Seidler v University of New South Wales

[2011] FCA 1321

FEDERAL COURT OF AUSTRALIA

Seidler v University of New South Wales [2011] FCA 1321

Citation:		Seidler v University of New South Wales [2011] FCA 1321
Appeal from:		Seidler v University of New South Wales & Anor [2010] FMCA 887
Parties:		KATHRYN SEIDLER v UNIVERSITY OF NEW SOUTH WALES and AUSTRALIAN GRADUATE SCHOOL OF MANAGEMENT
File number:		NSD 1788 of 2011
Judge:		STONE J
Date of judgment:		18 November 2011
Catchwords:		PRACTICE AND PROCEDURE – Extension of time and leave to appeal from judgment of Federal Magistrates Court – decision below not attended by sufficient doubt to warrant grant of leave to appeal – leave not required in interests of justice – no sufficient explanation of delay – applicant made considered decision to delay seeking leave to appeal – same issues raised in multiplicity of proceedings –  application an abuse of process
Legislation:		Disability Discrimination Act 1992 (Cth) Federal Court of Australia Act 1976 (Cth) ss 50, 31A(2) Federal Magistrates Act 1999 (Cth) s 61 Human Rights and Equal Opportunity Commission Act 1986 (Cth) s 46PO
Cases cited:		Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Dye v Commonwealth Securities Limited [2010] FCAFC 115 Seidler v University of New South Wales [2011] FCA 1156 Seidler v University of New South Wales [2011] FCA 830
Date of hearing:	11 November 2011
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	33
The applicant appeared in person
Solicitor for the Respondents:	J Mattson, Bartier Perry

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1788 of 2011

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

KATHRYN SEIDLER
Applicant

AND:

UNIVERSITY OF NEW SOUTH WALES
First Respondent

AUSTRALIAN GRADUATE SCHOOL OF MANAGEMENT
Second Respondent

JUDGE:	STONE J
DATE OF ORDER:	18 NOVEMBER 2011
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1788 of 2011

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

KATHRYN SEIDLER
Applicant

AND:

UNIVERSITY OF NEW SOUTH WALES
First Respondent

AUSTRALIAN GRADUATE SCHOOL OF MANAGEMENT
Second Respondent

JUDGE:	STONE J
DATE:	18 NOVEMBER 2011
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. By application filed on 17 October 2011, the applicant, Kathryn Seidler, seeks an extension of time and leave to appeal from the judgment of Federal Magistrate Nicholls: Seidler v University of New South Wales [2010] FMCA 887. That decision was delivered on 18 November 2010, over 11 months ago. In order to succeed in her present application Ms Seidler needs (a) to provide a satisfactory explanation for this delay; and (b) to show that his Honour’s decision is attended by sufficient doubt to warrant its reconsideration.

   The decision of the Federal Magistrates Court

2. The Federal Magistrate’s decision concerned an application by Ms Seidler to reopen proceedings in the Federal Magistrates Court which had been discontinued by Notice of Discontinuance filed on 20 February 2009. Ms Seidler had brought those proceedings pursuant to s 46PO of the then Human Rights and Equal Opportunity Commission Act 1986 (Cth). She sought relief pursuant to the Disability Discrimination Act 1992 (Cth) in respect of allegations of direct disability discrimination by the respondents.

3. The issues before the Federal Magistrate were complicated by allegations of fraud which she made against her previous legal representatives and, as his Honour said, “possibly those of the respondents”.  

4. Ms Seidler had also brought proceedings against the respondents in the District Court of New South Wales in relation to a personal injury claim which she claimed, had arisen from the circumstances of her employment which also gave rise to the allegations of discrimination which were the subject of the discontinued proceeding in the Federal Magistrates Court.  The parties entered into negotiations with a view to settling the disputes in both proceedings.  A Heads of Agreement was signed on 14 October 2008.  It provided for the parties to settle the District Court proceedings and the proceedings in the Federal Magistrates Court for the sum of $65,000 including costs and expenses, and subject to the execution of the Deed of Release.  The Deed of Release was signed by Ms Seidler on 9 February 2009 and a Notice of Discontinuance was filed in the Federal Magistrates Court on 11 February 2009.

5. On 3 June 2010 the applicant filed an application in the Federal Magistrates Court seeking to set aside the Deed of Release and the Notice of Discontinuance.  She claimed that she had entered into the Deed of Release and had executed the Notice of Discontinuance as a consequence of, fraud, duress, undue influence, unconscionability and criminal collusion.  The application was heard over three days.  In his reasons for decision the Federal Magistrate gave a detailed account of the factual and procedural history of the matter.  I do not propose to repeat that history here.  It is sufficient for present purposes to summarise the more salient aspects of his Honour’s reasons.

6. The Federal Magistrate found that the applicant’s claims were without foundation. There was no evidence to support her claim that the settlement amount agreed upon was $80,000 rather than $65,000. His Honour also found that there was nothing other than the applicant’s “assertions before the Court to suggest that her counsel and solicitors did not comply with the strictures of their ethical duty towards her”: at [110]. His Honour added at [137]-[138]:

   It may well be that her lawyers put to her that the best course open to her was to sign the [Heads of Agreement].  It may also be that she was told that if she did not sign there was nothing further they could do to assist her.  None of this reveals any wrongdoing on her part.
   That Ms Seidler saw that she had no option but to sign the [Heads of Agreement] because she would be left without representation before the Court does not, on its own, reveal any “threat” by her lawyers in any prejudicial sense. Whatever words may have been used, it is difficult in the circumstances to see this other than as some misunderstanding on Ms Seidler’s part as to the stark realities left to her, even if some note of exasperation on the part of the lawyers entered into their advice in the face of what appeared to be her intransigence in understanding what they described as her poor chances of success.  This does not amount to duress on her part. 

7. The Federal Magistrate considered the applicant’s claim that the offer to settle was made by her lawyers without her authority.  The precise nature of the complaint was not clear however his Honour considered two alternatives.  His Honour said that if the complaint was that she gave no instructions to her solicitors to initiate settlement discussions then, “in the circumstances” which included that they brought the offer to settle to her, this did not reveal any wrongdoing or mistake on her lawyers’ part.  Alternately his Honour said that if the complaint was that she gave no instructions for what ultimately appeared in the Heads of Agreement then the complaint was not supported by the evidence.  In any event, his Honour noted, whatever was the case with the Heads of Agreement, Ms Seidler signed the Deed of Release “in full knowledge” that the amount of the settlement was $65,000.   

8. The Federal Magistrate also considered other allegations made by Ms Seidler.  They included complaints that the solicitors for the respondents had subpoenaed her medical records.  His Honour observed that in the context of Ms Seidler’s claim to have suffered medical problems arising from her work environment, this was not an unreasonable course.  Furthermore the complaint was inconsistent with Ms Seidler’s claim that the solicitors on both sides should have taken into account the medical disability revealed in those records and acted in an appropriate manner. 

9. The Federal Magistrate held, at [215]-[218] that he could see no basis to impugn either the Heads of Agreement or the Deed of Release.  His Honour ordered that the application to set aside the Notice of Discontinuance be dismissed.

10. In his reasons, the Federal Magistrate also considered Ms Seidler’s applications for orders suppressing certain documents and information.  His Honour refused to make suppression orders and, at [250]–[299] of his reasons discussed this issue in some detail.  His Honour referred to a number of authorities including the decision of the Full Federal Court in Dye v Commonwealth Securities Limited [2010] FCAFC 115. That decision was concerned with s 50 of the Federal Court of Australia Act 1976 (Cth) which is in similar terms to s 61 of the Federal Magistrates Act 1999 (Cth) which gives the Court the power to suppress evidence or names of persons where to do so is necessary in the interests of justice.

11. Federal Magistrate Nicholls observed that such a power cannot be exercised merely because it is “convenient, reasonable or sensible or to serve some notion of the public interest or as a result of a balancing exercise”; Dye at 10 per Rares J. His Honour noted at [267] that Ms Seidler had not sought to discharge the onus of persuading the Court that the orders should be made. She had referred to the fact that if the relevant material were not suppressed “it would be difficult for her to find suitable employment. Further, that she would have this difficulty if she was labelled as “disabled”.” His Honour commented that these matters did not overcome the greater public interest in open justice and continued at [270]-[272]:

    Further, in this regard, throughout the course of these proceedings, and indeed as before Smith FM, Ms Seidler has made serious allegations against a number of people, including academics at the University. Allegations of sometimes even “criminal” conduct were made against not only lawyers representing the respondents, but also her own lawyers. …

    In these circumstances the interests of an open system of justice are not just some abstract notion. Those against whom serious allegations, sometimes of a criminal nature, were made, but who were not parties to these proceedings, are entitled to benefit from an open system of justice, at least to the extent of fully understanding not only the disposition of these proceedings in which they were “named”, but being able to readily access at least the judgment of the Court.

    Ms Seidler chose to conduct her case in the way that she saw fit. I make no further comment about that. But a consequence of this is that she called into question the standing and reputation of a large number of people. Far from prejudicing the interests of justice, denying the orders sought by Ms Seidler now would actually promote those interests.

    The present application

12. At the hearing of the application for an extension of time and for leave to appeal from the judgment of the Federal Magistrates Court, Ms Seidler was invited to make submissions explaining why her application was brought many months after the decision of the Federal Magistrates Court.  She was also invited to explain the basis on which she would ground her appeal should she be given the leave sought. 

    The evidence

13. In opposing Ms Seidler’s application the respondents relied on the evidence of Mark Coolican Paul, the solicitor on the record for the respondents in this proceeding.  Mr Paul annexed to his affidavit of 7 November 2011, documents relevant to the history of the numerous proceedings between Ms Seidler and the respondents, some of which are referred to below.

14. In support of her application Ms Seidler relied on an affidavit sworn by Dr Ian De Saxe on 8 April 2011 attaching a psychiatric/psychological evaluation report in relation to Ms Seidler.  She also relied on two affidavits sworn by her on 14 September 2011 and 27 October 2011 respectively.  With great respect to Ms Seidler it is necessary to say that her two affidavits were of little assistance.  The earlier affidavit attached a draft Notice of Appeal which set out 79 grounds of appeal and sought 13 orders. 

15. The alleged grounds of appeal amounted to a diffuse and generalised criticism of the judgment and other submissions.   The affidavit of 27 October consisted of 30 pages largely consisting of submissions but also including references to legislation, precedent cases and reckless allegations of misconduct by her previous legal advisors and the solicitors for the respondents.  Annexed to the affidavit were some 60 pages of documents including correspondence and searches not relevant to the present application. 

16. The affidavit of Dr De Saxe does not assist.  It is clear that the doctor’s opinions are predicated on the facts contained in a statement of claim provided to him by Ms Seidler.  Those facts have not been established and conclusions drawn from them can have little if any weight. 

17. In short, there is nothing in any of the material filed by Ms Seidler that points to error in the Federal Magistrate’s decision.

    Whether Federal Magistrate’s decision warrants reconsideration

18. In her oral submissions at the hearing Ms Seidler put forward no coherent reason that would suggest that the Federal Magistrate’s decision was attended by sufficient doubt to warrant it being reconsidered.  Nor has she been able to provide any reason why the interests of justice would require this. 

19. The Federal Magistrate carefully considered the circumstances that led to the filing of the Notice of Discontinuance.  Ms Seidler was given a full opportunity to argue her case.  His Honour had difficulty in understanding much that was submitted by Ms Seidler.  He said that her submissions “required some considerable effort in order to pierce the hyperbole, jargon, emotion, irrelevancies and lack of real explanation and comprehension”.  This description might also be accurately applied to the submissions made in this proceeding.

20. Ultimately it is not in doubt that the Notice of Discontinuance was signed and filed by Ms Seidler.  His Honour did not accept Ms Seidler’s submissions that the Heads of Agreement and/or the Deed of Settlement were executed by her under duress.  Relevantly, as the written submissions for the respondents point out, Ms Seidler has not made any attempt to set aside the discontinuance of the District Court proceedings.  In my view if Ms Seidler were permitted to proceed to appeal the Federal Magistrate’s decision, the appeal would be doomed to failure.  I am also satisfied that leave is not required in the interests of justice.  This conclusion is sufficient, of itself, to warrant refusing the extension of time sought by Ms Seidler nevertheless I shall make some brief comments about the delay in seeking to appeal his Honour’s judgment.

    The applicant’s delay in seeking leave to appeal

21. The applicant must show that despite being many months out of time for lodging a notice of appeal, justice requires that she be given an extension of time.  She needs to give an explanation for her delay that is sufficient for that purpose.  After much prevarication Ms Seidler appeared to attribute her delay to ill health however that explanation cannot be accepted.  The evidence is consistent with Ms Seidler having made a deliberate decision to pursue other approaches to achieve her ends while at all times having in mind the possibility of an appeal. 

22. In the interim between the judgment of the Federal Magistrates Court and filing the present application Ms Seidler adopted other approaches to address her grievances against the respondents.  On 14 January 2011 she commenced new proceedings by filing a statement of claim against the respondents and others.  The Statement of Claim, which ran to 52 pages and contained 178 principal paragraphs, raised many of the same issues as were raised in the Federal Magistrates Court. 

23. The respondents to that application raised the Deed of Release as a bar to the proceeding and, on 9 June 2011, Cowdroy J ordered that judgment be entered for the respondents pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth): s 31A(2). His Honour said, at [68], that clause 2.1 of the Deed of Release was “clear and unambiguous” and extended to the claims made in the Statement of Claim. Furthermore, Cowdroy J noted, at [80], that the applicant had not sought to appeal the Federal Magistrate’s decision and was attempting to re-litigate matters already determined adversely to her. This, his Honour held, was an abuse of process such that the proceedings should be summarily dismissed.

24. The Deed of Release was again raised in proceedings before Flick J (NSD 52 of 2011) which were brought against the first and second respondents to the present application as well as others. The respondents had filed a notice of motion seeking, inter alia, orders pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth). His Honour ordered that judgment be entered for the respondents pursuant to that provision: Seidler v University of New South Wales [2011] FCA 830.

25. In his reasons for judgment, Flick J referred to the proceedings before Cowdroy J and expressed the view that the two proceedings were substantially the same and that the application and statement of claim were substantially identical to those considered by Cowdroy J.  His Honour rejected Ms Seidler’s application for leave to amend the statement of claim because the decision of Cowdroy J “embraced the case now sought to be advanced by way of amendment” and because Ms Seidler was “seeking to re-litigate in the present proceeding the very same facts and causes of action as had been resolved by Cowdroy J”: at [33]-[34]. 

26. On 6 October Perram J dismissed Ms Seidler’s applications for leave to appeal the judgments of both Cowdroy J and Flick J and ordered that Ms Seidler pay the respondents’ costs on an indemnity basis: Seidler v University of New South Wales [2011] FCA 1156. His Honour gave a brief summary of the reasons given by the Federal Magistrate in the judgment in respect of which an extension of time and leave to appeal is now sought. Justice Perram noted that Ms Seidler had not sought to appeal from this judgment.

27. The respondents contend that Ms Seidler was aware at all relevant times that she might appeal from the Federal Magistrate’s decision but that she made a tactical decision not to do so.  The written submissions made on behalf of the respondents in the proceedings before Cowdroy J were annexed to Mr Paul’s affidavit.  At numerous points in those submissions the respondents referred to the applicant’s failure to appeal from his Honour’s decision and to their intention to “plead res judicata and or issue estoppel to all matters which seek to cavil with or re-litigate the subject matter of the judgment”.  Despite this the applicant persisted with the proceeding before Flick J and the applications for leave to appeal brought before Perram J.  The transcript of the hearing before Cowdroy J records that his Honour asked the applicant if she wanted to say anything about her failure to appeal.  In response Ms Seidler said that she did not have to appeal; that she tended to agree, presumably with the judgment, and that it was “very sound” in some respects.   She also commented that it would be “futile” to try to reopen the discontinued proceeding.

28. In a letter faxed to the Federal Court on 11 June 2011 the applicant wrote that there was “no basis that I should waste the courts [sic] time or mine on attempting an appeal on that FM Nicholls judgment when there was no legal basis to do so – it had to be a new claim – so there is no basis to question why I did not appeal that judgment”.  Despite this, in a letter dated 16 September 2011 sent by email to the respondents and copied to Mr Paul, the applicant says that the respondents need to contact the court “for rescheduling for a late leave to appeal filing in the FM Nicholls matter”. 

1. The applicant sent a further email to the respondents and their legal advisors on 7 October 2011, which was the day after Perram J dismissed her applications for leave to appeal from the judgments of Cowdroy J and Flick J and ordered that she pay indemnity costs.  The email asserts that she is not willing to pay any costs and says:

   I do not know if you were not listening, but I was, and I may still be able to seek leave to appeal on the FM Nicholls ruling …

   Later in the same email the applicant returns to the subject and says:

   In addition, as you know I can run proceedings against the legal, engage in discovery, then seek late leave to appeal on FM Nicholls at any time.

   If you want this over then you have no choice. 

2. On the evidence before me I am satisfied that Ms Seidler was aware, at all relevant times, that she could seek leave to appeal from the Federal Magistrate’s decision and that she made a deliberate decision not to do this but to pursue her claims by other means.  Having been unsuccessful she now seeks to pursue an appeal.  Pursuant to the Federal Court Rules applicable at the time, the applicant had 21 days to lodge an application for leave to appeal.  There is no evidence that she was prevented from making an application by any factors beyond her control; she chose not to do so for her own reasons. 

3. The time limits imposed, in this case, by the Federal Court Rules are there for a purpose and are to be taken seriously.  As McHugh J said, speaking of statutory limitation periods, in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553:

   A limitation period … represents the legislature’s judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated.  Against this background, I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal to or greater than those provisions that enact limitation periods.  A limitation provision is the general rule; an extension provision is the exception to it.

4. Having decided for her own reasons to delay seeking leave to appeal, Ms Seidler took the risk that her application would be refused.  The policy considerations to which McHugh J referred are a good reason why, in these circumstances, leave should be denied.  In addition the present application is an abuse of the processes of the Court.  This is a matter of real concern to the respondents.  In his oral submissions, Mr Mattson who appeared for the respondents said:

   [I]t is very clear … that other than perhaps some very generalised complaints about suppression and wanting to re-argue the matter again, that this case isn’t about seeking an extension of time to appeal Nicholls FM and seeking leave to appeal it and identifying what is wrong.  This is just an opportunity to make more generalised complaints and harass and oppress the respondents by having to turn up to court on every occasion to hear continual complaints being made, with the belief that the applicant can get remedies which the court can’t give. 

5. In my view there is some force in these observations.  Whatever grievances, real or imagined, that the applicant may have arising out of the matters that are the subject of the Federal Magistrate’s decision, or indeed, the judgments of Cowdroy J, Flick J or Perram J, it would seem they are not susceptible to resolution in the courts.  The respondents have been subjected to a plethora of litigation well beyond what is reasonable or necessary in the circumstances.  For all of the above reasons the application in this proceeding must be dismissed with costs.

I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:
Dated:       18 November 2011