Gabriel Kuek v The Honourable Justice Peter Ross Awdry Gray, A Judge of the Federal Court of Australia

[2013] HCASL 133

GABRIEL KUEK

v

THE HONOURABLE JUSTICE PETER ROSS AWDRY GRAY, A JUDGE OF THE FEDERAL COURT OF AUSTRALIA & ORS

[2013] HCASL 133
M113/2012

1. This is an application for leave to appeal from the judgment of Hayne J dismissing the applicant's amended application for an order to show cause[1].

   [1]Judiciary Act 1903 (Cth), s 34(2).

2. The applicant is a solicitor.  The applicant claimed relief in relation to an order made by the first respondent, Gray J, requiring the applicant to pay personally certain costs in proceedings brought by the second respondent against the third respondent. 

3. On 16 May 2012, Jessup J refused the applicant leave to appeal from the orders made by the first respondent[2].

   [2]Federal Court of Australia Act 1976 (Cth), s 24(1A).

4. By his amended application the applicant claimed:  mandamus directed to the first respondent; certiorari to quash the costs order and a consequential order; a declaration that the costs order was and is "null, and void"; and an injunction restraining the second and third respondents from enforcing the order.

5. Hayne J identified evident difficulties in the claims for mandamus, the declaration and the injunction (unless and until the costs order was set aside).  His Honour's reasons were directed to the claim for certiorari. 

6. The amended application claimed relief on four grounds.  The first ground asserted a denial of procedural fairness in the making of the costs order.  The second ground was best understood as particularisation of that challenge.  The applicant was on notice that a personal costs order might be made.  He led evidence and made submissions in opposition to the making of the order.  Hayne J distilled the  procedural fairness challenge as a claim that the proceedings were unfair because the applicant was unable to place all relevant material before the Court in circumstances in which his client maintained his claim to legal professional privilege.  Hayne J said that the application of the rules of evidence, according to their tenor, could not constitute a denial of procedural fairness[3].  His Honour noted that a related complaint – that Gray J had not taken adequate account of the difficulties presented by the client's insistence on the privilege[4] – had been rejected by Jessup J.

   [3][2012] HCATrans 273 at 1185-1186.

   [4]See Medcalf v Mardell [2003] 1 AC 120.

7. The third ground of the amended application contended that it had not been open to exercise the jurisdiction to make the costs order.  The fourth ground asserted that Gray J misconstrued the nature and scope of the power to make a personal costs order under the Federal Court of Australia Act 1976 (Cth)[5].  Hayne J held that neither ground advanced a sustainable allegation of jurisdictional error[6].

   [5]Section 43(3)(f).

   [6][2012] HCATrans 273 at 1203-1206.

8. The applicant submits that Hayne J erred by failing to take into account matters that are particularised in the first ground of appeal in the present application.  None of them are matters that bear on the assessment that the applicant had not demonstrated an arguable case of jurisdictional error.  The applicant's second ground assumes that Hayne J determined the application upon an understanding that his discretion was fettered.  The assumption is misconceived.  So, too, is ground three, which is a variant of one of the particulars of the second ground.  The fifth and sixth grounds are variants of the first.  The seventh ground asserts that Hayne J erred in concluding that ground three of the amended show cause application did not disclose an arguable ground of jurisdictional error.  It is unsustainable. 

9. Ground four complains that Hayne J erred in finding that the applicant had not relied on the grounds set out in his show cause application when applying for leave to appeal before Jessup J.  His Honour's conclusion was an inference fairly based on Jessup J's reasons.  The Notice of Appeal was not in evidence.  The applicant did not apply to have the proceedings stood over in order to place it or any other material before the Court.  Moreover, the conclusion was unnecessary to Hayne J's assessment that the applicant had not demonstrated an arguable case of jurisdictional error in making the order.  Nothing filed in support of the leave application calls into question the correctness of that conclusion.  If leave to appeal were granted the appeal would have no prospect of success.

10. None of the grounds in the leave application identify an arguable basis for challenging Hayne J's determination.

11. The application is dismissed.

12. Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application with costs. 

V.M. Bell
14 August 2013 S.J. Gageler