Kennedy v Secretary, Department of Industry
[2016] FCA 1251
•21 October 2016
FEDERAL COURT OF AUSTRALIA
Kennedy v Secretary, Department of Industry [2016] FCA 1251
Appeal from: Application for extension of time and leave to appeal: Kennedy v Secretary, Department of Industry [2016] FCA 485 File number: ACD 44 of 2016 Judge: WIGNEY J Date of judgment: 21 October 2016 Catchwords: ADMINISTRATIVE LAW – application for extension of time and leave to appeal from an interlocutory judgment – judgment of case management judge – where judgment refused an extension of time and adjournment of proceedings – whether there is a satisfactory explanation for the delay – whether the application has reasonable prospects of success – where grounds of appeal not properly particularised – whether there was a denial of procedural fairness – whether the test for confidential information was misapplied – whether the principles to restrain a law firm from acting were misapplied
PRACTICE AND PROCEDURE – suppression orders – Federal Court of Australia Act 1976 (Cth) s 37AF – whether suppression orders necessary to prevent prejudice to the proper administration of justice – where exhibits tendered are scandalous and vexatious
Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth), s 13
Federal Court of Australia Act 1976 (Cth), ss 24(1A), 25(2), 37AF, 37M
Federal Court Rules 2011 (Cth), rr 35.12(2)(d), 35.13, 35.14, 36.01(2), 36.01(2)(c),
Fair Work Act 2009 (Cth), ss 394(2), 394(3), 400(1)
Judiciary Act 1903 (Cth), s 39B
Cases cited: Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38
Cement Australia Pty Ltd v Australian Competition and Consumer Commission (2010) 187 FCR 261
Corrs Pavey Whiting and Byrne v Collector of Customs (Vic) (1987) 14 FCR 434
Croker v Phillips Electronics Australia Ltd [2000] FCA 1731
Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
Fonterra Brands (Australia) Pty Ltd v Viropolous [2013] FCA 657
Grimwade v Meagher [1995] 1 VR 446
Kennedy v Secretary, Department of Industry (No 2) [2015] FCA 884
Kennedy v Secretary, Department of Industry [2015] FCA 714
Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326
Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1 at 14
Rigato Farms Pty Ltd v Ridolfi [2001] 2 Qd R 455
Sharman Licence Holdings Ltd v Universal Music Aust Pty Ltd [2005] FCA 802
TCL Air Conditioner (Zhonghshan) Co Ltd v Castel Electronics Pty Ltd (2014) 232 FCR 361
Date of hearing: 13 September 2016 Registry: New South Wales Division: General Division National Practice Area: Employment & Industrial Relations Category: Catchwords Number of paragraphs: 123 Counsel for the Applicant: Mr N Kuster of Bevan & Co Lawyers with the applicant appearing in person Counsel for the First Respondent: Mr J Darams Solicitor for the First Respondent: Ashurst Australia Counsel for the Second Respondent: The second respondent filed a submitting appearance, save as to costs ORDERS
ACD 44 of 2016 BETWEEN: ROSS PATRICK KENNEDY
Applicant
AND: SECRETARY, DEPARTMENT OF INDUSTRY(COMMONWEALTH OF AUSTRALIA)
First Respondent
GENERAL MANAGER, FAIR WORK COMMISSION
Second Respondent
JUDGE:
WIGNEY J
DATE OF ORDER:
21 OCTOBER 2016
THE COURT ORDERS THAT:
1.The applicant’s application for an extension of time and leave to appeal be dismissed.
2.Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth), until further order, and in order to prevent prejudice to the proper administration of justice, Exhibit A5 not be available or open for inspection or removal from the Registry by third parties pursuant to Division 2.4 of the Rules, other than by order of the Court.
3.The applicant pay the costs of the first respondent as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
WIGNEY J:
In July 2015, a judge of this Court dismissed an application by Mr Ross Kennedy for judicial review of a decision of the Fair Work Commission. Mr Kennedy appealed that decision. That appeal was referred to a single judge of the Court for case management. The case management of Mr Kennedy’s appeal did not progress smoothly. Mr Kennedy filed a number of interlocutory applications and emailed other purported applications to the Registry of the Court. The applications that were pressed by Mr Kennedy, including an application for an adjournment of his applications, were heard by the case management judge on 12 April 2016. They were resolved against Mr Kennedy in a judgment handed down on 11 May 2016.
On 14 June 2016, Mr Kennedy filed an application for an extension of time and leave to appeal the primary judge’s dismissal of his applications. Leave was necessary because the orders made by the case management judge were interlocutory. An extension of time was necessary because Mr Kennedy did not file an application for leave to appeal within the time prescribed in the Federal Court Rules 2011 (Cth) r 36.03. Mr Kennedy filed voluminous evidence purporting to explain why he did not file his application within time. He also advanced, in various different ways, a plethora of complaints about the case management judge’s handling of his applications.
For the reasons that follow, Mr Kennedy’s application for an extension of time in which to file an application for leave to appeal is dismissed. There is, in short, insufficient merit in his proposed grounds of appeal to warrant the grant of leave to appeal. An extension of time would be futile. There is no merit whatsoever in any of Mr Kennedy’s miscellany of other complaints about the case management judge’s case management of his appeal.
BACKGROUND TO THE APPEAL
Mr Kennedy’s application for an extension of time and leave to appeal must be considered in the context of his litigation in both the Fair Work Commission and this Court.
Mr Kennedy was formerly employed by the Department of Industry, Innovation, Climate Change, Science, Research and Tertiary Education. His employment with the Department came to an end when he offered his resignation on 24 July 2012; an offer that was seemingly accepted on the same day.
Almost six months later, Mr Kennedy lodged what was described as an “out of time unfair dismissal claim” with the Fair Work Commission. After an unsuccessful conciliation conference, in March 2013 Mr Kennedy lodged a document which was taken to be a notice of discontinuance.
That was not the end of the matter. In July 2013, Mr Kennedy sought to re-open the proceedings, claiming that the notice of discontinuance was filed under duress. The application to re-open was dismissed by Commissioner Deegan in the Fair Work Commission in August 2013.
That was also not the end of the matter. In September 2013, Mr Kennedy lodged an application for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Cth). Section 394(2) of the Fair Work Act provides that such an application must be made within 21 days after the dismissal took effect, or within such further period as the Fair Work Commission allows. When Mr Kennedy filed his application in September 2013, he was accordingly over a year outside the prescribed time for filing such an application, unless the Fair Work Commission allowed him further time. Section 394(3) of the Fair Work Act provides that the Fair Work Commission may allow a further period if satisfied that there are exceptional circumstances.
In December 2013, Commissioner Deegan dismissed Mr Kennedy’s application. Commissioner Deegan was not satisfied that there were exceptional circumstances to warrant an extension of time.
Mr Kennedy did not let matters rest there. He sought permission to appeal Commissioner Deegan’s decision to the Full Bench of the Fair Work Commission. There were apparently 38 grounds of appeal in Mr Kennedy’s amended notice of appeal. The Full Bench, however, was not attracted by any of them. It found that there was no substance in any of the grounds of appeal and that there was no “significant error” in Commissioner Deegan’s consideration of Mr Kennedy’s application. Perhaps more significantly, the Full Bench found that it was not in the public interest to grant Mr Kennedy permission to appeal. Section 400(1) of the Fair Work Act provides that permission to appeal must not be granted unless the Fair Work Commission considers that it is in the public interest to do so.
Mr Kennedy’s quest for a remedy in respect of his dismissal did not end in the Fair Work Commission. Having exhausted his options in the Fair Work Commission, Mr Kennedy decided to pursue redress in this Court. He applied, pursuant to s 39B of the Judiciary Act 1903 (Cth), for the issue of the constitutional writs of certiorari and mandamus against Commissioner Deegan and the members of the Full Bench of the Fair Work Commission.
That application was unsuccessful. The primary judge found that none of Mr Kennedy’s numerous contentions or complaints about how Commissioner Deegan and the Full Bench had handled his matter had any merit or amounted to jurisdictional error: Kennedy v Secretary, Department of Industry [2015] FCA 714.
It is unnecessary to give any detailed consideration to the primary judge’s reasons for dismissing Mr Kennedy’s application. That is a matter for the Full Court, which has now heard Mr Kennedy’s appeal and has reserved its decision. Three passages from the reasons should, however, be extracted, if only because they put Mr Kennedy’s present application in context.
First, the “nature and character” of Mr Kennedy’s catalogue of complaints concerning the Full Bench was summarised by the primary judge in the following terms (at [19]):
The jurisdictional errors alleged in the amended statement of claim filed on 12 December 2014 commence with a complaint of lack of procedural fairness and natural justice owing to the composition of the Full Bench. Those complaints relate to the “gender equity“ of the composition of the Full Bench and alleged failures of prompt response to correspondence from the applicant. A series of complaints follow which allege a failure to deal with claims of presumed bias, a failure to notify the identity of all the members of the Full Bench in advance, failure to grant adjournments or allow adequate time for the hearing, that members of the Full Bench asked wrong and irrelevant questions and that the Full Bench “failed to reasonably review the exercise of power” by Commissioner Deegan. Then a series of complaints are recorded about the way in which the Full Bench dealt, or failed to deal, with particular findings of Commissioner Deegan.
As will be seen, Mr Kennedy’s proposed appeal from the dismissal of his interlocutory applications relating to the case management of his appeal raises a number of these types of complaints (putting aside “gender equity”). He claims, for example, that the primary judge denied him procedural fairness and failed to grant an adjournment.
Second, the primary judge’s view concerning the merits of Mr Kennedy’s complaints are neatly summarised in his Honour’s judgment concerning costs: Kennedy v Secretary, Department of Industry (No 2) [2015] FCA 884 (at [10]):
In my view, on the facts known to the applicant, there was no objective merit at all in the proceedings instituted by him in this Court. Some of the complaints (e.g. about gender equity) were either fanciful or plainly egregious. The others failed altogether to accept the serious difficulties in the applicant’s claims before the FWC or to appreciate the role of the FWC at first instance and on appeal and the special place of the notion of jurisdictional error in the proceedings which the applicant commenced in this Court. I am satisfied, therefore, that the first respondent has established that the applicant is not protected from an order of costs by s 570 of the FW Act.
It is a matter for the Full Court in the appeal to determine the correctness or otherwise of the primary judge’s view concerning the merits of Mr Kennedy’s judicial review application. As will be seen, however, some of Mr Kennedy’s complaints concerning the conduct of the case management judge, some of which provided the basis for his application for an extension of time and leave to appeal, could also accurately be described as fanciful or plainly egregious.
Third, Mr Kennedy’s conduct of his application was described by the primary judge, in the judgment at first instance, in the following terms (at [35]):
There are two further procedural matters to mention. The applicant filed extensive written submissions which in fact exceeded a 40 page limit directed by Jagot J (the applicant’s suggestion that “annexures“ fell outside the limitation has no substance). He also filed quite lengthy submissions in reply. During the course of the applicant’s oral submissions he complained he was not receiving a fair hearing and did not wish to continue. He was invited a number of times to continue with his submissions and put such further submissions as he wished to rely upon, relevant to the question of jurisdictional error. After a short adjournment, the applicant asked me to disqualify myself so that his application for judicial review could be heard by another judge. I declined to do so, whereupon the applicant withdrew from the proceedings and left the court. I then took the submissions for the first respondent as I had indicated I would. The transcript of the proceedings will no doubt provide a sufficient record of the exchanges should review of the matter be necessary.
Having regard to these facts and circumstances, it is perhaps not surprising that Mr Kennedy’s appeal was assigned to a single judge to case manage. It would appear that Mr Kennedy represented himself at all relevant times in the Fair Work Commission. He also represented himself at the hearing of his first instance application in this Court, as well as in the case management hearings relevant to this application.
Due allowance must be made for the fact that Mr Kennedy was at most relevant times unrepresented. Nevertheless, as will be seen, there has been a good deal of what could perhaps be fairly and accurately described as procedural delinquency by Mr Kennedy in the prosecution of his appeal. That includes, amongst other things, the filing of (and purported filing of) multiple interlocutory applications and unnecessarily lengthy and prolix documentation. Mr Kennedy has also displayed a proclivity for sending multiple email requests, demands and complaints concerning his matter to the Registry and many others.
CASE MANAGEMENT OF THE APPEAL
Mr Kennedy’s initial notice of appeal was filed in August 2015. It ran to some 91 paragraphs. It contained numerous complaints and criticisms of the primary judge. To put matters in perspective, it should be noted that the primary judge’s reasons for judgment only extended to 37 paragraphs.
The matter first came before the case management judge on 14 October 2015. His Honour, not unreasonably, directed Mr Kennedy to file an amended notice of appeal that complied with the Rules, together with an outline of submissions (not exceeding 20 pages) no later than 12 February 2016. It would appear that one or both of the parties must have foreshadowed filing an interlocutory application. His Honour directed that any interlocutory application, together with any supporting evidence, was to be filed by 16 February 2016.
Mr Kennedy did not file an amended notice of appeal and an outline of submissions as directed. Instead, on 3 February 2016, he filed an interlocutory application seeking an extension of time of 150 days to comply with the orders made on 14 October 2014. The application specified 49 grounds that were said to support the application.
The matter next came before the case management judge on 23 February 2016. His Honour varied the earlier orders in relation to the filing of an amended notice of appeal and submissions, such that Mr Kennedy had until 30 March 2016 in which to comply with those orders. That may not have been an extension of 150 days, but it was nonetheless a significant extension in all the circumstances. Over six months had already passed since Mr Kennedy had filed his initial notice of appeal. Quite frankly, an extension of 150 days would have been unwarranted, if not ridiculous!
The case management judge also extended the time for the filing of any interlocutory application to 1 April 2016. His Honour fixed the hearing of any interlocutory application so filed for 12 April 2016.
Mr Kennedy complied with the orders in relation to the filing of an amended notice of appeal and submissions. Documents matching those descriptions were filed on 29 March and 30 March 2016, respectively. Curiously, Mr Kennedy had earlier emailed submissions to the Registry of the Court which apparently differed substantially from those that were ultimately filed on 30 March.
A number of interlocutory applications were also filed in purported compliance with the orders made on 23 February 2016.
First, on 9 March 2016, Mr Kennedy filed an interlocutory application which sought, amongst other things, an order that the case management judge recuse himself on the grounds of apprehended bias. The filed document was over ten pages long.
Second, on 30 March 2016, Mr Kennedy filed a document described as an amended interlocutory application which sought an order that the firm of solicitors who had at all times represented the Department, Ashurst Australia, be restrained from further representing the Department. The basis of that application will be explained later.
Third, on 1 April 2016, the Department filed an interlocutory application which sought an order that Mr Kennedy’s amended notice of appeal be struck out and that the Court give summary judgment against Mr Kennedy in relation to the appeal. Ultimately, the Department did not press that application, though, as will be seen, Mr Kennedy relied on the Department’s filing of that application in support of his submission that the case management judge erred in not adjourning the hearing of his interlocutory application.
Mr Kennedy also sent emails to the Court Registry relating to three other applications, or purported applications.
On 9 March 2016 Mr Kennedy sent an email to the Registry requesting or demanding that the case management judge provide reasons for his Honour’s refusal to issue subpoenas at Mr Kennedy’s request. That request or demand was purportedly made pursuant to, or was based on, s 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth).
On 29 or 30 March 2016, Mr Kennedy emailed a letter to the Registry. Amongst other things, the letter requested that the hearing of the various interlocutory applications on 12 April be vacated. The grounds of that purported or foreshadowed application included that Mr Kennedy needed more time to prepare submissions and prepare his case.
Finally, on 8 April 2016, Mr Kennedy sent a lengthy letter to the Chief Justice and the Principal Registrar “politely” asking them to adjourn the hearing on 12 April 2016.
THE HEARING ON 12 APRIL 2016
The transcript of the hearing on 12 April 2016 was tendered by the Department in opposing Mr Kennedy’s application for an extension of time. The following points may be made concerning the conduct of the hearing as appears from the transcripts.
First, faced with the barrage of applications and correspondence, most of it emanating from Mr Kennedy, the case management judge endeavoured to ascertain from Mr Kennedy exactly what applications he wished to press and what matters were in issue. That approach was, with respect, eminently sensible.
Second, it emerged from the ensuing exchange between his Honour and Mr Kennedy that the following applications or requests were to be pressed: Mr Kennedy’s request for reasons for his Honour’s refusal to grant leave to issue various subpoenas; Mr Kennedy’s application that Ashurst be restrained from further representing the Department; and Mr Kennedy’s application that the hearing of those applications be adjourned. Mr Kennedy expressly withdrew his application that the case management judge recuse himself, and his application for an extension of time to comply with the case management directions in relation to the hearing of the appeal.
Third, his Honour flagged, at the very outset, that he proposed to set the appeal down for hearing in mid-June 2016, and that Mr Kennedy would have a further four weeks in which to file an amended notice of appeal and submissions. Mr Kennedy did not oppose the appeal being set down for hearing, or being given an additional four weeks in which to file an amended notice of appeal. Mr Kennedy indicated that he had managed to secure legal representation. That appears to have been the reason he withdrew his application for a 150 day extension of time. Mr Kennedy did not, at any stage of the hearing, put to the case management judge that he needed more than four weeks to file his amended notice of appeal.
Fourth, a fair reading of the transcript reveals that, in light of his Honour’s proposal to set the appeal down for hearing and allow Mr Kennedy further time to file an amended notice of appeal, the Department effectively indicated that it would not press its strike out and summary judgment application. That must have been readily apparent to Mr Kennedy at a fairly early stage of the hearing.
Fifth, Mr Kennedy based his application for an adjournment of the hearing of his interlocutory applications squarely on the fact that the witnesses that he wanted to subpoena were critical to the merits of his application to restrain Ashurst from any further involvement in his appeal. In that way, Mr Kennedy’s application for an adjournment became inextricably linked with his contention that certain subpoenas should issue. The issue of the subpoenas, in turn, hinged to an extent on how Mr Kennedy put his case relating to the further involvement of Ashurst in the appeal. His Honour was required to assess the forensic purpose, utility and reasonableness of the proposed subpoenas.
Sixth, Mr Kennedy made lengthy submissions in which he outlined the essence of his case that Ashurst should be restrained and why he needed subpoenas to issue to certain persons to make good that case. In short terms, Mr Kennedy contended that Commissioner Deegan’s Associate, Ms Sarah Meier, had disclosed confidential communications between her and Mr Kennedy to Ashurst. Those communications, which were in the form of various emails, were said to relate to Mr Kennedy’s tactics, strategy and the strengths and weaknesses of his case. According to Mr Kennedy, in disclosing the confidential communications, Commissioner Deegan’s Associate and, it appears, Commissioner Deegan herself, apparently by imputation, had breached their statutory duties. Ashurst, and more specifically one of that firm’s partners, Mr Jonathan Lovell, were also said to have breached duties owed by them because they failed to return the supposedly confidential information.
The second plank in Mr Kennedy’s argument was that, some time after Commissioner Deegan had decided Mr Kennedy’s case, she resigned from the Fair Work Commission and commenced employment with Ashurst. Mr Kennedy complained that Ms Deegan (as the Commissioner was after her resignation from the Fair Work Commission) had not given any written undertaking not to work on his matter. Nor had Ashurst put in place any “Chinese Walls” or information barriers.
Seventh, the subpoenas that Mr Kennedy contended were critical to his case were; subpoenas to produce documents to Mr Peter McNulty of Ashurst and Mr Craig Rawson of the Australian Government Solicitor and; and subpoenas to attend and give evidence to Ms Deegan, Ms Meier, Mr Lovell, Ms Rhondda Nicholas of Nicholas Dibb Solicitors and Mr Paul Patti. Mr Kennedy made submissions in an endeavour to persuade his Honour why the documents he sought production of, and the evidence of the prospective witnesses, were critical to his case.
Eighth, in opposing Mr Kennedy’s applications, the Department read an affidavit sworn by Mr Lovell. Mr Kennedy did not object to the affidavit or seek to cross examine Mr Lovell. Amongst other things, Mr Lovell’s affidavit stated that Ms Deegan had no involvement with Ashurst’s representation of the Department in respect of Mr Kennedy’s appeal, and that Ms Deegan had not worked, and would not, in the future, work on Mr Kennedy’s matter.
Ninth, a fair reading of the transcript reveals that Mr Kennedy was given ample opportunity to make submissions in relation the various applications he was pressing. The case management judge was scrupulously fair to Mr Kennedy. His Honour was mindful of the fact that Mr Kennedy was representing himself, and gave him every opportunity to present his case. Perhaps mindful of the fact that Mr Kennedy had apparently secured legal representation, his Honour also gave Mr Kennedy an opportunity to file further written submissions in support of his applications. Mr Kennedy was given ten days to file any further submissions. Mr Kennedy did not submit to the case management judge that he needed more than ten days to file the submissions.
Mr Kennedy did file written submissions within that ten day period. Those submissions, however, really only addressed the adjournment application. They otherwise raised a myriad of other largely irrelevant and seemingly unfounded complaints about the handling of his matter and the conduct of the case management judge.
One other matter should be noted. On 18 April 2016, six days after the hearing, Mr Kennedy filed another lengthy interlocutory application. That application ran to 8 pages. It sought “an extension of time to complete all orders made…on 12 April 2016 by 90-100 days” and an adjournment of the appeal hearing. The application as filed did not specify a date for the hearing of the application. Nor did the Registry allocate a hearing date when the application was filed. It was and is somewhat unclear whether the extension of time sought by Mr Kennedy concerning the orders relating to the hearing of his appeal, or the orders concerning the filing of any further submissions in relation to the interlocutory applications heard on 12 April 2016, or both.
THE JUDGMENT OF THE CASE MANAGEMENT JUDGE
The case management judge reserved his judgment on Mr Kennedy’s applications, including the adjournment application. His Honour handed down a judgment on 11 May 2016. His Honour refused Mr Kennedy’s application to adjourn the hearing of his interlocutory applications, and dismissed both his application to restrain Ashurst from further participating in the proceedings, and his application for a statement of reasons for refusing the subpoenas.
The main reason given by the case management judge for refusing the adjournment application was, essentially, that an adjournment would serve no purpose. His Honour found that the evidence that Mr Kennedy apparently wished or hoped to obtain from the proposed subpoenas would not advance any factual or legal issue relevant to Mr Kennedy’s case that Ashurst should be restrained. His Honour reasoned that any additional evidence that Mr Kennedy might have secured by reason of the subpoenas would not be capable of overcoming the fundamental problems in Mr Kennedy’s case that Ashurst should be restrained. His Honour confirmed that leave to issue the subpoenas was refused because, in effect, they had no legitimate forensic purpose.
His Honour gave two other reasons for refusing the adjournment application. First his Honour considered that any application to restrain Ashurst should have been made before the primary judge. Second, his Honour had regard to the imperative imposed by s 37M of the Federal Court of Australia Act 1976 (Cth) to facilitate the “just resolution of disputes... as quickly, inexpensively and efficiently as possible”. His Honour reasoned that the “repeated request for adjournments made by Mr Kennedy [were] antithetical to the requirement imposed upon him” to conduct the proceeding in a manner consistent with that overarching purpose.
In relation to Mr Kennedy’s case that Ashurst should be restrained, the case management judge accepted that the Court had jurisdiction to restrain a solicitor, or a firm of solicitors, from appearing for a party where that was necessary to protect the integrity of the judicial process. His Honour accepted that the power was founded on the need to ensure that “justice should not only be done, but manifestly and undoubtedly should be seen to be done”: Grimwade v Meagher [1995] 1 VR 446 at 452 (per Mandie J). His Honour referred with approval to the following observations of Mandie J in Grimwade:
The objective test to be applied in the context of this case is whether a fair-minded reasonably informed member of the public would conclude that the proper administration of justice required that counsel be so prevented from acting, at all times giving due weight to the public interest that a litigant should not be deprived of his or her choice of counsel without good cause.
His Honour also accepted that the power to restrain a firm of solicitors was not confined to cases where there was a conflict of interest; or where there was a duty of loyalty owed by the solicitor to a former client; or where there was an existing or former relationship; or where there was a danger of misuse of confidential information.
His Honour identified at least four problems with Mr Kennedy’s case that Ashurst should be restrained.
First, the application to restrain Ashurst should have been made before the primary judge.
Second, the unchallenged evidence of Mr Lovell was that Ms Deegan had no involvement in Mr Kennedy’s matter in her capacity as a consultant with Ashurst.
Third, the information that was communicated to Ashurst by Commissioner Deegan’s Associate was not confidential information. Indeed, the information that Mr Kennedy communicated to the Associate was, in his Honour’s view, quite properly passed on to Ashurst. In that respect, his Honour held as follows (at [50]):
…The disclosure to Ashurst of the information Mr Kennedy communicated (for example) to Ms Meier gives no rise to no concern for the “due administration of justice and … the integrity of the judicial process”. Indeed, rather the reverse. A concern for the due administration of justice would arise if a litigant sought to have confidential communications with an Associate to either a Commissioner or any other member of the Fair Work Commission. There are sound reasons why an obligation of confidence should not be imposed upon Ms Meier. It is, with respect, antithetical to the open administration of justice for a party to have “in-confidence” communications with an Associate having a direct bearing on the issues in the proceeding: John Holland Rail Pty Ltd v Comcare [2011] FCAFC 34 at [23], (2011) 276 ALR 221 at 227.
As for Mr Kennedy’s request for a statement of reasons for refusing leave to issue the subpoenas, his Honour concluded that s 13 of the Administrative Decisions (Judicial Review) Act did not impose any requirement to provide reasons for a decision refusing leave to issue a subpoena. That was so for a number of reasons, including that such a decision fell squarely within the exclusion in paragraph (f)(iv) of Schedule 2 to that Act. In any event, his Honour provided reasons for his decision to refuse to issue the subpoenas. In short, his Honour reasoned that Mr Kennedy had failed to establish any legitimate forensic purpose for the issue of the subpoenas.
Finally, his Honour referred to Mr Kennedy’s interlocutory application which was filed on 18 April 2016, six days after the hearing of Mr Kennedy’s other interlocutory applications. It is plain that his Honour interpreted the application for an extension of time to relate to the appeal, not the filing of the further submissions in relation to the interlocutory applications. In relation to an extension of time relating to the appeal, his Honour first noted that he had understood from what had transpired at the hearing on 12 April that Mr Kennedy was content for the hearing of the appeal to proceed in mid-June, that he did not need more time than the additional four weeks afforded to him to file an amended notice of appeal and submissions, and that he did not press his 3 February 2016 application for a 150 day extension. A fair reading of the transcript reveals that his Honour’s understanding was soundly based.
In any event, to avoid any uncertainty, his Honour dismissed Mr Kennedy’s 3 February application for an extension of time of 150 days. His Honour held that a period in excess of nine months from the filing of the initial notice of appeal, and a period in excess of six months from the initial directions hearing in October 2015 was a “more than adequate time within which the appeal can be readied for hearing”.
As for the 18 April 2016 interlocutory application, his Honour listed that application for hearing before the Full Court on the first day of the hearing of the appeal. His Honour noted (at [75]):
If Mr Kennedy wishes to seek a further extension of time and to adjourn the hearing of his appeal, that is an application to which he can make to the Full Court. It is for the Full Court to resolve that application, on the basis of such evidence Mr Kennedy may adduce.
THE APPLICATION FOR AN EXTENSION OF TIME AND LEAVE TO APPEAL
There is no dispute that the judgment and orders of the case management judge were interlocutory in nature. It was and is necessary for Mr Kennedy to obtain leave to appeal: s 24(1A) of the Federal Court of Australia Act. Applications for leave to appeal may be heard and determined by a single judge: s 25(2) of the Federal Court of Australia Act.
Written applications for leave to appeal must be filed within 14 days after the date on which the judgment was pronounced or the order was made, or on a date on or before a date fixed for that purpose by the Court: Rules r 35.13. Mr Kennedy was accordingly required to file his application for leave to appeal on or before 25 May 2016. It is common ground that he did not do so. Nor had the Court fixed any other date for the filing of his application. It is for that reason that Mr Kennedy was and is required to apply for an extension of time to seek leave to appeal: r 35.14.
Relevant principles
The principles to be applied in determining an application for an extension of time to seek leave to appeal are well settled and do not need to be elaborated on. In short terms, two conditions must generally be satisfied.
First, there must be a satisfactory explanation for the delay: Croker v Phillips Electronics Australia Ltd [2000] FCA 1731; Sharman Licence Holdings Ltd v Universal Music Aust Pty Ltd [2005] FCA 802. An explanation should be provided for every part of the delay. Where, as here, an application for leave is required to be filed within a fixed period, an explanation should be given for the failure to file within that period. It is generally not sufficient to simply explain the delay following the expiry of that period: Sharman at [23]. Failure to explain why the application was not filed within the fixed period may alone justify the refusal of an application for an extension of time: see for example Sharman at [38].
Second, the application for leave to appeal must have reasonable prospects of success such as not to render the extension of time an exercise in futility: Sharman at [20]. The test for the granting of leave to appeal from an interlocutory judgment is that the decision must be attended with sufficient doubt to warrant the decision being reconsidered by an appellant court, and that substantial injustice would result if leave were to be refused, supposing the decision to have been wrong: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-400. The question on an application for extension of time, therefore, is whether that test has sufficient prospects of being satisfied to warrant granting the extension. In 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”: Sharman at [20].
Mr Kennedy filed a huge volume of material in support of his application. Most of it purported to explain why he failed to file an application for leave to appeal within time. Some of the material was in vaguely admissible form, but most was not. Some of it was remotely relevant, but much of it went into excruciating detail about matters that were at most marginal or tangential in terms of relevance.
Mr Kennedy’s application for an extension of time and leave to appeal was accepted for filing on 14 June 2016: 20 days after the expiry of the time period for the filing of an application for leave to appeal. It is at the very least doubtful that it was in an appropriate form. It is even more doubtful that it complied with rule 35.12. It was 18 pages long and contained an inappropriately prolix narrative of facts said to support the application. It is not readily apparent that it was accompanied by all of the documents referred to in rule 35.12(2).
The application appears to have been accompanied by a draft notice of appeal as required by rule 35.12(2)(d), however it is at least doubtful that the draft notice complied with rule 36.01(2) of the Rules. That rule requires a notice of appeal to state, amongst other things, the grounds relied on in support of the appeal “briefly but specifically”: r 36.01(2)(c). The stated grounds in the draft notice were anything but brief or specific. In total there were 30 grounds. For the most part they comprised broad and sweeping allegations of error that were entirely devoid of any meaningful particulars. For example, the grounds included that the case management judge “misapplied the law” or that his decisions were “unreasonable”, or that his Honour failed to provide a “fair hearing”, without providing any details whatsoever of the factual or legal basis of those asserted errors. To make matters worse, the stated grounds also included a paragraph which simply said “other grounds”. The draft notice was next to useless in defining what the real issues were, if any, in Mr Kennedy’s proposed appeal.
Evidence
Mr Kennedy’s application was initially supported by two affidavits sworn by him.
The first affidavit, sworn on 24 May 2016, was eight pages in length. Most of the evidence affidavit was in a form which, if objected to, would have been rejected as inadmissible. It essentially contained a series of bald assertions or conclusions. Even putting the form of those statements aside, the contents of this initial affidavit do not provide a satisfactory explanation for the delay. What is perhaps most revealing is that it would appear from the affidavit that Mr Kennedy had obtained a lawyer to advise and represent him by this stage. That lawyer ultimately appeared for Mr Kennedy at the hearing of the application. Most of the affidavit seeks to explain why the lawyer had been “unable to progress matters as he would like to”.
The second affidavit, sworn 13 June 2016, was also lengthy. It was 14 pages long and contained 66 paragraphs. Much of that affidavit was devoted to explaining, in excruciating detail, the difficulties that Mr Kennedy had supposedly encountered in utilising the Court’s “eLodgment” system and his subsequent communications with various Registry staff about those difficulties. Other difficulties that Mr Kennedy was experiencing at the time were also described. They included: a workplace accident; the fact that he was selling his house; the fact that he was subjected to workplace bullying; and the fact that he had been diagnosed with depression and anxiety as a result of those incidents. The affidavit also included a litany of complaints about various people, including the case management judge and registry staff.
On 1 July 2016, there was a case management hearing before Jagot J. Her Honour listed Mr Kennedy’s application for hearing and made orders in relation to the filing of further affidavits and written submissions. The written submissions were not to exceed 5 pages in length, inclusive of all attachments.
Mr Kennedy availed himself of the opportunity to file a further affidavit: a 14 page affidavit comprising 219 paragraphs, and a further 15 pages of annexures. It is unnecessary to describe the contents of that affidavit. Suffice it to say that, broadly speaking, it addressed the same topics and complaints as the earlier affidavit did, though with some additional, though largely unnecessary, detail.
But there was more.
The Department filed an affidavit which simply annexed the transcript of the 12 April hearing and a copy of the 11 May judgment. The directions made on 1 July permitted Mr Kennedy to file an affidavit in reply. Presumably in purported reliance on that direction, Mr Kennedy filed a 103 page affidavit comprising 1,163 paragraphs. None of this affidavit could truly be characterised as evidence in reply. Rather, it contained a rehash of much of the material in the earlier affidavits, together with a plethora of utterly irrelevant allegations and assertions about various matters. It also contained detailed argument and submissions about his supposed grounds of appeal. Needless to say, to the extent that the affidavit contained submissions, it attempted to circumvent the five page limit that Jagot J had imposed in respect of written submissions. On just about any view, this affidavit bordered on being vexatious and oppressive.
At the hearing of his application, Mr Kennedy was represented by a solicitor, Mr Kuster. At the hearing, Mr Kuster was directed to take the Court to those paragraphs of this affidavit that were intended to be relied on by Mr Kennedy and to explain their relevance. The following paragraphs were nominated:
·Paragraphs 91 to 98;
·Paragraphs 101 to 125;
·Paragraphs 190 to 200;
·Paragraph 202;
·Paragraphs 1027 to 1040; and
·Paragraphs 1130 to 1131.
Those nominated paragraphs are of at best doubtful relevance and admissibility. They were nonetheless read and admitted without objection. The balance of the affidavit was and is rejected.
If that were not enough, on the eve of the hearing, Mr Kennedy filed another affidavit which annexed voluminous documentation concerning the difficulties that he had encountered at his workplace, as well as some, albeit fairly limited, medical evidence concerning his anxiety and depression.
Submissions
Mr Kennedy filed a five page outline of submissions prepared by his lawyer. Those submissions were revealing, at least insofar as they attempted to distil from the morass the essence of Mr Kennedy’s explanation for the delay and, perhaps more importantly, his proposed grounds of appeal.
Despite the mass of material filed by Mr Kennedy, the written submissions relating to the explanation for the delay were couched in comparatively narrow and certainly more tempered terms than the affidavits. While brief reference was made to Mr Kennedy “dealing with a number of personal, professional and mental health issues” at the relevant time, the main focus of the submissions was the technical difficulties that Mr Kennedy claimed that he had encountered with the Court’s eLodgment system. It was submitted that Mr Kennedy genuinely attempted to electronically file his application for leave to appeal within the 14 day period but was effectively prevented from doing so by the eLodgment system. When he encountered those difficulties with the system, he earnestly tried to communicate with Registry staff. It was contended that by emailing his application to the Registry, Mr Kennedy had effectively lodged his application with the Court, albeit not in accordance with the Rules. It was submitted that there was no difference of substance between the documents that Mr Kennedy sought to file within time, and the documents that he eventually filed in relation to the extension application. While the written submissions contained some express or implied criticisms of the eLodgment system and Registry staff, that was very much a subsidiary point.
It was also submitted that the Department did not suffer any material prejudice as a result of the delay, particularly considering that the application for an extension of time was filed a mere 19 days after the expiry of the time for the filing of a leave application.
In its submissions, the Department effectively conceded that the delay caused it no material prejudice. More significantly, when pressed, the Department effectively conceded that if Mr Kennedy was able to persuade the Court that there was any merit in his proposed appeal, such that there were reasonable prospects that leave to appeal would be granted, Mr Kennedy’s delay alone would not justify the refusal of an extension of time. More will be said of this later. Suffice it to say at this stage that the concession was properly and reasonably made. It properly focused attention on the merits of Mr Kennedy’s grounds for leave to appeal.
Regrettably, the written submissions filed on Mr Kennedy’s behalf did not assist at all in identifying his proposed grounds of appeal, let alone the arguments that he would advance in support of those grounds. Indeed, the written submissions were positively unhelpful in that regard.
The written submissions essentially simply stated that Mr Kennedy relied on his affidavit of 12 August 2016. The body of that affidavit deals only with Mr Kennedy’s explanation for his delay in filing an application for leave. It says nothing about his grounds of appeal, let alone his arguments in support of them.
The 12 August affidavit does annex copies of letters that Mr Kennedy says he sent to the Principal Registrar and the case management judge on 15 and 18 April 2016, respectively. Those documents contain a long narrative containing a litany of complaints about the case management judge and his Honour’s conduct of the 12 April hearing. To the extent that it might be suggested that those complaints constituted his grounds of appeal, it should be noted that, on just about any view, those letters do not properly identify any grounds of appeal. Nor do they advance any rational or reasonable arguments in support of any identifiable grounds of appeal. Much of what is asserted in those letters could fairly be characterised as bordering on being scandalous or vexatious.
Other than that, the written submissions essentially fixed on a contention that Mr Kennedy was denied procedural fairness because the case management judge did not deal with the merits of his interlocutory application filed on 18 April 2016, six days after the hearing. More will be said about that contention later. Suffice it to say, at this stage, that this purported ground of appeal is not included in Mr Kennedy’s draft notice of appeal.
At the hearing, Mr Kennedy’s solicitor was pressed to identify, with some precision and particularity, exactly what grounds of appeal Mr Kennedy would pursue if granted leave. He endeavoured to do so. Somewhat unusually, Mr Kennedy himself also made oral submissions concerning his proposed grounds of appeal. As a result of these “tag-team” submissions, five proposed grounds of appeal were able to be articulated with some modicum of clarity.
First, Mr Kennedy contended that the case management judge erred in not taking into account the interlocutory application filed after the hearing on 18 April 2016. That application sought an extension of 90 to 100 days to comply with the orders made on 12 April 2016. Mr Kennedy’s solicitor readily conceded that the length of the extension sought was “ludicrous”. It would also appear that this proposed ground of appeal interpreted the 18 April application as seeking an extension of time in which to file written submissions in relation to the interlocutory applications, not an extension of time in relation to the appeal.
Second, it was contended that Mr Kennedy was denied procedural fairness at the hearing on 12 April 2016. Mr Kennedy submitted that he was given insufficient time to address the Department’s interlocutory application to strike out the appeal, which he only received on 1 April 2016. Mr Kennedy contended, however, that the unfairness arising from the Department’s interlocutory application was compounded by the fact that he had only obtained legal assistance on 8 April 2016, four days prior to the hearing. He also submitted that the primary judge’s decision to “revisit” the previously rejected subpoenas with a “high level” of scrutiny was unreasonable, particularly because his previous request for reasons had been denied.
Third, in relation to the refusal to restrain Ashurst, it was contended that his Honour erred in applying the “test for confidential information”. Mr Kennedy contended that the information contained in the emails copied to Ashurst was confidential because it concerned tactical information disclosed when Mr Kennedy sought advice and guidance from the Fair Work Commission Registry.
Fourth, Mr Kennedy contended that his Honour erred in finding that the application to have Ashurst restrained should have been made before the primary judge. Mr Kennedy asserted, from the bar table, that he only became aware that Commissioner Deegan had been employed by Ashurst after the hearing before the primary judge.
Fifth, it was submitted that, in refusing Mr Kennedy’s application to restrain Ashurst, his Honour erred by either not having regard to, or by misapplying, the test relating to the perceptions of a fair minded observer. It was contended that his Honour gave insufficient weight to the fact that Commissioner Deegan had made two decisions that were adverse to Mr Kennedy, as well as various other matters relating to the conduct of various people at Ashurst.
SHOULD AN EXTENSION OF TIME BE GRANTED?
While Mr Kennedy’s voluminous evidence explaining his delay in filing an application for leave to appeal within time was effectively unchallenged by the Department, the adequacy of aspects of the explanation for the delay remains doubtful. For example, it remains somewhat unclear why Mr Kennedy left it to effectively the last day of the 14 day time period to attempt to file his leave application; or why, if he was encountering difficulties with eLodgment, he did not attempt to file the documents over the counter; or why it took him another 19 days to file his application for an extension of time; or how his personal, professional and mental health issues in fact materially impacted on his ability to file his leave documents within time.
Perhaps more significantly, Mr Kennedy’s evidence and submissions left one important issue entirely unexplained. That issue was that the documents that Mr Kennedy did eventually file were deficient in at least one important respect: neither the application itself, nor the draft notice of appeal, properly articulated or particularised Mr Kennedy’s proposed grounds of appeal. This was effectively conceded by Mr Kennedy, through his solicitor. It was acknowledged that Mr Kennedy would be required to amend his draft notice of appeal. It would perhaps be more accurate to say that Mr Kennedy would have to file an entirely new notice of appeal which actually contained properly particularised grounds of appeal. Mr Kennedy has still not provided the Court with an acceptable draft notice of appeal that “briefly but specifically” states his grounds of appeal as required by r 36.01(2) of the Rules.
Lest there be any doubt about it, the lengthy affidavits filed by Mr Kennedy do not make up for this manifest deficiency in his application and draft notice of appeal. The lengthy, discursive and prolix catalogue of complaints contained in Mr Kennedy’s affidavits do not clearly and concisely state his appeal grounds.
Even if it may be accepted that Mr Kennedy has provided a satisfactory explanation for his delay in filing the documents that he has filed, he has provided no explanation for the manifest deficiency in those documents. That alone would be a basis for refusing an extension of time.
There is, in any event, an even more fundamental reason for refusing an extension of time. That reason is that granting Mr Kennedy an extension of time would be an exercise in futility. There is no prospect, let alone a reasonable prospect, that he would be granted leave to appeal. That is because Mr Kennedy has failed to show that the judgment of the case management judge is attended with sufficient doubt to warrant it being reconsidered by the Full Court. Nor has he demonstrated that substantial prejudice and injustice would result if leave were to be refused, supposing that the decision of the case management judge was wrong.
None of the five grounds of appeal articulated by Mr Kennedy are sufficiently arguable to warrant the grant of leave to appeal.
The first proposed ground of appeal has no merit whatsoever. The interlocutory application filed on 18 April was filed after the hearing. It was not incumbent on his Honour to hear it before handing down his judgment in respect of the interlocutory applications that were in fact heard on 12 April. In any event, the 18 April interlocutory application appeared to relate to a request for more time for the hearing of the appeal. That was how the primary judge construed it. If that was what the interlocutory application sought, it was, with respect, eminently sensible in all the circumstances for his Honour to list it for hearing on the day allocated for the hearing of the appeal.
In any event, and however the 18 April interlocutory application is construed, the interlocutory application was utterly without merit. As Mr Kennedy’s solicitor freely conceded, without prompting, an extension of time of 90 to 100 days for either the filing of an amended notice of appeal and submissions for the appeal, or for the filing of further submissions in respect of the interlocutory applications, was ludicrous. No evidence was filed in support of this application. No proper basis for any extension of time was demonstrated, let alone the very lengthy extension Mr Kennedy sought.
In respect of the appeal, the four week period his Honour gave Mr Kennedy to file an amended notice of appeal and submission was, in the circumstances, plainly adequate. Many months had already passed since Mr Kennedy had filed his initial notice of appeal.
In respect of the interlocutory application Mr Kennedy had also been given sufficient opportunity to make submissions at the hearing on 12 April. He was also given a further ten days to file further written submissions, mainly because he had indicated that he had obtained a lawyer. He in fact filed further written submissions. He did not demonstrate, by evidence or otherwise, that he genuinely needed further time, or that if was given further time he would have been able to advance further or better submissions.
Mr Kennedy’s constant refrain that he was unrepresented, or had personal or mental health issues, simply does not wash in this context. That is so for a number of reasons. First, he had retained a lawyer by this stage. Second, the issues involved were not so complex that more than ten days was required to supplement what had already been submitted. Third, if Mr Kennedy had devoted as much time and effort to preparing further submissions as he had devoted to writing vexatious and scandalous letters containing complaints and baseless accusations to all and sundry, he undoubtedly would have succeeded in meeting the timetable. Fourth, Mr Kennedy has failed to point to a single meaningful additional submission which he could or would have made if given more time.
The second proposed ground of appeal may be given short shrift. A fair reading of the hearing transcript reveals that Mr Kennedy was afforded procedural fairness. The case management judge’s conduct of the hearing was courteous, reasonable and manifestly fair. Mr Kennedy was afforded every opportunity to pursue and make submissions in support of every application that he wanted to press at the hearing on 12 April, including his adjournment application. There was certainly no practical injustice of the kind referred to by the High Court of Australia in Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 at 342-343 [57]-[60] (per Gageler and Gordon JJ): see also Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1 at 14 [37] (per Gleeson CJ); TCL Air Conditioner (Zhonghshan) Co Ltd v Castel Electronics Pty Ltd (2014) 232 FCR 361 at 388 [86]; Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38 at 99 [156] (Hayne, Crennan, Kiefel and Bell JJ).
Insofar as Mr Kennedy’s claim that he was denied procedural fairness was based on the Department’s interlocutory application to strike out the appeal proceedings and enter summary judgment, that application was not heard at the 12 April hearing. It follows that Mr Kennedy’s complaint that he was given insufficient time to deal with that application has no merit. As for Mr Kennedy’s complaint concerning the fact that the primary judge “revisited” the subpoenas, Mr Kennedy did not tell the primary judge that he was not able to deal with the question of the subpoenas at the hearing. In any event, Mr Kennedy was given further time to file written submissions after the hearing. There was nothing unfair about the judge requiring Mr Kennedy to identify the legitimate forensic purpose of subpoenas.
One additional point should be made in this context. Mr Kennedy did not directly or specifically include, as a proposed ground of appeal, any asserted error by the case management judge in refusing to grant leave to issue the subpoenas. Nevertheless, at the hearing of this application, Mr Kennedy appeared to submit that his Honour was wrong to conclude that the subpoenas had no legitimate forensic purpose and could not assist Mr Kennedy’s case to restrain Ashurst. Mr Kennedy tendered documents that he said supported his case that Ashurst should have been restrained and demonstrated why he should have been granted leave to issue the subpoenas.
Lest there be any doubt about it, his Honour was correct to refuse leave to issue the subpoenas. Whilst it is perhaps understandable why Mr Kennedy feels aggrieved that Ms Deegan is now employed at Ashurst, his case that Ashurst should be restrained now appears to have morphed into a monstrous conspiracy theory based on vexatious and scandalous speculation and apparently baseless assertions. That conspiracy theory was exposed for what it is in a document tendered by Mr Kennedy at the hearing of this application (exhibit A5, being a letter dated 2 May 2016 from Mr Kennedy to Mr John Field, Ashurst General Counsel)
Given the scandalous and vexatious content of parts of that document, an order should be made, pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth), that it should not be able to be inspected or removed from the Registry by a third party pursuant to Division 2.4 of the Rules unless the Court so orders.
In any event, his Honour’s decision concerning the subpoenas was a decision in respect of practice and procedure. It is well accepted that appeal courts should be especially circumspect about interfering with decisions made on matters of practice and procedure: Rigato Farms Pty Ltd v Ridolfi [2001] 2 Qd R 455 at 459 [23] (per de Jersey CJ, McPherson JA agreeing at 459 [26] and Williams J agreeing at 460 [30]); Cement Australia Pty Ltd v Australian Competition and Consumer Commission (2010) 187 FCR 261 at 267 [22]. Even if there was some arguable error in his Honour’s refusal to grant leave to issue the subpoenas, the grant of leave to appeal would not in all the circumstances be appropriate.
The third proposed ground of appeal was that his Honour erred in concluding that the information conveyed to Ashurst by Ms Meier was not confidential. The main plank in Mr Kennedy’s case in relation to this ground flowed, at least in part, from his Honour’s conclusion that a litigant’s communications with an associate of a Commissioner of the Fair Work Commission was, by its very nature, not confidential. Mr Kennedy contended that the information he conveyed to Ms Meier was conveyed to her in her position as a member of the Fair Work Commission’s Registry, not in her capacity as an Associate. That was because Ms Meier was at the counter in the Registry when the information was conveyed to her.
The difficulty for Mr Kennedy is that, while it may be accepted that Ms Meier was at the counter when the information was conveyed to her (that is apparent from the email itself) it does not follow that the information was not conveyed to her in her capacity as an Associate to Commissioner Deegan. There was simply no evidence that the information was conveyed to Ms Meier in any particular capacity, though the context of the exchange itself suggests that the information was conveyed to Ms Meier in her capacity as an Associate.
Mr Kennedy also contended that it was readily apparent from the emails sent by Ms Meier to Ashurst that the information was confidential. That was said to be because the information plainly related to strategy, tactics and the strength and weaknesses of Mr Kennedy’s case. His Honour dealt with that contention and found, with respect correctly, that “[c]loaking a submission with a characterisation of the information being communicated does not serve to render confidential that which is not” (Judgment at [49]).
The emails that were said to contain confidential information were tendered on this application. A fair reading of the emails indicates that the information in them does not satisfy any of the criteria for confidential information referred to by Gummow J in Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 14 FCR 434 at 443. Mr Kennedy did not identify with specificity any information that had the necessary quality of confidentiality. Nor did he demonstrate, by evidence, that the information was received by Ms Meier in circumstances so as to impart an obligation of confidence.
The fourth proposed ground of appeal related to the observation by his Honour that the application to restrain Ashurst should have been made before the primary judge. There are two fundamental problems with Mr Kennedy’s complaints about this finding. First, Mr Kennedy’s arguments were, at least to a certain extent, based on a contention of fact that was entirely unsupported by evidence. Mr Kennedy contended that he did not become aware that Commissioner Deegan had joined Ashurst until after the hearing before the primary judge. In his submissions before the case management judge, however, Mr Kennedy conceded that he was not sure whether that in fact was the case. Second, and perhaps more fundamentally, a fair reading of his Honour’s judgment reveals that his Honour’s dismissal of Mr Kennedy’s application that Ashurst be restrained was also based on other entirely independent grounds. Those other grounds included that there was uncontested evidence that, since her employment at Ashurst, Ms Deegan had not had any involvement in Mr Kennedy’s matter and that the information communicated to Ashurst was not confidential information. As his Honour said, there was simply no factual foundation for the relief sought by Mr Kennedy.
The fourth proposed ground accordingly has insufficient merit to warrant reconsideration by the Full Court.
The fifth proposed ground of appeal concerned his Honour’s finding, in effect, that Ms Deegan’s employment at Ashurst did not give rise to any legitimate concerns about the “due administration of justice and [the need] to protect the integrity of the judicial process”: see Judgment at [38], referring to Fonterra Brands (Australia) Pty Ltd v Viropolous [2013] FCA 657; (2013) 304 ALR 332 at 336-337 [29]; and Judgment at [40], referring to Grimwade at 452: Mr Kennedy did not suggest that his Honour stated the wrong test. Rather, he contended that, having stated the correct test, his Honour either failed to apply it, or applied it incorrectly. In particular, Mr Kennedy contended that his Honour did not have regard to the fact that a fair minded bystander would perceive that the continuing involvement of Ashurst in the matter would be unfair or would involve a conflict, given the fact that Ms Deegan had previously made two decisions adverse to Mr Kennedy.
There is insufficient merit in that contention to warrant the grant of leave. There is little doubt that his Honour’s consideration of Mr Kennedy’s application concerning Ashurst focused primarily on whether or not the information communicated to Ashurst was confidential. That was no doubt because Mr Kennedy’s submissions and contentions also focused on that matter.
Nevertheless, a fair reading of the judgment also reveals that his Honour rejected any suggestion of there being a risk of a perception of conflict or any issue concerning the integrity of the judicial process arising from the continuing involvement of Ashurst in Mr Kennedy’s matter. That was because there was unchallenged evidence that Ms Deegan had no involvement in, and would have no future involvement in, Mr Kennedy’s matter. In those circumstances, a fair minded reasonably informed member of the public would not conclude that the proper administration of justice required Ashurst to be prevented from continuing to act.
Finally, and importantly, Mr Kennedy failed to demonstrate that substantial injustice would result if leave were to be refused, supposing the decision of the case management judge in respect of any of the interlocutory applications was wrong. Most fundamentally, he failed to demonstrate why, if his Honour was wrong not to restrain Ashurst from any further involvement in the matter, that would have caused Mr Kennedy any prejudice or injustice in the prosecution of his appeal. He has failed to show how Ashurst’s continuing involvement in representing the Department, or how the dissemination of the supposedly confidential information, would possibly have made a jot of difference to the conduct or hearing of his appeal.
Indeed, Mr Kennedy has failed to demonstrate how the outcome of any of his many interlocutory applications would have had any bearing on any aspect of the hearing or resolution of his appeal. There was and is no prospect of any injustice, let alone any substantial injustice, if the case management judge had incorrectly decided any of the relevant interlocutory applications. Mr Kennedy’s appeal has now been heard. The Full Court has reserved its decision. Mr Kennedy did not suggest that he was impeded in any material way in prosecuting his appeal as a result of the outcome of any of the relevant interlocutory applications.
One final point should be made clear. No attempt has been made in this judgment to respond to each and every one of the plethora of complaints buried within Mr Kennedy’s lengthy affidavits and the annexures thereto. Mr Kennedy will, if he wants to, no doubt be able to point to some complaints or arguments that were contained somewhere in his lengthy affidavits but were not specifically addressed in this judgment. That may well lead him to assert, in some different forum, that his case for an extension of time was not properly dealt with. The point to be emphasised, however, is that this judgment is already too long. If every one of Mr Kennedy’s many complaints was responded to, the judgment would be ten times longer. Mr Kennedy and his solicitor were given a fair opportunity to articulate his proposed grounds of appeal. Five grounds were identified. They have been dealt with. Anything else may fairly be taken to have been abandoned, or at least not to represent a proper ground of appeal.
CONCLUSION AND DISPOSITION
Mr Kennedy has failed to identify any arguable ground of appeal that would warrant the grant of leave. He has also failed to demonstrate any prejudice that has or would flow to him if leave was refused, supposing the decision of the case management judge was wrong. The grant of an extension of time in which to file an application for leave to appeal would therefore be futile. There is no prospect of him being granted leave to appeal.
The application for an extension of time is therefore refused with costs.
I certify that the preceding one hundred and twenty-three (123) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wigney. Associate:
Dated: 21 October 2016
7
14
5