Kancheff v Charles Darwin University - [2013] FCA 1252

FEDERAL COURT OF AUSTRALIA
Kancheff v Charles Darwin University [2013] FCA 1252

Citation:
Kancheff v Charles Darwin University [2013] FCA 1252

Appeal from:

Application for leave to appeal: Kancheff v Charles Darwin University & Ors [2013] FCCA 1564

Parties: GAVIN MICHAEL KANCHEFF v CHARLES DARWIN UNIVERSITY, GRAHAM PEGG and DAN BASCHIERA

File number: SAD 308 of 2013

Judge: BESANKO J

Date of judgment: 25 November 2013

Catchwords:
PRACTICE AND PROCEDURE – Application by applicant for leave to appeal – where Federal Circuit Court Judge made an order that the applicant pay security of costs – whether, in all the circumstances, the decision is attended with sufficient doubt – whether substantial injustice would result if leave were refused.

Held: The application for leave to appeal be dismissed.

Legislation: Disability Discrimination Act 1992 (Cth) ss 4, 5
Disability Discrimination and Other Human Rights Legislation Amendment Act (2008) (Cth)
Federal Circuit Court of Australia Act 1999 (Cth) s 80
Federal Circuit Court Rules 2001 (Cth) r 21.01
Federal Court of Australia Act 1976 (Cth) s 25(2)
Human Rights and Equal Opportunity Commission Act 1986 (Cth)

Cases cited:
Coulton v Holcombe (1986) 162 CLR 1
Decor Corporation Pty Ltd and Another v Dart Industries Inc (1991) 33 FCR 397
Equity Access Limited v Westpac Banking Corporation (1989) ATPR 40-972
House v King (1936) 55 CLR 499
Instyle Contract Textiles Pty Ltd v Good Environmental Choice Services Pty Ltd and Others (2009) 181 FCR 360
Kancheff v Charles Darwin University & Ors [2013] FCCA 1564
Lucas v Yorke & Anor (1983) 58 ALJR 20
Merribee Pastoral v ANZ Banking Group [1998] HCA 41; (1998) 193 CLR 502
Purvis v NSW (Department of Education) (2003) 78 ALJR 1
Spencer v The Commonwealth of Australia (2010) 241 CLR 118

Date of hearing: 19 November 2013

Place: Adelaide

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 37

Counsel for the Applicant: The Applicant appeared in person

Counsel for the Respondents: Mr A Short

Solicitor for the Respondents: Minter Ellison Lawyers

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

SAD 308 of 2013

BETWEEN:
GAVIN MICHAEL KANCHEFF
Applicant

AND:
CHARLES DARWIN UNIVERSITY
First Respondent

GRAHAM PEGG
Second Respondent

DAN BASCHIERA
Third Respondent

JUDGE:

BESANKO J

DATE OF ORDER:

25 NOVEMBER 2013

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:
1.The application for leave to appeal be dismissed.

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

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

SAD 308 of 2013

BETWEEN:
GAVIN MICHAEL KANCHEFF
Applicant

AND:
CHARLES DARWIN UNIVERSITY
First Respondent

GRAHAM PEGG
Second Respondent

DAN BASCHIERA
Third Respondent

JUDGE:

BESANKO J

DATE:

25 NOVEMBER 2013

PLACE:

ADELAIDE

REASONS FOR JUDGMENT
INTRODUCTION

On 27 July 2011, Gavin Michael Kancheff commenced a proceeding in the Federal Circuit Court against Charles Darwin University, Professor Graham Pegg and Mr Dan Baschiera. On 29 August 2012 the respondents issued an application seeking an order that the applicant pay security…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Kancheff v Charles Darwin University and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2013] FCA 1252
Decision Date: 25 November 2013

CaseChat Overview and Summary

The matter of Kancheff v Charles Darwin University was heard in the Federal Circuit Court of Australia, where the applicant, Kancheff, sought leave to appeal against an order made by the Federal Circuit Court Judge that required the applicant to pay a security of costs. The applicant contended that he was not provided with an adequate opportunity to present evidence in support of his application. The court was tasked with determining whether the decision was accompanied by sufficient doubt to warrant an appeal and whether a substantial injustice would arise if leave to appeal were refused.

The court considered the applicant's argument that he was not given an adequate opportunity to put forward evidence. The Judge had, however, specifically asked the applicant to identify the affidavit material he relied upon. Furthermore, the Judge was conscious of the need to exercise caution as a full or clear statement of the applicant's case might only become evident at a later stage of the proceedings, such as during oral evidence or before the trial. The court found that the Judge's approach was reasonable and did not result in any substantial injustice to the applicant.

Given the circumstances, the court held that the application for leave to appeal should be dismissed. The decision was not attended with sufficient doubt to warrant an appeal, and the applicant had not demonstrated that a substantial injustice would result if leave to appeal were refused. The court concluded that the Judge's handling of the application was appropriate, and the applicant's concerns about the opportunity to present evidence were not well-founded.

The court's final order was that the application for leave to appeal be dismissed. The entry of orders was governed by Rule 39.32 of the Federal Court Rules 2011. This decision underscores the importance of the trial judge's discretion in managing the proceedings and the need for applicants to demonstrate substantial injustice to successfully challenge such decisions.

Orders

Orders of the court

1. The application for leave to appeal be dismissed.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In his written submissions, the applicant complained that he was not given an adequate opportunity to put forward evidence in relation to the application. There are two answers to that contention. First, the Judge specifically asked the applicant to identify the affidavit material he relied upon (at [22] – [30]). Secondly, and more importantly, the Judge was aware of the need to be cautious because a full or clear statement of the applicant’s case may not emerge until oral evidence has been given or the proceedings have advanced to some further stage antecedent to trial (at [19], [28], [94]).CONCLUSION The application for leave to appeal must be dismissed.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citation:		Kancheff v Charles Darwin University [2013] FCA 1252
Appeal from:		Application for leave to appeal: Kancheff v Charles Darwin University & Ors [2013] FCCA 1564
Parties:		GAVIN MICHAEL KANCHEFF v CHARLES DARWIN UNIVERSITY, GRAHAM PEGG and DAN BASCHIERA
File number:		SAD 308 of 2013
Judge:		BESANKO J
Date of judgment:		25 November 2013
Catchwords:		PRACTICE AND PROCEDURE – Application by applicant for leave to appeal – where Federal Circuit Court Judge made an order that the applicant pay security of costs – whether, in all the circumstances, the decision is attended with sufficient doubt – whether substantial injustice would result if leave were refused. Held: The application for leave to appeal be dismissed.
Legislation:		Disability Discrimination Act 1992 (Cth) ss 4, 5 Disability Discrimination and Other Human Rights Legislation Amendment Act (2008) (Cth) Federal Circuit Court of Australia Act 1999 (Cth) s 80 Federal Circuit Court Rules 2001 (Cth) r 21.01 Federal Court of Australia Act 1976 (Cth) s 25(2) Human Rights and Equal Opportunity Commission Act 1986 (Cth)
Cases cited:		Coulton v Holcombe (1986) 162 CLR 1 Decor Corporation Pty Ltd and Another v Dart Industries Inc (1991) 33 FCR 397 Equity Access Limited v Westpac Banking Corporation (1989) ATPR 40-972 House v King (1936) 55 CLR 499 Instyle Contract Textiles Pty Ltd v Good Environmental Choice Services Pty Ltd and Others (2009) 181 FCR 360 Kancheff v Charles Darwin University & Ors [2013] FCCA 1564 Lucas v Yorke & Anor (1983) 58 ALJR 20 Merribee Pastoral v ANZ Banking Group [1998] HCA 41; (1998) 193 CLR 502 Purvis v NSW (Department of Education) (2003) 78 ALJR 1 Spencer v The Commonwealth of Australia (2010) 241 CLR 118
Date of hearing:	19 November 2013
Place:	Adelaide
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	37
Counsel for the Applicant:	The Applicant appeared in person
Counsel for the Respondents:	Mr A Short
Solicitor for the Respondents:	Minter Ellison Lawyers

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	SAD 308 of 2013

JUDGE:	BESANKO J
DATE OF ORDER:	25 NOVEMBER 2013
WHERE MADE:	ADELAIDE

JUDGE:	BESANKO J
DATE:	25 NOVEMBER 2013
PLACE:	ADELAIDE