to hear a second recusal application against him. Disallowing the applicant to tender evidence in an open court and make submission in evidence. Disallowing the applicant for the third time to make a restraint application against the respondent solicitors on the same day and by further failure to publish orders and judgements to orders made.
The ground was said to be particularised in the draft notice of appeal which contained a number of grounds of appeal based upon complaints that his Honour had demonstrated apprehended bias, procedural unfairness and a refusal to recuse himself. The particulars to ground 1 in the proposed notice of appeal contained the following:
1.The docket Judge erred by demonstrating apprehended bias and procedural unfairness
1.1The docket Judge erred by declining to recuse himself from the proceedings via order made on 14 December 2015, by reason of:
Particulars
1.1.1failing to consider, or adequately consider apprehended bias, by reason of, the consideration is inconsistent with the test of apprehended bias to be applied and the views of the fair‑minded observer considered as there is no intention by law to provide a threshold that must be met, neither is there a requirement that a substantiative proceeding has to be complete before dealing with such complaints;
1.1.2failing to consider a pre-judgment of the Appellant’s credibility and character;
1.1.3failing to disclose the association between himself and Mr Richard West, the partner of the Respondents law firm heading up the defence to the Appellant’s claims;
1.1.4failing to consider the public declaration made by the Respondents’ counsel on 5 February 2015, that it was counsel’s understanding his Honour wanted a terminal end to the Appellant’s claims, and thus Respondents counsel’s views his Honour had descended into the arena and assumed ‘the robe of an advocate’ for the Respondents;
1.1.5disallowing the Appellant to make a second recusal application
1.2.Disallowing the Appellant to tender evidence in an open court to support her closing Submission in a security of cost application. Thereafter refusing to consider the Appellant closing submission made in an affidavit into her income.
1.3Disallowing the Appellant for the third time to make a restraint application against the Respondent solicitors
1.4.Disallowing the Appellant when making a contempt of court Appellant against the respondent solicitors for presenting incorrect and misleading document to support their strike out application
1.5.The docket Judge erred by failing to publish full and proper reasons for the order made on 4 December 2015 and 4 March 2016, as to the Appellant’s recusal application made via Interlocutory Application dated 19 April 2015, and Amended Interlocutory Application dated 24 June 2015, by reason of:
Particulars
1.5.1by failing to consider and to mention even in one instance the material and defence relied upon by the Appellant in the order and reasons given on the 4 March 2016
1.5.2 The docket Judge erred by; not making orders and publishing full and proper reasons, and demonstrating actual bias, for the following determinations/decisions made on:
(a) 5 February 2015, the refusal of:
(i)the Appellant’s adjournment; and
(ii)restraint application; and further
(iii)the continuing to hear the Respondents Interlocutory Applications dated 28 November 2014 despite the Appellant’s objections;
(b) 18 August 2015, the refusal of:
(i) the Appellant’s adjournment; and
(ii)transferring of the Appellant’s Interlocutory Application dated 19 April 2015 and then Amended Interlocutory Application dated 24 June 2015, to an alternate justice of the Court to be heard and determined;
(c)9 October 2015, ordering costs against the Respondents for their failed abuse of process application dated 28 November 2014;
(d)11 November 2015, the granting of leave to cease acting, to the Appellant’s legal representative, Mr. Allan McMonnies;
(e)11 and 23 November 2015, the refusal to accept the Appellant’s Amended Interlocutory Application dated 24 June 2015, for filing, notwithstanding; the Appellant had previously filed it, The docket Judge had permitted leave to file it, The docket Judge and the parties had relied upon it via a hearing on 18 August 2015, and it was evident the Appellant had instructed it be filed a second time however the Appellant’s legal representative, Mr. McMonnies had for one reason or another not filed it;
(f)4 December 2015, sending an email, being an informal, unauthenticated, and thus non legally binding document, in response to the Appellant’s recusal application made via Interlocutory Application dated 19 April 2015, and Amended Interlocutory Application dated 24 June 2015, advising his Honour did not propose to recuse himself, and thus disallowing the Appellant’s right of review/appeal/seek legal advice/representation prior to the upcoming hearing on 14 December 2015, and consequently diminishing the Appellant’s right of review/appeal, or ability to seek legal advice, and prior to the upcoming hearing on 14 December 2015; and thereafter
(g) 14 December 2015:
(i) the refusal of:
a.the Appellant’s adjournment application until such time as an order was made and full and proper reasons published as to her recusal application;
b.the Appellant’s standing down of the hearing application until such time as she was permitted her right of review/appeal; and thereafter
(ii) the refusal to allow:
a.the Appellant to file and thus be heard upon, her Interlocutory Application dated 14 December 2015 (of which included a second recusal application);
b.the Appellant to give submissions and evidence in defence to the Respondents Interlocutory Applications dated 28 November 2014; and
(iii)the further hearing of, and determination of, the Respondents three (3) Interlocutory Applications.
Ms Finch elaborated upon this ground in oral submissions at the hearing of her application.
Nothing in the application for leave to appeal provides any basis to suppose that his Honour’s decision of 4 March 2016 was incorrect by reason of any of the matters in the first ground relied upon by Ms Finch in the application for leave to appeal. It is true that Ms Finch sought that his Honour recuse himself and that his Honour did not do so. On 19 April 2015 Ms Finch sought relief by interlocutory application that Jessup J recuse himself from presiding over the proceeding, and for present purposes it may be assumed in her favour that she made more than one application to that effect. The application by Ms Finch made on 19 April 2015 was supported by an affidavit sworn on 15 April 2015 and was refused by his Honour on 14 December 2015 in Finch v The Heat Group Pty Ltd (No 4) [2015] FCA 1450. Ms Finch did not seek leave to appeal from that decision nor gave any explanation for why she did not seek leave to appeal that decision within the time provided by the Federal Court Rules 2011 (Cth) (“the Rules”). More importantly, however, there is no foundation in any of the materials in the application currently to be determined which in any way suggests that his Honour’s refusal of her application was wrong. It can also be accepted that Ms Finch sought on other occasions for his Honour to recuse himself, but her application that his Honour recuse himself had been determined against Ms Finch and nothing has been shown to indicate error in his Honour’s continuing to hear the proceeding, and no application was made by Ms Finch at the time when she contended that she had made recusal applications that had either been rejected without reasons or which Ms Finch claimed had not been considered by his Honour.
The second ground relied upon by Ms Finch in her application for leave to appeal is related to the first ground but was expressed primarily as a failure by his Honour to conduct the hearing in accordance with the principles of natural justice in light of Ms Finch being a self‑represented litigant. The second ground in Ms Finch’s application was stated as follows:
The docket Judge erred by Not Abiding by the obligation in law to conduct the hearing in accordance with the principles of natural justice particularly as the Appellant was a self-represented litigant. The docket Judge had a duty to conduct the trial in a manner that was even handed and fair. He had a duty to ensure that a reasonable person would not form the view that the docket Judge was acting in a manner that could give rise to a reasonable apprehension of bias towards the Appellant. The finding on apprehended bias would therefore be enough to have the matter remitted back for a review also.
(Footnotes omitted.)
The proposed notice of appeal contained particulars relating to this ground as follows:
2The docket Judge erred by Not Abiding by the obligation in law to conduct the hearing in accordance with the principles of natural justice particularly as the Appellant was a self-represented litigant.
2.1The docket Judge had a duty to conduct the trial in a manner that was even handed and fair. He had a duty to ensure that a reasonable person would not form the view that the docket Judge was acting in a manner that could give rise to a reasonable apprehension of bias towards the Appellant. The finding on apprehended bias would therefore be enough to have the matter remitted back for a review also.
Particulars
2.1.1Allowing applications in circumstances where Court rules were breached, it was not in the interests of justice and the rule of law, and further demonstrating bias and procedural unfairness – February to December 2015
(a)the docket Judge erred in accepting three (3) of the Respondents Interlocutory Applications dated 28 November 2014 (abuse of process, wasted/lost costs and security for costs), that were demonstrated to be lengthy, tendentious, embarrassing and vexatious and subsequently thereafter hearing the applications, on 5 February 2015, 18 August 2015 and 14 December 2015, by reason of:
(i)the Respondents had not complied with rule 16.32 of the Federal Court Rules 2011 (Cth), which stipulated a defence to the Appellant’s claims must be filed by 19 October 2012, and therefore were in default/contempt of Court from such time, and further pursuant to rule 16.12 of the Federal Court Rules 2011 (Cth), by the failure to not file a defence, and no relevant order being made, the Respondents defence to the Appellant’s claims, was thus closed;
(ii)the Respondents applications relied upon three (3) misleading and deceptive documents that the Respondents had previously relied upon via an application dated 13 May 2013, and of which had, on both occasions, been pointed out to The docket Judge; and
(iii)the Appellant had sought a restraint application on 5 February 2015, of which the docket Judge had declined to hear. His Honour unduly interfered with the conduct of the hearing of the case and failed to permit the Appellant to make submissions on matters that he intended to make rulings upon. When a party makes an application, the docket Judge must normally give the party some reasonable opportunity to make submissions in support of that application. This is so even if the docket Judge’s preliminary view is that the application will be unmeritorious. If the docket Judge refuses an application before receiving any submissions, the impression created is putting the Appellant request under sufferance.
(Footnotes omitted.)
Nothing in the material filed by Ms Finch in support of the second ground of appeal casts doubt upon the correctness of his Honour’s decision made on 4 March 2016. His Honour considered the applications and decided them in the exercise of the Court’s discretion. None of the material indicates a failure by his Honour to afford Ms Finch any opportunity to present her case.
The fundamental issue before his Honour had been whether the proceeding which Ms Finch sought to maintain in the Federal Court was an abuse of process to the extent that it sought to relitigate matters which had been decided in the VCAT proceeding in light of a statement of claim that was alleged to be defective. The procedural history to the application by the respondents to strike out the statement of claim traversed a significant period of time and revealed failures by Ms Finch to comply with orders which had been made by his Honour. As stated above, counsel appearing for Ms Finch at the directions hearing before his Honour on 8 March 2013 had frankly conceded that the statement of claim in its then current form was not maintainable. His Honour gave leave on that day for Ms Finch to file and serve by 19 April 2013 an amended originating application and an amended statement of claim but that order was not complied with. Additional time was given to Ms Finch by his Honour to file and serve amended pleadings and the time allowed to Ms Finch took into account, and included, a period of time when the health of Ms Finch made it impossible for her to undertake the further conduct of her case. The further amended statement of claim which the respondents sought to strike out by their application on 28 November 2014 was the amended statement of claim which had been filed by Ms Finch on 3 October 2014. His Honour considered the pleadings as relied upon by Ms Finch and found them to be, in their third attempt over a substantial period of time, not in a form that should be permitted to go to trial and to contain claims based upon circumstances which had been determined against Ms Finch in other proceedings which she had brought against all but one of the respondents in the Federal Court proceedings. To this could be added that at no stage since the time when the respondents made their application to strike out her application and statement of claim had Ms Finch ever produced a proposed new pleading which did not have the defects of the application and pleading considered by his Honour.
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 otherwise
3.1The docket Judge erred by failing to consider the Appellant’s evidence and submissions in defence to the Respondents applications.
Particulars
3.1.1.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 Findings
3.2.1The 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 Findings
3.3.1In 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 submissions
3.4 Unreasonable Rejection of Evidence
3.4.1In 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.
The fourth ground in the application by Ms Finch for leave to appeal was directed to the effect of the orders which his Honour had made. Ground 4 was expressed as follows:
The Docket Judge Erred When Entering into Orders that Could Not Be Complied With otherwise prejudicing the Appellant’s statutory rights of review and making unjust self‑executing orders in circumstances when it was not in accordance with the dispensation of justice and against a self-represented litigant to do so.
The draft notice of appeal relevantly stated:
4The Docket Judge Erred When Entering in to Orders That Could Not Be Complied With
4.1The docket Judge erred by entering into orders that could not be complied with without prejudicing the Appellant’s statutory rights and making unjust self executing orders.
Particulars
4.1.1The orders of the 4 March 2016, do not allow the Appellant’s statutory right of review to make an appeal in that time frame and be heard for a stay application.
4.1.2The orders are self executing and the Appellant’s rights are exhausted by none compliance, there is no allowance of proper cause otherwise that could be demonstrated by the Appellant or subject to further orders. The orders infringe the Appellant rights to review.
4.1.3The orders are not reviewable in as far as they have been transferred to the Court below. The Federal Circuit Court cannot dispense the authority of a superior Court and therefore any orders that require extension or varying is frozen.
4.1.4The orders otherwise were self executing without allowing or enabling the Appellant to exercise statutory rights of review.
There is nothing in the terms of the orders made by his Honour, and Ms Finch did not otherwise show by relevant evidence, that the orders made by his Honour were incapable of being complied with or had otherwise prejudiced her statutory rights of review. One of the orders made by his Honour on 4 March 2016 was that Ms Finch provide security for costs in the amount of $25,000. There is nothing about that order that was incapable of compliance and, indeed, Ms Finch has provided the security which his Honour ordered.
The orders made by his Honour were in fact amended, as mentioned above, on a successful application by Ms Finch to defer the effect of order 5 until the hearing of her application for leave to appeal or until otherwise ordered. That order was extended at the hearing of her application for leave to appeal so that order 5 made by his Honour’s order will not take effect before this decision on her application for leave to appeal. The reason for the variation of his Honour’s order was not that the order his Honour had made was incapable of compliance but to accommodate Ms Finch’s submission that she should not be required to comply with orders 2 and 3 until she had been given the opportunity to have heard her application for leave to appeal his Honour’s decision. Her argument had been that she should not be required to incur the expense and to employ the time required to comply with orders 2 and 3 of his Honour’s orders before it was known whether she was successful in her application for leave to appeal because she would have been put to an unnecessary burden if she were to succeed on her appeal. On 24 March 2016 order 5 was varied to defer its effect which would otherwise have required Ms Finch to file and serve documents before her application for leave to appeal had been heard. Ms Finch has not complied with orders 2 and 3 but the effect of dismissal of her proceeding will not take effect until this application for leave has been determined or further order. The orders themselves, however, were not incapable of being complied with nor are they inconsistent with her rights of appeal or, to use her word, of review.
A more direct challenge to his Honour’s decision was raised by the fifth ground of appeal in the application by Ms Finch for leave to appeal. Her fifth ground was expressed as follows:
The docket Judge erred by finding that the various causes of action in the Appellant’s Further Amended Statement of Claim are statute barred and an abuse of process as particularised in the draft notice of appeal where such errors were made without testing of evidence which would have lead the Judge into a different decision. The judge also was misled into the use of incorrect document by the respondent representative in making out their claim against the abuse of process resulting in a possible mistrial to that effect.
This ground was the subject of paragraph 5 in the draft notice of appeal which stated:
5 The Docket Judge Erred With Findings As to Causes of Action
5.1The docket Judge erred by finding that the various causes of action in the Appellant’s Further Amended Statement of Claim are statute barred and an abuse of process.
Particulars
5.1.1The docket Judge made an error in determination of when causes of action accrue in negligence and tort. The law stipulate that causes of action do not accrue until damages can be ascertained. The Appellant submit that on this premise all these causes of action were not statute barred.
5.1.2The docket Judge erred in finding that discoverability was in September 2009 without testing evidence as stated in the test of discoverability with qualifying evidence there was no knowing of when the Appellant actually discovered she had a legal actionable cause of action linked to her injury until having received legal advice. The docket Judge should have found that such discoverability was made after 2009.
5.1.3The docket Judge erred that the limitation period for the defamation was 1 year in circumstances where the defamatory remarks fell in the saving transition period s 46 of the Defamation Act 2005 (Vic) therefore covered by the transition act of 6 years. The docket Judge failed to consider s46(2)(c) of Defamation Act Victoria which stipulates 6 year period commences on the date of publication to causes of action that accrues after 1 January 2006.The first contingency of cause of cause of action related that was defamatory occurred in September 2005. The second and subsequent ones thereafter take in June 2006.
5.1.4The docket Judge erred in finding that the Appellant could not access the associated Jurisdiction of the Federal Court to bring all other causes of action that are associated to the central complaint in one proceeding. The docket Judge should have found that owing to s32 of the Federal Court Act the accrued jurisdiction enables the Appellant to bring other associated and related causes of action from the complaint to the Federal Court jurisdiction emphasis on cost and resource saving. Further the failure to pay the long service leave is attributed to a breach of contract by which the Appellant has pleaded in the statement of claim as such.
5.1.5The docket Judge erred by finding that the breach of contract was out of time in as afar as the statement of claim attributes to contingencies to have occurred independently in 2006, 2007,2008,2009,2010 and 2011 when the Appellant was finally terminated. Therefore each breach has to be seen as an independent cause of action which accrues time separately and independently. Under this premise the Appellant is not out of time as it follows that where there is more than one cause of action in a proceeding, causes of action may accrue at different times. See: ‘Magman International Pty Ltd v Westpac Banking Corporation’ (1992) 104 ALR 575, 593; ATPR 41-161, 40, 201 per Hill J.
5.1.6The docket Judge erred in finding that the non payment of Long Service Leave, could not be made as a constituent of breach of contract. The docket Judge ought to have found that this culminated as a breach by implication that upon termination an employee is bound to remunerate the employer completely all their legally owed interests including the Long Service Leave. Primarily such a breach, not to make a statutory payment, results in a breach of contract and a breach of statutory duty. The High Court has held that whether or not a non-federal claim is severable is a matter of practical judgment (‘Fencott v Muller’ (1983) 152 CLR 570 at 610), with the result that related non-federal claims are rarely defeated for want of jurisdiction. The above test is applied by the Court and a decision reached as to whether the Court has accrued jurisdiction as outlined in the case of ‘Re Wakim; Ex parte McNally’ (1999) HCA, where the findings made were that where there is a conflict between state and federal jurisdictions, the Federal Court was held to have such accrued jurisdiction.
5.1.7The docket Judge erred by finding that causes of action accrues when there is a breach of s52 of the TPA however it is established principle that causes of action do not accrue until damage and or loss has ben ascertained. See: ‘Wardley Australia Ltd v State of Western Australia’ (1992) 175 CLR 514.
5.1.8The docket Judge erred by finding that the Appellant did not plead repudiation of contract therefore instead of conferring the Appellant the opportunity to re-plead struck out the claim due to that inadequacy in pleading. The docket Judge should have offered the Appellant the opportunity as a lay person to re-plead on that basis.
5.1.9The docket Judge erred by finding that VCAT was a Court of proper jurisdiction to ventilate the causes of action when it is closed to him that VCAT has no such jurisdiction.
5.1.10The docket Judge erred by finding that the causes of action struck out could have been brought at VCAT but this action did not occur or otherwise could not be actionable during the time of the proceedings at the tribunal and could not be ventilated at that time therefore.
5.1.11The docket Judge erred in finding that VCAT was a jurisdiction capable of dealing with causes of action that he further strike out as an abuse of process. VCAT was not a “Court” pursuant to s86 of the TPA. Further VCAT has not been given jurisdiction over general common law or equitable claims. Further vcat has no accrued or ancillary jurisdiction over matters “associated” with matters in which VCAT’s undoubted jurisdiction is invoked, not withstanding the inadequacy of the Tribunal jurisdiction the amount of damages sought by the Appellant could not be accommodated within VCAT jurisdiction and the matter would have had to be refereed to a federal jurisdiction. But being that these actions were not actionable at that time as the causes of action had not crystallised or occurred their persecution was not possible, and further with consideration the Appellant was not terminated at the time of the VCAT proceedings.
5.1.12The docket Judge therefore erred in his formulation of the principles governing abuse of process and in his view of the circumstances in which the proceeding would be summary dismissed. The abuse of process test warrants the test of instituting a proceeding for an improper purpose. His Honour, did not concede that the proceedings was instituted for an improper purpose. See: ‘Williams v Spautz’ [1992] HCA 34; (1992) 174 CLR 509 (27 July 1992) [11].
Fundamental to the matters raised by this ground of appeal is whether his Honour erred in determining whether some causes of action had been statute‑barred and in determining whether the matters which Ms Finch sought to raise in the Federal Court proceedings were an abuse because they had been dealt with in other proceedings. The principal difficulty for Ms Finch in relation to this ground, however, is that his Honour’s decision was based upon an exercise of judicial discretion by reference to the form and state of the pleadings Ms Finch had sought to rely upon. It is true that his Honour considered questions concerning whether some of the claims she sought to maintain were statute‑barred, but the basis of his Honour’s exercise of discretion was the form and state of her pleadings.
The test to determine whether his Honour erred in the exercise of judicial discretion is that found in House v The King (1936) 55 CLR 499 in which at 504-5 of the joint judgment it was said:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. Unlike courts of criminal appeal, this court has not been given a special or particular power to review sentences imposed upon convicted persons. Its authority to do so belongs to it only in virtue of its general appellate power. But even with respect to the particular jurisdiction conferred on courts of criminal appeal, limitations upon the manner in which it will be exercised have been formulated. Lord Alverstone L.C.J. said that it must appear that the judge imposing the sentence had proceeded upon wrong principles or given undue weight to some of the facts (R. v. Sidlow). Lord Reading L.C.J. said the court will not interfere because its members would have given a less sentence, but only if the sentence appealed from is manifestly wrong (R. v. Wolff). Lord Hewart L.C.J. has said that the court only interferes on matters of principle and on the ground of substantial miscarriage of justice (R. v. Dunbar). See, further, Skinner v. The King and Whitiaker v. The King.
(Footnotes omitted.)
An appeal by Ms Finch from his Honour’s order must, to succeed, show error in this sense.
Ms Finch drew attention to the fact that her causes of action in the Federal Court were different from the complaint that she had made in VCAT. His Honour was aware of that and at [95] said:
It is true that the applicant’s case in VCAT relied only on the EO Act, whereas she relies now on the common law of negligence, on contract, on the TP Act, on the OHS Act and on the law of defamation. However, any viable cause of action that the applicant had in any of these areas was available to her when she commenced, and prosecuted, her proceeding under the EO Act. I was not addressed on the question whether VCAT had jurisdiction to adjudicate on the causes of action upon which the applicant now relies; nor, for that matter, upon the question whether there was a court that had jurisdiction to adjudicate on those causes of action as well as on the applicant’s claim under the EO Act. But, assuming, favourably for the applicant, that there was no means by which she could, contemporaneously, have relied on all those other causes of action and on the EO Act, I would nonetheless hold it to be vexatious, and in that sense an abuse of process, for her now to repackage what are substantially, if not wholly, the same issues and irritations on which she lost in VCAT as an ostensibly fresh proceeding in this court.
His Honour had earlier in his reasons for judgment analysed in some detail the nature of the complaints which Ms Finch had sought to raise in the proceedings in the Federal Court through her application and the further amended statement of claim. His Honour was aware that the complaints sought to be raised by Ms Finch in the Federal Court proceedings were different causes of actions from the cause of action in the complaint that she had made in VCAT. He concluded, however, that it would be “vexatious, and in that sense an abuse of process, for [Ms Finch] now to repackage what are substantially, if not wholly, the same issues and irritations on which she lost in VCAT as an ostensibly fresh proceeding in this Court”. The submissions by Ms Finch in her application for leave to appeal that her claims in the Federal Court were different causes of action from the complaint brought in VCAT, therefore, do not address the basis upon which his Honour exercised the judicial discretion to prevent Ms Finch from maintaining those separate causes of action in the Federal Court in light of the same underlying complaint having been pursued and lost by Ms Finch in VCAT. An operative reason for his Honour exercising the discretion in favour of the respondents, and against Ms Finch, was that the form of the further amended statement of claim was a pleading which his Honour considered was likely to cause prejudice, embarrassment or delay in the proceeding contrary to r 16.21(1)(d) of the Rules. At [97] his Honour said:
Aside from the problems to which I have referred to date, the respondents objected to the Further Amended Statement of Claim as a pleading on the ground that it was likely to cause prejudice, embarrassment or delay in the proceeding: r 16.21(1)(d). This objection is well-founded. Whether or not an underlying cause of action might be discerned, I would never allow a document such as the Further Amended Statement of Claim to stand as the factual basis of litigation in this court; nor would I require the respondents to plead to it.
It is unnecessary to consider, therefore, many of the individual matters raised by Ms Finch in support of her ground of appeal. It is unnecessary to consider the detail of whether his Honour was incorrect in his conclusion about many of the causes of action being statute‑barred. Nor is it necessary to consider some of the other matters raised in her submissions such as that in paragraph 5.1.7 and whether the complaint in that paragraph could possibly be made out in light of his Honour’s observation at [79] of being prepared to perceive in her proceeding allegations favourable to Ms Finch.
The sixth ground in the application by Ms Finch for leave to appeal related to the order made by his Honour that Ms Finch provide security for costs. The sixth ground in the application was stated as follows:
The docket Judge erred in improper exercise of his discretion by awarding security of cost where there was no defence to rely on in exercising such discretion, there was no defence to base such exercise of that discretion , the estimation was flawed based on a statement or a claim that was none existence at that point in time. The judge ignored the applicant evidence via an affidavit on her income and the stifling effect to her claims. Further particulars on how the judge fell into this point of appeal are articulated in the draft notice of appeal.
The proposed ground of appeal dealing with this ground in her application for leave stated:
6The docket Judge erred and wrongly exercised discretion when ordering security for costs
6.1The docket Judge made an error in awarding security of cost of 25,000.00 in circumstances where it was not proper to exercise that discretion against an individual person.
Particulars
6.1.1The docket Judge erred in improper exercise of his discretion by awarding security of cost where there was no defence to rely on in exercising such discretion. Further it was a flaw to base security of cost on a statement or a claim that was none existence. The docket Judge ought to have found it that the FCC ought to have dealt with that calculation and award on the statement of claim drafted at that Court. Otherwise it was improper to award security of cost where on a statement of claim that has just been summarily dismissed.
6.1.2The docket Judge erred in awarding security of costs where the Court generally require evidence by which it might estimate the defendant’s probable recoverable costs see Gujarat NRE Australia Pty Ltd v Williams[2006] NSWSC 1131; Western Export Services Inc v Jireh International Pty Limited [2008] NSWSC 601. Such estimate are out of mere speculation. By raft of approximation if $50,000 sought was for five cause of action therefore the 1 cause of action left ought to be 1/5 of the $50,000. To avoid any speculation rather than merely diving the estimate in the middle.
6.1.3The docket Judge erred in refusing to allow the Appellant the opportunity to tender evidence in regards to her income as she held the burden of proof of demonstrating why an order against her should not be made.
6.1.4The docket Judge erred in finding that the Appellants husband income had to be produced as evidence and was missing but by the evidence of the affidavit of the Appellant therein lays sufficient evidence of income. There is no requirement of any test which require spouse’s income to be leverage in subjecting Appellant to the burden of security of cost or otherwise.
6.1.5The docket Judge erred in finding that the Appellant had refused to enter into an agreement with the Respondents to pay its undetermined costs, without any evidence of such refusal by her.
6.1.6The docket Judge erred in holding the security of cost application in circumstances where there was no defence.
6.1.7The docket Judge erred in failing to follow and apply the decision of Mortimer J in ‘Kiefel v Victoria’ [2014] FCA 604, especially at [34] and [40] or to have regard to the public interest in not barring access of individuals, regardless of poverty, to the Court with legitimate complaints within jurisdiction.
6.1.8The Judge failed to consider the evidence of the Appellant that her financial position had been caused or contributed to by the conduct of the Respondents was ‘never considered nor contested by the Respondents, nor with any evidence.
6.1.9The docket Judge erred in finding that the proposed order was objectively reasonable and would not stultify the proceedings, without considering the evidence including the medical and financial evidence provided by the Appellant and the affidavit of evidence.
6.1.10The docket Judge’s exercise of discretion was otherwise miscarried.
6.1.11The docket Judge erred in holding that the Appellant pay security of cost on none existence pleading and statement of claim purely based on speculation on behalf of FCC where security of cost against Appellant under the referral of the HREOC (Disability Discrimination Certificate) was not generally made.
6.1.12The docket Judge erred in law in holding that the Respondents is entitled to ‘protection ... for its existing and future costs’. where the existing cost is subject to a separate proceeding in another jurisdiction of which there is a foreshadowed fraud investigation by the Victorian Police that it was begotten by perjury and fraud.
6.1.13The cost awarded at the another proceeding of $180,000.00 in the previous proceedings was not a factor as the Appellant is and has been in communication with the insurer about probable modes of its settlement, and the Respondents have not enforced such costs. See: ‘Drury V Andreco Hurll Refractory Services Pty Ltd’ (No. 4) [2005] FCMA 1226.
The submissions by Ms Finch were that his Honour erred in awarding security for costs as he did, but Ms Finch did not identify any error of the kind considered in House v The King in relation to the exercise of the Court’s discretion to award security for costs.
Ground 5 in the application by Ms Finch relied again on alleged failures by the legal representatives of the respondents in the conduct of the proceedings. Ms Finch specifically referred in that regard to misleading the Court by purportedly relying upon certain incorrect documents. However the particulars relied upon by Ms Finch did not bear upon the costs incurred or ordered by his Honour. It was irrelevant to his Honour’s decision on costs whether or not there had been reliance by the respondents upon three documents which were described by Ms Finch as being misleading and deceptive. However, if the fact of the documents being misleading or deceptive was relevant to his Honour’s decision on costs, the circumstances concerning those documents was dealt with and explained in the affidavit of Ms Prpich sworn 10 May 2016 and by her subsequent evidence which Ms Finch sought to test by cross-examination. There is no substance in the suggestion by Ms Finch that any of the costs awarded by his Honour was occasioned by the misconduct particularised by Ms Finch.
In the circumstances there is insufficient reason to doubt the correctness of his Honour’s decision on costs to warrant the extension of time sought by Ms Finch and it is unnecessary to consider whether Ms Finch has provided a sufficient explanation for the delay. The consequences of refusing to grant an extension of time will be that Ms Finch will no longer be able to appeal the costs decision and will be required to pay the costs to be taxed in accordance with that decision.
Accordingly, the applications will be dismissed.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Pagone. Associate:
Dated: 3 February 2017
SCHEDULE OF PARTIES
VID 243 of 2016
VID 457 of 2016Respondents
Fourth Respondent:
ADAM WHITE
Fifth Respondent:
JOHN SIMCOCKS
Sixth Respondent:
DARREN SCOTTI
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