Lim v Flinders University of South Australia (No 3)

[2023] FCA 618

FEDERAL COURT OF AUSTRALIA

Lim v Flinders University of South Australia (No 3) [2023] FCA 618

File number:

SAD 37 of 2023

Judgment of:

MOSHINSKY J

Date of judgment:

8 June 2023

Catchwords:

PRACTICE AND PROCEDURE – application for extension of time and leave to appeal – where the application related to a costs order made by a Judge of the Court – whether the Judge was exercising appellate jurisdiction – whether application was competent

Cases cited:

Haque v Tesoriero [2017] FCA 86

Hu v Giles [2010] FCA 592

Lim v Flinders University of South Australia (No 2) [2023] FCA 147

Division:

Fair Work Division

Registry:

South Australia

National Practice Area:

Employment and Industrial Relations

Number of paragraphs:

8

Date of last submission:

12 May 2023

Date of hearing:

Determined on the papers

Counsel for the Applicant:

The applicant is self-represented

Solicitor for the First, Second, Third, Fourth, Fifth and Sixth Respondents:

HWL Ebsworth Lawyers

ORDERS

SAD 37 of 2023

BETWEEN:

HAZEL LIM

Applicant

AND:

FLINDERS UNIVERSITY OF SOUTH AUSTRALIA

First Respondent

ASSOCIATE PROFESSOR ANAND GANESAN

Second Respondent

PROFESSOR DEREK CHEW (and others named in the Schedule)

Third Respondent

ORDER MADE BY:	MOSHINSKY J
DATE OF ORDER:	8 JUNE 2023

THE COURT ORDERS THAT:

1.The application for an extension of time and leave to appeal dated 23 March 2023 be dismissed.

2.Subject to paragraph 3, there be no order as to costs.

3.If the respondents wish to seek costs, they are to file and serve a written submission (of no more than two pages) within 14 days.  In that event, the applicant may file a responding written submission (of no more than two pages) within a further 14 days, and the issue will be determined on the papers.

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

REASONS FOR JUDGMENT

MOSHINSKY J:

1. The issue to be dealt with in these reasons is whether an application for an extension of time and leave to appeal should be dismissed as incompetent.

2. The application for an extension of time and leave to appeal was lodged by the applicant (Dr Lim) on 23 March 2023.  It was accepted for filing on 24 March 2023.  The application relates to a costs judgment given by a Judge of this Court, Charlesworth J, on 2 March 2023: Lim v Flinders University of South Australia (No 2) [2023] FCA 147.

3. By email dated 5 May 2023 from my Associate to Dr Lim, an issue was raised as to whether the application was competent.  The issue was explained in the email as follows:

   The application relates to a decision made by Justice Charlesworth in the Court’s appellate jurisdiction. It is established that it is not possible to appeal from orders made by a single Judge exercising the Court’s appellate jurisdiction to a Full Court exercising the Court’s appellate jurisdiction (see Haque v Tesoriero [2017] FCA 86 at [7]; Hu Giles [2010] FCA 592 at [19]). On this basis, it may be that the application should be dismissed.

4. Although that email invited Dr Lim to address the issue at a case management hearing, it was subsequently arranged (at the request of Dr Lim) that the issue be dealt with on the papers.  In order to reduce any potential costs, it was also arranged (by email from my Associate to the parties) that I would deal with the issue, at least in the first instance, without requiring the respondents to file submissions.

5. Accordingly, on 12 May 2023, Dr Lim provided written submissions in support of the proposition that the application should not be dismissed as incompetent.  The key proposition advanced in those submissions is that the costs order was sought by the respondents and made by Charlesworth J after her Honour had dealt with the substantive application (an application for an extension of time in which to commence an appeal from the then Federal Circuit Court of Australia), and therefore the costs order was made in the Court’s original rather than appellate jurisdiction.

6. In my view, for the reasons that follow, the judgment of Charlesworth J in relation to costs was given in exercise of the Court’s appellate jurisdiction.  As noted above, the matter before her Honour was an application for an extension of time in which to commence an appeal.  On 27 October 2022, Charlesworth J dismissed that application, and reserved the question of costs.  Her Honour subsequently published written reasons for those orders: Lim v Flinders University of South Australia [2022] FCA 1361. In dealing with the application for an extension of time in which to commence an appeal, Charlesworth J was exercising the Court’s appellate jurisdiction: Haque v Tesoriero [2017] FCA 86 at [3], [7]; Hu v Giles [2010] FCA 592 at [13], [19]. In my view, in dealing with the respondent’s subsequent application for costs, Charlesworth J was still exercising the Court’s appellate jurisdiction. The costs application was in relation to, and in this sense part of the same matter as, the application for an extension of time to commence an appeal. Accordingly, the costs judgment was given in the exercise of the Court’s appellate jurisdiction.

7. It follows that the present application (for an extension of time and leave to appeal from the costs judgment) is not competent.  This is because an appeal cannot be brought from a single Judge of this Court exercising the Court’s appellate jurisdiction to a Full Court of this Court exercising appellate jurisdiction: Haque v Tesoriero at [7]; Hu v Giles at [19]. The application will therefore be dismissed.

8. It is not clear whether the respondents have incurred any costs in relation to the present application.  On the assumption they have not, I will make an order that there be no order as to costs.  However, I will give the respondents a short period of time in case they wish to seek costs.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Moshinsky.

Associate:

Dated:       8 June 2023

SCHEDULE OF PARTIES

SAD 37 of 2023
Respondents
Fourth Respondent:	STEVE WALTHAM
Fifth Respondent:	PROFESSOR WILLIAM HEDDLE
Sixth Respondent:	PROFESSOR ROSS MCKINNON