Mandic v Phillis

Case [2005] FCA 1279


FEDERAL COURT OF AUSTRALIA

Mandic v Phillis [2005] FCA 1279

PRACTICE AND PROCEDURE – application for enlargement of time to file notice of appeal – no ground of appeal identified in application – applicant issues subpoena to obtain further evidence to support application – documents required for production subject to claims of confidentiality – application to have subpoena set aside – evidence sought to overturn credibility findings of primary judge – whether subpoena amounts to fishing and abuse of process – whether court on appeal from Federal Magistrate should allow further evidence

HUMAN RIGHTS – Sex Discrimination Act 1984 (Cth) – sexual harassment – harassment of one employee by another employee established by Federal Magistrate

Federal Court Act 1976 (Cth) s 27
Family Law Act 1975 (Cth)
Human Rights and Equal Opportunity Commission Act 1986 (Cth)
Sex Discrimination Act 1984 (Cth)
Trade Practices Act 1974 (Cth)
Federal Court Rules 1976 (Cth) O 27 r 4, O 52 r 15
Companies (New South Wales) Code
Supreme Court Rules 1970 (NSW) Pt 37 r 8

Saltman Engineering Co Ltd v Campbell Engineering Co Ltd [1948] 65 RPC 203 cited
Science Research Council v Nasse [1980] AC 1028 discussed
Council of the City of Greater Wollongong v Cowan (1955) 93 CLR 435 referred to
National Employers’ Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372 referred to
Compsyd Pty Ltd v Streamline Travel Service Pty Ltd (1987) 10 NSWLR 648 discussed
Trade Practices Commission v Arnotts Ltd (1989) 88 ALR 90 applied
Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98 referred to
Hamilton v Oades (1989) 166 CLR 486 referred to
Trade Practices Commission v Kimberly Homes Pty Ltd (1989) 217 ALR 110 cited
Dorajay Pty Ltd v Aristocrat Leisure Ltd [2005] FCA 588 cited
Cosco Holdings Pty Ltd v Commissioner for Taxation [1997] FCA 1504 referred to
R v Barton [1981] 2 NSWLR 414 cited
Commissioner of Railways v Small (1938) 38 SR (NSW) 564 referred to
Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250 cited
Bailey v Beagle Management Pty Ltd (2001) 105 FCR 136 discussed
Grant v Downs (1976) 135 CLR 674 cited
Caltex Refining Co Pty Limited v The Amalgamated Metal Workers’ Union (Federal Court of Australia, 6 December 1990, unreported) referred to
Treasurer of the Commonwealth of Australia v Canwest Global Communications Corp (Federal Court of Australia, Beaumont, Burchett and Emmett JJ, 30 June 1997, unreported) cited
Spatialinfo Pty Ltd v Telstra Corporation Ltd [2005] FCA 455 referred to
WA Pines Pty Ltd v Bannerman (1980) 41 FLR 175 discussed
Apache Northwest Pty Ltd v Western Power Corporation (1998) 19 WAR 350 referred to
Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] 2 VR 34 at 39 cited
Sankey v Whitlam (1978) 142 CLR 1 cited
Alister v The Queen (1983) 154 CLR 404 cited
Santos Ltd v Pipelines Authority of South Australia (Supreme Court of South Australia,…

Continue reading Mandic v Phillis

Sign in free to access the full text

Details
AGLC
Mandic v Phillis [2005] FCA 1279
Case
[2005] FCA 1279
Decision Date

CaseChat Overview and Summary

The case of Mandic v Phillis involved a legal dispute between Mr Mandic and Ms Phillis, with the court considering the enforcement of a subpoena issued by RailCorp. The primary concern was the potential breach of confidence, implications for public safety, and consequences for the commercial interests of the Institute, as well as Ms Phillis' privacy. The court had to decide whether the enforcement of the subpoena, particularly its presently material aspect, would constitute an abuse of the court’s process. Given the speculative basis of Mr Mandic’s subpoena, its tangential relevance, and the stage of the litigation, the court found that enforcement would result in an abuse of process.

The court's reasoning focused on the cumulative factors of the subpoena's speculative basis, its peripheral relevance, and the current litigation stage, leading to the conclusion that enforcing the subpoena would indeed involve an abuse of the court’s process. Consequently, the court set aside the disputed part of the RailCorp subpoena. Additionally, the court considered Mr Mandic's application for an enlargement of time to file and serve a notice of appeal, emphasizing that the power to grant such an extension is discretionary and must be exercised only for special reasons that justify a departure from the general rule. The court dismissed Mr Mandic's application for an extension of time and ordered him to pay the respondent's costs.

Orders

Orders of the court

1. The application for an enlargement of time within which to file and serve a notice of appeal be dismissed.

2. The applicant pay the costs of the respondent of the application.

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

CONTI J
In any event, enforcement of the disputed aspect of the RailCorp subpoena, would have implications, if not also consequences, in terms of breach of confidence, for public safety and conceivably for the commercial interests of the Institute, and also for the potentially legitimate interests of Ms Phillis’ privacy, being implications and consequences which would enter the balancing exercises thereby falling for consideration. I acknowledge that were it not for the at least speculative basis for Mr Mandic’s resort to use of the subpoena process, the barely tangential relevance of the disputed material likely to be produced therefrom, and the present stage of the relevant litigation involving Mr Mandic, I may well not have considered breach of confidence to be a sufficient factor for setting aside the RailCorp subpoena to the extent in controversy. Weighing those factors cumulatively requires however a different outcome and thus adverse to Mr Mandic’s interest. I find that the disputed part of the RailCorp subpoena, which is its presently material aspect, if enforced, would involve an abuse of the Court’s process, and for that reason it must be set it aside.Conclusions on Mr Mandic’s application for an enlargement of time in which to file and serve a notice of appeal Order 52 r 15(2) provides that the Court may grant leave to file a notice of appeal at any time for special reasons. Exercise of the power to grant an extension of time in which to file a notice of appeal is inherently discretionary in nature. The meaning of the expression special reasons was considered by the Full Federal Court in Jess v Scott (1986) 12 FCR 187, where at 195 of Lockhart, Sheppard and Burchett JJ’s joint reasons for judgment it was said as follows:‘It is that there be shown a special reason why the appeal should be permitted to proceed, though filed after the expiry of 21 days. In that context, the expression “special reasons” is intended to distinguish the case from the usual course according to which the time is 21 days. But it may be so distinguished (not necessarily will, for the rule gives a discretion) wherever the court sees a ground which does justify departure from the general rule in the particular case. Such a ground is a special reason because it takes the case out of the ordinary. We do not think the use of the expression “for special reasons” implies something narrower than this.’ The power of a judge of the High Court to grant the equivalent dispensation from the rules of that Court was considered in Gallo v Dawson (No 2) (1992) 109 ALR 319, where at 480 the Court endorsed the following statement of principle enunciated by McHugh J at first instance: ‘The discretion to extend time is given for the sole purpose of enabling the court to do justice between the parties…This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for an extension of time…When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal…’ (My emphasis appears in non-italics).

Ratio Decidendi

Legal Principle Established

Established by: CONTI J

Full text does not contain this section.