Gill v iiNet Limited

Case [2016] FCA 1273

FEDERAL COURT OF AUSTRALIA

Gill v iiNet Limited [2016] FCA 1273

File number: VID 719 of 2015
Judge: KENNY J
Date of judgment: 28 October 2016
Catchwords: PRACTICE AND PROCEDURE – Application for extension of time and leave to appeal against interlocutory decision and orders of a single judge of the Federal Court – Held: application dismissed
Legislation:

Australian Human Rights Commission Act 1986 (Cth)

Disability Discrimination Act 1992 (Cth)

Federal Court of Australia Act 1976 (Cth)

Federal Court Rules 2011 (Cth)
Cases cited:

Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd [1999] FCA 1151; 95 FCR 292

Budd v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs  [2009] FCA 1138

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

Deighton v Telstra Corporation Ltd [1997] FCA 1568

Gallo v Dawson [1990] HCA 30; 93 ALR 479

Gill v iiNet Limited [2015] FCA 1029

Glennan v Commissioner of Taxation [2003] HCA 31; 198 ALR 250

Mentink v Minister for Home Affairs [2013] FCAFC 113

Minus v Selth [2016] FCA 834

Mowen v Australian Electoral Commission [2016] QCA 152

Pham v Secretary, Department of Employment and Workplace Relations [2007] FCAFC 179

Re Commissioner of Department of Corrective Services; Ex parte Santos [2016] WASC 139

Re CSR Ltd [2010] FCAFC 34; 183 FCR 358

Re Finlayson; Ex parte Finlayson (1997) 72 ALJR 73

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

Shaw v MAB Corporation Pty Ltd [2014] FCA 62; 220 FCR 425

Wang v Botany View Hotel [2014] FCA 730

Date of hearing: 10 February 2016
Registry: Victoria
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 50
The Applicant appeared in person
The Respondent did not appear

ORDERS

VID 719 of 2015
BETWEEN:

DENNIS MALCOLM GILL

Applicant
AND:

iiNET LIMITED

Respondent

JUDGE:

KENNY J

DATE OF ORDER:

28 OCTOBER 2016

THE COURT ORDERS THAT:

1.The application lodged on 2 November 2015 be dismissed.

2.There be no order as to costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

KENNY J:

INTRODUCTION

  1. The applicant, Dennis Malcolm Gill, seeks an extension of time in which to seek leave to appeal, and leave to appeal, from interlocutory orders of a single judge of the Court delivered on 7 September 2015.  Those orders dismissed a proceeding instituted by Mr Gill on the basis that Mr Gill had failed to comply with an order of the Court and on the basis that Mr Gill had failed to prosecute the proceeding with due diligence. 

  2. In support of his applications, Mr Gill relied on two affidavits, both affirmed by him on 2 November 2015. One affidavit had 11 annexures. The other affidavit had five annexures and was filed in support of a Notice of a Constitutional Matter. Although no affidavits of service were filed by Mr…

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Gill v iiNet Limited [2016] FCA 1273
Case
[2016] FCA 1273
Decision Date

CaseChat Overview and Summary

Gill v iiNet Limited was a case before the Federal Court of Australia, where the plaintiff, Mr. Gill, sought to appeal against an interlocutory decision and orders made by a single judge of the court. The dispute arose from Mr. Gill's complaint that his internet service provider, iiNet Limited, discriminated against him on the basis of his disability. The complaint was dismissed by the Australian Human Rights Commission, and Mr. Gill sought to challenge the decision in the Federal Court. The respondent filed an interlocutory application seeking various orders, including that the proceeding be dismissed for the applicant's failure to comply with a court order to serve a statement of claim and failure to prosecute the proceeding with due diligence. The court dismissed the proceeding and Mr. Gill subsequently filed an application for an extension of time to seek leave to appeal the decision.
The court was required to decide whether to grant an extension of time for Mr. Gill to file a notice of appeal against the interlocutory decision. The court considered the relevant principles and factors that should be taken into account in deciding whether to grant an extension of time, including the merits of the proposed application for leave to appeal, whether there is an adequate explanation for the delay, and any undue prejudice to the respondent if the court were to extend time. The court also noted that before leave to appeal will be given, an applicant must show that the relevant interlocutory order or judgment was attended with sufficient doubt to warrant its being reconsidered by an appellate court and that substantial injustice would result if leave were refused, supposing the decision to be wrong.
The court found that Mr. Gill's application for an extension of time was not made in conformity with the required form and, as a result, was not a valid application. The court deemed the application an application under rule 35.14 for an extension of time in which to seek leave to appeal and leave to appeal. However, the court found that the application should be dismissed as there was no adequate explanation for the delay and that granting an extension of time would result in undue prejudice to the respondent. The court also found that the merits of the proposed application for leave to appeal were not sufficient to warrant an extension of time.
In conclusion, the application for an extension of time to seek leave to appeal was dismissed. The court found that the application was not made in conformity with the required form and that the reasons for dismissing the application also applied to dismissing the application for leave to appeal. The court did not make any order as to costs.

Orders

Orders of the court

1. The application lodged on 2 November 2015 be dismissed.

2. There be no order as to costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

For the reasons that follow, I would decline to extend the time in which to seek leave to appeal. It follows that the application lodged on 2 November 2015 will be dismissed. PROCEDURAL BACKGROUND The procedural history is relevant to the orders that Mr Gill desires to challenge and the outcome of his present applications. On 23 October 2014, Mr Gill sought to commence a proceeding in this Court by originating application under the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) pursuant to r 34.163(1) of the Rules. Mr Gill filed that application following his receipt of a Notice of Termination of a complaint by him alleging unlawful discrimination under the Disability Discrimination Act 1992 (Cth). The Notice of Termination was issued on 5 August 2014 under s 46PH(2) of the AHRC Act by a delegate of the President of the Australian Human Rights Commission (AHRC) on the ground that the delegate was satisfied that there was no reasonable prospect of the matter being settled by conciliation. In his original complaint to the AHRC (which was filed on 9 April 2014), Mr Gill stated that the respondent was his internet service provider and that he was complaining because he believed that the respondent discriminated against him on account of his disability. In his complaint, in answer to the question “[w]hat is your disability?”, Mr Gill stated:Injury to both hips, both shoulders, lumbar, & severe injury to cervical spine & respiratory problems. In his complaint, in answer to the question “[w]hen did the alleged event(s) happen?”, Mr Gill wrote:I am unable to access 50% of my internet entitlement. I pay for 500 gig peak time, & have a further 500gig entitlement that I am no[t] able to access during the hours 2 – 8 am daily due to my severe disabilities. Iinet claim they only provide a 1-size-fits-all policy saying I can go elsewhere if I don’t like their policy.Iinet do have a good infrastructure [Telstra is the alternative, in my area it is a substandard service available to all other ISP’s], iinet know what they provide is much better quality service and charge extra for it.I have been with Neighborhood Cable, bought out by TransAct, bought out by iinet for many years. I have complained about my disability problems many times, however my pain levels have increased considerably since Sept 2013.I was finally transferred to iinet by TransAct in Nov 2013. Since then I have had access and service problems [currently with TIO, escalated to higher level today]. In the same document, in answer to the question, “[w]hat happened?”, Mr Gill replied:I am unable to sit and access the internet for more than 1 hour, due to severe hip, shoulder and neck pain. I have been warned that if I move my neck the wrong way [no-body seems to know what way that is] I could drop a quadriplegic.I have extreme sleeping problems where I may only get 4-5 hours actual sleep a night, usually between 6 – 10 am. And odd moments before then. I only have a few seconds before the shoulders & neck become to[o] painful to lay on, if I lay on my back, I have breathing problems.During day time [peak times under iinet] I can come & go many times during the day. I am suffering severe ‘pins-n-needles’ numbness & burning in my neck & shoulders while completing this application, mainly due to the damage to my central nervous system. I have not been able to contact any staff who have any jurisdiction for my problems, most say I & they can do nothing about the plans as that is all they provide....

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

On 3 September 2015, the respondent filed an interlocutory application seeking various orders, including an order under r 5.23(1)(b) of the Rules that the proceeding be dismissed on the basis that the applicant failed to comply with an order of the Court made on 10 July 2015 which required him to serve a statement of claim by 28 August 2015 and, in the alternative, an order under r 5.23(1)(b) that the proceeding be dismissed on the basis that the applicant failed to prosecute the proceeding with due diligence within the meaning of r 5.22 of the Rules. This application was supported by an affidavit of the respondent’s solicitor, Ms Mummé. THE DECISION UNDER CHALLENGE The respondent’s application was heard on 7 September 2015 and Justice North delivered interlocutory judgment and reasons that day. The respondent appeared by counsel and Mr Gill appeared in person. Having heard the parties, his Honour made orders dismissing the proceeding under r 5.23(1)(b) of the Rules on the basis that Mr Gill had failed to comply with Order 1 of the orders of the Court made on 10 July 2015 (which had required him to serve a statement of claim by 28 August 2015); and on the basis that Mr Gill had failed to prosecute the proceeding with due diligence within the meaning of r 5.22 of the Rules. His Honour’s reasons for judgment set out the background to the respondent’s application and also described the content of the email of 28 August 2015 and its attachments. These reasons concluded at [16]-[18] as follows:The email from the applicant dated 28 August 2015 is not a statement of claim. To the extent that it challenges the establishment of the legal system in Australia, it is quite irrelevant to any issue before the Court. To the extent that it refers to the original disability discrimination claim, it is not comprehensible. The applicant has had three opportunities to articulate a claim. The proceeding has been on foot from October 2014 and it is unjust and unfair to expect that the respondent continue to attend the proceedings in the Court for a claim which is not put forward in a way which either conforms to the requirements of the Rules or makes any sense.The respondent has established that the proceedings should be dismissed, both for the failure of the applicant to comply with the order made on 10 July 2015 to file and serve a statement of claim and because the applicant has failed to prosecute the proceeding with due diligence. Consequently, the proceeding will be dismissed with costs. APPLICATION FOR AN EXTENSION OF TIME TO SEEK LEAVE TO APPEAL On 2 November 2015, Mr Gill electronically lodged an application for an extension of time in which to file a notice of appeal. He used Form 67. Rule 36.05(1) stipulates that an application for an extension of time to file a notice of appeal must be made in accordance with this form. Also on that day, Mr Gill electronically lodged an affidavit affirmed by him on 2 November 2015 and provided the Court with a draft Notice of Appeal.

Ratio Decidendi

Legal Principle Established

An application for an extension of time in which to seek leave to appeal must be made in conformity with Form 118, not Form 67: see r 35.14 of the Rules. To regularise Mr Gill’s application, orders were made on 2 December 2015 that Mr Gill’s application for an extension of time be deemed an application under r 35.14 for an extension of time in which to seek leave to appeal and leave to appeal. CONSIDERATION Rule 35.14(1) of the Rules provides that “[a] person who wants to apply for an extension of time to seek leave to appeal must file an application ...”. An extension may be granted under r 35.14 of the Rules in accordance with the accepted principles: see s 37M of the Federal Court of Australia Act;Gallo v Dawson [1990] HCA 30; 93 ALR 479 at 480-481 and Mentink v Minister for Home Affairs [2013] FCAFC 113 at [33]-[38]. Whilst the exercise of the power is discretionary, it must be exercised judicially. The result of an application for an extension of time in which to apply for leave to appeal depends on the particular circumstances of the case: see, for example, Mentink at [33]-[38]. Relevant considerations include: (1) the merits of the proposed application for leave to appeal to justify the extension of time; (2) whether there is an adequate explanation for the delay; and (3) any undue prejudice to a respondent if the Court were to extend time. See, for example, Minus v Selth [2016] FCA 834 at [14]; Deighton v Telstra Corporation Ltd [1997] FCA 1568; Shaw v MAB Corporation Pty Ltd [2014] FCA 62; 220 FCR 425 at [32]-[33]; Wang v Botany View Hotel [2014] FCA 730 at [13]; and Budd v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] FCA 1138 at [7]. As to the prospects of obtaining leave to appeal, it should be borne in mind that, before leave to appeal will be given, an applicant for leave must show that, in all the circumstances, the relevant interlocutory order or judgment was attended with sufficient doubt to warrant its being reconsidered by an appellate court and that substantial injustice would result if leave were refused, supposing the decision to be wrong: see Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 399; and Re CSR Ltd [2010] FCAFC 34; 183 FCR 358 at [5]. Plainly enough, the factors relevant to whether to extend time in which to apply for leave to appeal overlap with the factors relevant to whether leave to appeal should be granted. Lindgren J observed in Sharman License Holdings Ltd v Universal Music Aust Pty Ltd [2005] FCA 802 at [20], “[i]n practice, the debate and treatment of the ‘arguable error’ question on an application for an extension of time, will be no different from what the debate and treatment of it would be on the application for leave to appeal itself”. Although the initial question is here is whether an extension of time should be granted, the reasons that lead me to refuse the application for an extension of time would, so far as they relate to the first and second limbs of the test for leave to appeal, also lead me to dismiss Mr Gill’s application in so far as it seeks leave to appeal.