Walsh v Registrar, Supreme Court of Norfolk Island
[2018] FCA 1075
•19 July 2018
FEDERAL COURT OF AUSTRALIA
Walsh v Registrar, Supreme Court of Norfolk Island [2018] FCA 1075
Appeal from: Application for extension of time: Registrar, Supreme Court of Norfolk Island v Walsh (No 5) [2018] NFSC 1 File number: VID 324 of 2018 Judge: WIGNEY J Date of judgment: 19 July 2018 Catchwords: PRACTICE AND PROCEDURE – application for extension of time to file appeal from judgment of Supreme Court of Norfolk Island – where primary judge found legal practitioner guilty of professional misconduct and unsatisfactory professional conduct – where primary judge ordered removal of legal practitioner’s name from Register of Practitioners and suspended his right to practise on Norfolk Island for ten years
PRACTICE AND PROCEDURE – whether application for extension of time should be referred to a Full Court pursuant to s 25(2)(b) and (e) Federal Court of Australia Act 1976 (Cth) – whether proposed grounds of appeal have sufficient merit to warrant extension of time – whether adequate explanation for delay
Legislation: Federal Court of Australia Act 1976 (Cth), ss 24, 25
Norfolk Island Act 1979 (Cth), s 18
Public Interest Disclosure Act 2013 (Cth)
Racial Discrimination Act 1975 (Cth)
Federal Court Rules 2011 (Cth), r 36.03
High Court Rules 1952 (Cth)
Legal Profession Act 1993 (NI), s 18A
Supreme Court Act 1960 (NI), s 32
Vexatious Proceedings Act2008 (NSW)
International Covenant on Civil and Political Rights. Opened for signature 19 December 1996. 999 UNTS 171. 6 ILM 386 (entered into force 23 March 1976) (ICCPR)
Cases cited: Gallo v Dawson (1990) 93 ALR 479
Gallo v Dawson (No 2) (1992) 109 ALR 319
Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344
Parker v The Queen [2002] FCAFC 133
Registrar, Supreme Court of Norfolk Island v Walsh [2016] NFSC 1
Registrar, Supreme Court of Norfolk Island v Walsh (No 2) [2017] NFSC 2
Registrar, Supreme Court of Norfolk Island v Walsh (No 3) [2017] NFSC 4
Registrar, Supreme Court of Norfolk Island v Walsh (No 4) [2017] NFSC 7
Registrar, Supreme Court of Norfolk Island v Walsh (No 5) [2018] NFSC 1
Re Minister for Immigration and Multicultural Affairs; ex parte Epeabaka (2001) 206 CLR 128; [2001] HCA 23
SBBA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 90
Vaysman v Deckers Outdoor Corporation Inc (2014) 222 FCR 387; [2014] FCAFC 60
Date of hearing: 10 July 2018 Registry: Victoria Division: General Division National Practice Area: Other Federal Jurisdiction Category: Catchwords Number of paragraphs: 82 Counsel for the Applicant: The Applicant appeared in person Solicitor for the Respondent: Sparke Helmore Lawyers Counsel for the Respondent: Mr R Knowles ORDERS
VID 324 of 2018 BETWEEN: JOHN WALSH
Applicant
AND: REGISTRAR OF THE SUPREME COURT OF NORFOLK ISLAND
Respondent
JUDGE:
WIGNEY J
DATE OF ORDER:
19 JULY 2018
THE COURT ORDERS THAT:
1.The applicant’s application for an extension of time filed on 26 March 2018 be dismissed.
2.The applicant pay the respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
WIGNEY J:
The applicant, Mr John Walsh, who also refers to himself as Sir John Walsh of Brannagh, formerly worked as a legal practitioner on Norfolk Island. On 23 February 2018, however, the primary judge, sitting as a judge of the Supreme Court of Norfolk Island, ordered that Mr Walsh’s name be removed from the Register of Practitioners of the Supreme Court, and that his right of practise on Norfolk Island as a barrister or solicitor be suspended for 10 years. Those orders were made as a consequence of earlier findings made by the primary judge, on 22 December 2017, that Mr Walsh was guilty of professional misconduct and unsatisfactory professional conduct under s 18A of the Legal Profession Act 1993 (NI).
The primary judge found that Mr Walsh had knowingly made a number of false representations to various people. Those representations included: a representation to another legal practitioner that it was necessary for him to become a member of the Norfolk Island Bar Association, upon payment of a fee of $200, as a requirement under the Legal Profession Act for obtaining registration as a legal practitioner on Norfolk Island; a representation that the Norfolk Island Bar Association was a professional representative body for legal practitioners practising on Norfolk Island; a representation that he held a recognised judicial office as Chief Justice of the International Tribunal of Natural Justice; and a representation that he was a Knight under the Australian or Imperial Honours system, entitling him to use the honorific “Sir”.
Appeals from the Supreme Court lie to a Full Court of this Court: ss 24(1)(b) and 25(1) of the Federal Court of Australia Act 1976 (Cth). On 26 March 2018, Mr Walsh filed an application for an extension of time in which to file a notice of appeal from the orders and declarations made by the primary judge, including the orders made on 23 February 2018 and the orders and declarations made on 22 December 2017. It was necessary for Mr Walsh to apply for an extension of time because he did not file any appeal within 21 days after the date on which the judgment appealed from was pronounced or the order was made: r 36.03 of the Federal Court Rules 2011 (Cth). An application for an extension of time must be heard by a single Judge unless, relevantly, a Judge directs that the application be heard and determined by a Full Court: s 25(2)(b) and (e) of the Federal Court Act.
For the reasons that follow, Mr Walsh’s application for an extension of time to file a notice of appeal should be dismissed. It is neither necessary nor appropriate to refer the application to be heard and determined by a Full Court.
PROCEDURAL HISTORY AND JUDGMENTS OF THE PRIMARY JUDGE
On 31 March 2015, the Registrar of the Supreme Court received a complaint concerning Mr Walsh from Dr Ping-Fat Sze. The complaint concerned representations that Dr Sze alleged Mr Walsh made to him in 1996 concerning the requirements for practising as a legal practitioner on Norfolk Island. According to Dr Sze, Mr Walsh told him that, in order to be granted a Norfolk Island Practising Certificate and be admitted to practise as a legal practitioner, it would be necessary for him to become a member of the Norfolk Island Bar Association. Some considerable time later, in 2007, Dr Sze acted in reliance on that representation and paid Mr Walsh $200, supposedly in return for “life membership” of the Norfolk Island Bar Association.
On 22 July 2015, the Registrar wrote to Mr Walsh, advising him of Dr Sze’s complaint, and requiring his response to various matters relating to the complaint within 14 days. Mr Walsh did not respond to the Registrar’s letter within 14 days. The Registrar did, however, receive a letter dated 31 July 2015 on the letterhead of the Norfolk Island Bar Association. That letter, which was said to be from a Ms Jodie Anderson, included the following:
[A]although [sic] the letter was addressed to Dr Walsh, we trust that you will understand that it would be inappropriate for Dr Walsh to respond since he was appointed to judicial office in February and assumed the position of Chief Justice of the International Tribunal for Natural Justice in London.
Mr Walsh did finally send a substantive reply to the Registrar’s letter on 17 August 2015.
The Registrar investigated Dr Sze’s complaint and Mr Walsh’s response to it.
On 14 April 2016, the Registrar commenced the proceeding in the Supreme Court against Mr Walsh, seeking a declaration that Mr Walsh was guilty of professional misconduct or unsatisfactory professional conduct and an order pursuant to s 18A of the Legal Profession Act that Mr Walsh’s name be removed from the Register of Practitioners of the Supreme Court. The Registrar alleged that: Mr Walsh failed to comply with a duty to act with integrity and candour as a legal practitioner by knowingly making false and reckless representations in relation to the requirements of obtaining registration as a legal practitioner on Norfolk Island, a purported organisation known as the Norfolk Island Bar Association, his being a judicial officer, holding appointment as the Chief Justice of the International Tribunal of Natural Justice, and his entitlement to recognition as a Knight under the Australian or Imperial Honours system; Mr Walsh failed to comply with his duty to know and understand the law; Mr Walsh failed to respond personally to the Registrar’s request for information about a complaint concerning his professional conduct; and Mr Walsh made false, discourteous or offensive statements about other legal practitioners.
In June 2016, Mr Walsh filed an interlocutory application in the Supreme Court seeking an order that the Registrar’s application be struck out. He initially claimed that the proceeding was a vexatious proceeding as defined in the Vexatious Proceedings Act2008 (NSW), but ultimately accepted that that Act could not apply to the proceeding. He nonetheless claimed that the proceeding was an abuse of process because: there was “no indication as to the justification as to the reasonableness or legitimacy of the complaint”; the proceeding was instituted and pursued to harass and annoy him; the complaint was frivolous; and the Registrar had not complied with the “model litigant rules”. It would appear that Mr Walsh attempted to demonstrate that the Dr Sze’s complaint was unmeritorious for various reasons.
On 29 July 2016, the primary judge rejected Mr Walsh’s contentions and dismissed the application: Registrar, Supreme Court of Norfolk Island v Walsh [2016] NFSC 1. It would appear that the primary judge rejected Mr Walsh’s allegations concerning the conduct of the Registrar on the basis that they were irrelevant, baseless and scandalous. His Honour found (at [20]) that Mr Walsh had “fallen well short of establishing any abuse of process in relation to these proceeding[s] which are by no means foredoomed to fail”. His Honour also found (at [19]) that, to the extent that Mr Walsh had raised certain factual matters concerning the complaint, they were matters for trial. Mr Walsh did not apply for leave to appeal from that judgment, but apparently now wishes to file a notice of appeal which includes an appeal from it.
The trial of the Registrar’s application commenced before the Chief Justice of the Supreme Court on 10 April 2017. During the course of the Registrar’s evidence, however, Mr Walsh applied for the Chief Justice to recuse himself. The Chief Justice acceded to that application and the hearing was adjourned: Registrar, Supreme Court of Norfolk Island v Walsh (No 2) [2017] NFSC 2. The matter was eventually listed for hearing to commence on 4 September 2017 before the primary judge. Curiously, while Mr Walsh succeeded in having the Chief Justice recuse himself, he nonetheless apparently now wishes to file a notice of appeal which includes an appeal from that judgment.
Mr Walsh applied for an adjournment of the hearing shortly before it was due to commence. Mr Walsh advanced two grounds for the adjournment. The first was that his solicitor had died, his original barrister was no longer acting for him and he had been unable to find suitable replacements for either. The second concerned his ill-health.
On 31 August 2017, the primary judge rejected both of Mr Walsh’s grounds for seeking an adjournment and refused the adjournment application. His Honour delivered ex tempore reasons and published written reasons on 7 September 2017: Registrar, Supreme Court of Norfolk Island v Walsh (No 3) [2017] NFSC 4. In relation to Mr Walsh’s ill-health, the primary judge found that Mr Walsh’s evidence concerning his ill-health was insufficient to support any conclusion that Mr Walsh was unable to attend court for the hearing. That was, and is, hardly a surprising conclusion. The two medical certificates relied on by Mr Walsh said no more than that Mr Walsh “has a medical condition and will be unfit for work” for the period from 17 August to 11 September 2017 and 29 August to 14 September 2017.
In relation to Mr Walsh’s inability to retain a suitable solicitor and barrister, the primary judge was not satisfied that Mr Walsh had made appropriate efforts in that regard. The primary judge also noted that Mr Walsh was an experienced barrister and that the evidence and submissions which he wanted to rely on had already been filed.
It should be noted that Mr Walsh did not appear at the hearing of his adjournment application. In his judgment in respect of the adjournment application, the primary judge recited the following events and circumstances in relation to Mr Walsh’s failure to appear (at [12]):
On 30 August 2017 my associate informed me that the respondent had written to these chambers querying how the hearing of the adjournment application was to be heard, noting that he was ‘…practically immobile and restricted to [his] room’. My associate replied to the respondent by email to inform him that I was content for the respondent to appear by telephone at the hearing. Later that day, the respondent provided to my associate both a landline number as well as the respondent’s personal mobile telephone number. Immediately prior to the adjournment application coming on for hearing on 31 August 2017, a number of attempts were made by the Court’s court officer to contact the respondent on both of those phone numbers. The respondent did not answer either of the landline or his mobile. Thereafter, the reception at the hotel where the respondent is living was contacted by the court officer, and reception was requested to send someone to the respondent’s room to see if there was any difficulty and to ensure that he was able to attend by telephone. I was informed at that time that the reception staff had informed the court officer that the respondent was not in his hotel room.
Mr Walsh did not seek leave to appeal from the refusal of his adjournment application. He nonetheless apparently now wishes to file a notice of appeal which includes an appeal from that judgment.
The substantive hearing before the primary judge commenced on 4 September 2017 and concluded on 7 September 2017. There was no appearance by Mr Walsh on any day of the hearing. There is no suggestion that Mr Walsh attempted to contact the Registrar or the court to explain his non-appearance.
The Registrar read six affidavits, including affidavits sworn by the Registrar and Dr Sze. Four of the deponents of those affidavits were called and gave additional oral testimony. The primary judge also had regard to Mr Walsh’s defence, a lengthy affidavit that had been sworn and filed by Mr Walsh, and written opening submissions that had been filed on Mr Walsh’s behalf.
The primary judge found that all but one of the Registrar’s allegations had been made out and that Mr Walsh was guilty of professional misconduct and unsatisfactory professional conduct: Registrar, Supreme Court of Norfolk Island v Walsh (No 4) [2017] NFSC 7.
In relation to the allegation that Mr Walsh made false representations to Dr Sze concerning the requirements for obtaining registration as a legal practitioner on Norfolk Island, the primary judge found (at [58]):
I find that Mr Walsh made the representation as alleged by Dr Sze, and which induced Dr Sze to pay to Mr Walsh AUD 200. The representation was to the effect that membership of the NIBA was a condition of obtaining registration as a legal practitioner under the LPA in Norfolk Island. I find that Mr Walsh did so knowing that the representation was false. He then knew that there was no requirement for anyone seeking to practice as a lawyer in Norfolk Island that they be a member of the so called NIBA. Mr Walsh’s conduct, in this respect, as well as concerns the other grounds involving dishonest and false representations, may be aptly described as ‘grave impropriety affecting his professional character’ (Kennedy) and would not be within the realm of ‘a generally accepted standard of common decency and common fairness’: Clyne v NSW Bar Association (1960) 104 CLR 186. These are egregious examples of professional misconduct, by virtue of their seriousness. He thereby breached his duty as a legal practitioner to act with integrity and candour, and is thus guilty of professional misconduct.
In relation to the alleged representations concerning the Norfolk Island Bar Association, the primary judge found that the weight of the evidence was that the Norfolk Island Bar Association was, in effect, nothing more than an informal lunch and drinks club attended mostly, but not exclusively, by lawyers on Norfolk Island. Despite that fact, Mr Walsh had knowingly misrepresented to the International Bar Association, the South Pacific Lawyers Association, Dr Sze and the general public that the Norfolk Island Bar Association was a professional representative body for legal practitioners practising on Norfolk Island and that he was its President.
The primary judge rejected the Registrar’s allegation that Mr Walsh failed in his duty to know and understand the law concerning the requirements for admission or registration as a legal practitioner on Norfolk Island. His Honour found, in that regard, that Mr Walsh well knew the law in relation to those matters, but chose to make false representations concerning them.
In relation to the representation concerning Mr Walsh holding judicial office, the primary judge found that Mr Walsh caused the letter dated 31 July 2015, on the letterhead of the Norfolk Island Bar Association, to be sent to the Registrar. His Honour also found that the representation in that letter that Mr Walsh held judicial office was false because the International Tribunal for Natural Justice was not a judicial body. Mr Walsh accordingly breached his duty as a legal practitioner to act with integrity and candour towards the Supreme Court.
Similarly, the primary judge found that Mr Walsh had represented to the Registrar and the public at large that his proper title was “Sir John Walsh of Brannagh” and that, insofar as that suggested that Mr Walsh had an entitlement to recognition as a Knight under the Australian or Imperial Honours system, that representation was false.
Finally, the primary judge found that Mr Walsh failed in his duty as a lawyer by failing to personally respond to the Registrar’s letter concerning the complaint within a reasonable time, and by making offensive, discourteous and inflammatory statements concerning the conduct of three Norfolk Island legal practitioners. Those findings supported the finding of unsatisfactory professional conduct.
Having made declarations that Mr Walsh was guilty of professional misconduct and unsatisfactory professional conduct, the primary judge listed the matter for further hearing on 5 February 2018. His Honour made orders in relation to the filing of submissions concerning what orders should be made as a consequence of the declarations. Mr Walsh did not seek to file a notice of appeal from the 22 December 2017 judgment or the declaratory orders prior to the further hearing on 5 February 2018.
Mr Walsh did not comply with the primary judge’s order to file written submissions. He appeared at the hearing, but apparently did not make any relevant submissions. In the judgment handed down on 23 February 2018, the primary judge made the following observations concerning Mr Walsh’s conduct at the hearing (Registrar, Supreme Court of Norfolk Island v Walsh (No 5) [2018] NFSC 1 at [40]):
The respondent in his oral submissions repeatedly sought to impugn the Court’s findings contained in the Judgment. Having attempted to restrict him from making such submissions, but rather to make relevant submissions, on five occasions, the Court declined to hear the respondent further as he was intent on engaging in a de facto appeal rather than the matter before the Court. He has demonstrated no contrition but is resolute in his view that he has done nothing wrong.
The primary judge found that Mr Walsh’s misconduct was “dishonest, egregious and of grave impropriety” (at [28]) and that he was not a fit and proper person to practise law on Norfolk Island (at [43]). As noted earlier, his Honour ordered that Mr Walsh’s name be removed forthwith from the Register of Practitioners of the Supreme Court of Norfolk Island and that his right to practise on Norfolk Island as a barrister, solicitor, or barrister and solicitor, be suspended for 10 years. His Honour also ordered, amongst other things, that Mr Walsh reimburse Dr Sze the sum of $200 with interest payable from 1 July 2007 and that the parties file and serve minutes of the proposed order as to the amount of interest. Orders in relation to the interest were made on 1 March 2018.
MR WALSH’S APPLICATION FOR EXTENSION OF TIME
Mr Walsh was required to file any notice of appeal within 21 days after the date on which the judgment appealed from was pronounced or the order was made: see r 36.03 of the Federal Court Rules. That meant that if Mr Walsh wanted to appeal against the judgment pronounced on 23 February 2018, or the orders made on that day, he was required to file a notice of appeal by 19 March 2018: see r 1.61 of the Federal Court Rules. He did not do so.
It should perhaps also be noted that there is an issue concerning whether Mr Walsh was also required to seek leave to appeal. Section 32 of the Supreme Court Act 1960 (NI) provides as follows:
Appeals in civil cases
32. (1)The Federal Court of Australia has jurisdiction to hear and determine appeals from every judgment (whether final or interlocutory) of the Supreme Court in a civil matter that —
(a)is given or pronounced for, or in respect of, any sum or matter at issue amounting to or of the value of $3000;
(b)involves directly or indirectly any claim, demand or question to or respecting any property or any civil right amounting to, or of the value of, $3000;
(c)affects the status of any person under a law relating to aliens, marriage, divorce, bankruptcy or insolvency; or
(d)is one with respect to which the Federal Court of Australia thinks fit to give leave or special leave to appeal.
(2)An appeal may not be brought from an interlocutory judgment or order, or from a decision of the Supreme Court or a Judge with respect to costs that are in its or his discretion, except by leave of the Federal Court of Australia.
(3) An appeal does not lie from a judgment given by consent.
(4)When an order granting leave to appeal is made by the High Court, the Registrar of the Supreme Court shall forward certified copies of the proceedings and evidence in the case to the Principal Registrar of the High Court.
Mr Walsh’s appeal does not appear to fit comfortably within any of the categories of case in s 32(1)(a), (b) or (c). It is perhaps arguable that his matter concerns a “civil right”, being his right to practise his profession on Norfolk Island, and therefore falls within paragraph (b). It is, however, unclear whether it could be said that his right to practise was a civil right “amounting to, or of the value of, $3,000”. It is also unclear how s 32 of the Supreme Court Act relevantly applies in light of the operation of s 24(1)(b) of the Federal Court Act, which appears to confer a right of appeal: see in that context s 18 of the Norfolk Island Act 1979 (Cth).
It is unnecessary to decide this issue. The Registrar did not contend that Mr Walsh required leave to appeal. He also appeared to accept that, if it was appropriate to grant Mr Walsh an extension of time, it would equally be open to grant him leave to appeal, if leave to appeal was necessary. It could also, in that context, fairly be said that the considerations relevant to the exercise of the discretion to extend time to file a notice of appeal are, for the most part, similar to the considerations relevant to the question of the grant of leave, at least in the context of this case. As will be seen, the critical consideration in Mr Walsh’s case concerns the merits of his proposed appeal. If Mr Walsh was able to persuade the Court to extend time, it would most likely follow that he would also be granted leave to appeal, if leave was necessary.
On 26 March 2018, Mr Walsh filed an application for an extension of time to file a notice of appeal, together with an affidavit and draft notice of appeal. The filed copies of the application and affidavit were apparently incomplete, though that was subsequently remedied. They were also, to say the very least, rather unsatisfactory.
The draft notice of appeal stated that Mr Walsh appealed not only from the judgment and orders of 23 February 2018, but also the judgment and orders of 29 July 2016, 10 April 2017, 31 August 2017, 7 September 2017, 22 December 2017 and 1 March 2018. The draft grounds of appeal were said to be (as drafted):
(1) The proceedings were in breach of the Public Interest Disclosure Act 2013.
(2) The orders and judgment were pre-determined.
(3)The appellant was unable to be present at the hearing owing to medical incapacity such being known to the court.
Mr Walsh’s affidavit stated:
Today I sought to file an appeal against judgment and orders culminating in an order made 1st March 2018. I had been told that I had 28 days to file an appeal. I have been unwell and have severe eye problems and today is the first day I have been able to attend the Registry.
Mr Walsh’s application for an extension of time was listed for a case management hearing on 29 May 2018. Mr Walsh was ordered to file and serve any affidavits, any further draft notice of appeal and an outline of submissions in support of his application for an extension of time on or before 19 June 2018. Mr Walsh complied with that order, at least to the extent that he filed a further affidavit and written submissions on 18 June 2018. He did not file a further draft notice of appeal.
In his further affidavit, Mr Walsh asserted that, when he sought to file his notice of appeal, the Registrar had advised him that he was one day late. If that is what Mr Walsh was told, it was incorrect. Even if the 21-day period commenced after the making of the 1 March 2018 orders, which is doubtful given that those orders related only to the interest payable on the $200 that Mr Walsh was required to reimburse to Dr Sze, the notice of appeal was required to be filed by 23 March 2018. It was not filed until 26 March 2018, though there was an intervening weekend. In any event, the further affidavit did not provide any further or additional explanation for why Mr Walsh did not file his appeal within time.
Mr Walsh’s further affidavit also addressed, or purported to address, the circumstances in which he failed to appear at the hearing of his adjournment application on 31 August 2017. It referred to paragraph 12 of the judgment of the primary judge handed down on 31 August 2017 concerning the adjournment application. That paragraph, extracted earlier in these reasons, referred to the attempts to contact Mr Walsh, both by telephone and via staff at the hotel where he was staying, on the day of the hearing of the adjournment application. Mr Walsh’s affidavit asserted the following in relation to those events:
Both the statements are completely false. In relation to the affidavit, it was not sworn at 205 William Street Melbourne. It was sworn in my room at the Adina Apartment Hotel at 189 Queens Street Melbourne. This supported by the Statutory Declaration made by Julie Anne Pho. In relation to the false statement “that the respondent was not in his hotel room” the simple fact is that at the time of the hearing on the 31st August 2017, I was unconscious in the room and had been for several hours and it wasn’t until later in the day when the duty manager and two staff members came to the room, as they had been contacted by a colleague who was concerned knowing that I was in ill health, asked them to go to the room to check on my condition. When the duty manager and staff members entered the room, I was lying in bed unconscious and awoken by their entrance.
The affidavit also referred to an affidavit that was sworn and filed by Mr Walsh in support of his application to strike out the proceeding (affidavit sworn on 6 June 2016) and the lengthy affidavit that Mr Walsh had sworn and filed in defence of the substantive proceeding (affidavit sworn 27 October 2016). Mr Walsh tendered copies of those affidavits in support of his application for an extension of time.
The balance of Mr Walsh’s further affidavit contained various contentions or arguments which are of marginal, if any, relevance to the extension application.
Mr Walsh’s written submissions contained a number of arguments or contentions which purported to relate to his proposed grounds of appeal.
First, Mr Walsh submitted that the “entire proceedings [were] an abuse of process”. The basis of that contention appeared to be that, while complaints concerning other practitioners had been made to the Registrar in past years, none of them had been referred to the Supreme Court. It should perhaps be reiterated, in this context, that Mr Walsh had unsuccessfully attempted to strike out the Registrar’s application as an abuse of process. He did not seek leave to appeal from the primary judge’s rejection of his argument that the application was an abuse of process. Mr Walsh’s draft notice of appeal also does not include a ground that the proceeding was an abuse of process, though it would seem that Mr Walsh’s contention that the proceeding was an abuse of process overlaps to a certain extent with his claim that the proceeding was in breach of the Public Interest Disclosure Act 2013 (Cth).
Second, Mr Walsh contended that the “entire proceedings were in breach of modern litigant rules”. It is, however, unclear exactly what those rules were said to be, let alone how they were breached. Having regard to the contentions advanced by Mr Walsh in support of his application to strike out the proceeding, it may be that this was intended to be a reference to the “model litigant rules”. In any event, the substance of Mr Walsh’s complaint appeared to have something to do with the fact that the Registrar was employed by the Department of Infrastructure, Regional Development and Cities. Whatever the complaint may be, it does not readily fall within any of the grounds of appeal referred to in Mr Walsh’s draft grounds of appeal.
Third, Mr Walsh alleged that the issue and continuation of the proceedings against him were in “clear breach of the Public Interest Disclosure Act of the Commonwealth”. That was said to be because the proceedings against him were issued two days after he “disclosed information about corrupt practices involving a government instrumentality and officials”.
Fourth, Mr Walsh asserted that the Chief Justice of the Supreme Court clearly issued the instructions and authorised the commencement of the proceedings against him and it remains unclear who prepared the pleadings. The relevance of that contention, and how it related to his proposed appeal, is not readily apparent.
Fifth, Mr Walsh submitted that the allegations against him are “serious criminal offences” and he should accordingly have been afforded the “protection of a criminal trial, including the right to a jury”. This allegation appears to go well beyond Mr Walsh’s proposed grounds of appeal.
Sixth, Mr Walsh asserted that his civil rights had been “gravely affected by the proceedings”, that the proceedings were in “breach of the International Convent [sic] of Civil and Political Rights” and “an implied breach of the Racial Discrimination Act” on the basis that he does pro bono work for indigenous people in Australia. Those are not matters that were addressed at all in Mr Walsh’s affidavit evidence. The precise bases of the alleged breaches is also, to say the very least, somewhat unclear.
Seventh, Mr Walsh made a number of submissions which appeared to challenge factual findings made by the primary judge. He asserted, for example, that the Registrar was in possession of information which would disprove some of the allegations against him. He also claimed that Dr Sze still claims to be a member of the Norfolk Island Bar Association.
Eighth, Mr Walsh asserted that the primary judge “clearly ignored the medical evidence” and proceeded with the hearing knowing that he was “incapable of being present”.
Mr Walsh made oral submissions in support of his extension application. His oral submissions addressed his state of health on the day that his adjournment application was heard. He maintained that he was unconscious in his hotel room for most of that day. He repeated his claim that the Chief Justice of the Supreme Court issued the instructions and authorised the commencement of the proceedings against him and appeared to assert, in effect, that it should be inferred that the Chief Justice also prepared the pleadings. He submitted that that showed that the proceeding was an abuse of process.
In relation to his claim that the proceedings were in breach of the Public Interest Disclosure Act, Mr Walsh referred to paragraph 86 of his affidavit sworn on 27 October 2016, which stated as follows:
I note from the affidavit of Arthur Willson dated 17 May 2016 that the originating process was not served on me until 17 May notwithstanding that the originating application Form 2.7 had been filed on 14 April 2016 with the Court Registry. It is noted that this was two days after my advice regarding corruption to the Administrator, the Chief Executive Officer, and the Executive Director. I refer to my advice on 12 April 2016, and to my initial report to the Administrator, the Hon. Grant Tambling on 25 May 2006. In this regard, I refer to and repeat paragraph 23 of my affidavit sworn on 6 June 2016. It would appear that these instant proceedings may very well be in breach of the Public Interest Disclosure Act 2013 (Cth).
Exhibit JWB6, which Mr Walsh appears to contend constituted his “advice concerning corruption”, is a short email from “Dr John Walsh of Brannagh” to Mr Jon Gibbons sent on 12 April 2016, which stated:
Dear Jon, Although I have headed this as Confidential please feel free to pass this information on to Peter Gesling, Gary Hardgrave and Paul Fletcher.
Today I spoke to one of my contacts from the Hong Kong Jockey Club. It appears that CitiBet And BetHQ are controlled by an international identity, Wei Seng Paul Phua, a person linked to the 14K Triad.
I was advised that this is known to the Australian Federal Police.
Surprise was expressed that even preliminary inquiries from the N.I.G.A. would have elicited sufficient information to ring alarm bells.
The suggestion was made that inquiries "should follow the money". It gets mysteriouser and mysteriouser. Kind regards, John W.B.
When pressed in the course of his oral submissions, Mr Walsh was unable to identify what provision of the Public Interest Disclosure Act was breached, or what the implications or relevance of any such breach were to his appeal. His argument appeared to amount to no more than that if the proceeding involved a breach of the Public Interest Disclosure Act, it must necessarily follow that the proceeding was an abuse of process.
In support of his contention that the proceeding was “pre-determined”, Mr Walsh submitted that the primary judge’s bias was clear from his Honour’s demeanour during the hearing of Mr Walsh’s application to strike out the Registrar’s application. He submitted that, during that hearing, the primary judge spoke to him in a “demeaning and discourteous way” and did not appear to be interested in hearing his submissions in relation to the alleged abuse of process and breach of the “model litigant rules”. He took issue with the primary judge’s findings that the allegations he had made against the Registrar were baseless. He claimed that the primary judge’s published reasons in relation to the rejection of his claim of abuse of process differed from his Honour’s oral ex tempore reasons. Finally, in relation to the allegation of bias on the part of the primary judge, Mr Walsh submitted that the primary judge plainly did not like him. The basis for that assertion was said to be:
He [the primary judge] wasn’t sure whether I was a Scott or Irish and he got – seemed to get very upset when I said, although I’m of Irish lineage, our family is recorded at the Court of the Lord Lyon in Edinburgh, and that seemed to upset him for some reason. The Court of the Lord Lyon in Edinburgh is the equivalent of the College of Arms in London. It’s the Scottish version.
In relation to his contention that he was unable to be present at the hearing due to medical incapacity, Mr Walsh reiterated his claim that he was unconscious in his hotel room on the day that his adjournment application was heard. He took issue with the primary judge’s findings concerning the circumstances of his non-appearance.
Mr Walsh confirmed that his proposed grounds of appeal were the three grounds outlined in his application for an extension of time.
RELEVANT PRINCIPLES – EXTENSION OF TIME TO APPEAL
The principles governing the exercise of the Court’s discretion to grant an extension of time within which to file a notice of appeal are well-established. The Court must have regard to factors such as: the length of, and reasons or explanation for, the delay; the prejudice to the applicant if time is not extended, and the prejudice to the respondent if time is extended; and the merits – or lack thereof – of the proposed grounds of appeal: see Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 at 248-349; Parker v The Queen [2002] FCAFC 133 at [6]; Gallo v Dawson (1990) 93 ALR 479, affirmed on appeal in Gallo v Dawson (No 2) (1992) 109 ALR 319; Vaysman v Deckers Outdoor Corporation Inc (2014) 222 FCR 387; [2014] FCAFC 60 at [85].
In Gallo, McHugh J said, in the context of an extension of time under the then current High Court Rules 1952 (Cth) (at 480-481):
The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. 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 extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185. 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: see Burns v Grigg [1967] VR 871 at 872; Hughes, at 263-4; Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has “a vested right to retain the judgment” unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice.
While there are some minor differences between the former High Court Rules and the Federal Court Rules in respect of applications for an extension of time, the principles referred to by McHugh J are nonetheless applicable to such an application under the Federal Court Rules.
SHOULD MR WALSH BE GIVEN AN EXTENSION OF TIME?
It may be accepted that Mr Walsh’s delay in seeking to file his notice of appeal was not particularly lengthy, at least if one takes the judgment and orders of 23 February 2018 as a starting point. That is perhaps reasonable given that the substantive orders sought by the Registrar were not made until that point in time.
That said, the delay is significant to the extent to which Mr Walsh now wishes to effectively challenge earlier judgments and orders, such as the judgment rejecting the contention that the proceedings were an abuse of process, and the judgment refusing the adjournment application shortly prior to the trial. Mr Walsh’s only explanation for not seeking leave to appeal from those judgments or orders shortly after they were made was that it was his understanding and practice that he did not have to file an appeal until the case was “basically over” which, in his case, was not until the final order concerning interest was made on 1 March 2018.
As for the delay following the 23 February 2018 judgment, or the 1 March 2018 order, Mr Walsh’s explanation for that delay, short as it may have been, is neither satisfactory nor persuasive. He claims to have been told by someone that he had 28 days in which to file an appeal. He has, however, provided no detail about who gave him that information or in what circumstances. Perhaps more significantly, he does not explain why he, as an apparently experienced lawyer, relied on what he was told by someone, rather than consulting the Federal Court Rules. Nor does he explain why he left it to the very end of what he understood to be the appeal period before seeking to file his appeal. That is particularly inexplicable given Mr Walsh’s claim that his civil rights were “gravely affected” by the judgment and orders.
As for his supposed health problems, Mr Walsh provided no detail concerning those problems and, perhaps more significantly, no supporting documentary or objective evidence, such as medical reports.
The main problem for Mr Walsh, however, is that none of his proposed grounds of appeal appear to have any discernible merit. Nor was he able to advance any reasonable, let alone persuasive or compelling, submissions in support of his proposed appeal. While it may readily be accepted that Mr Walsh will be prejudiced if he is not granted an extension of time to file a notice of appeal, that prejudice will not be material, or of any significance, if he is unable to put forward any arguable ground of appeal, or unable to demonstrate that he has a reasonably arguable case on appeal.
Mr Walsh’s first proposed ground of appeal is that the proceedings were in breach of the Public Interest Disclosure Act. There would appear to be a number of fundamental problems with that ground.
First, there is no indication whatsoever that Mr Walsh raised this argument before the primary judge. While the underlying assertion is referred to fleetingly in Mr Walsh’s affidavit sworn on 27 October 2016, Mr Walsh accepted that his arguments concerning the Public Interest Disclosure Act were not developed at all in the written submissions he had filed.
Second, and more fundamentally, Mr Walsh was unable to clearly articulate who he alleged breached the Public Interest Disclosure Act, what section or sections were breached and, more importantly, what the implications of that breach were or are. The Public Interest Disclosure Act provides, in short, that it is an offence for a person to take a “reprisal” against a person because of a “public interest disclosure”. It also provides that the Federal Court and the Federal Circuit Court can make certain orders for civil remedies in those circumstances. What constitutes “taking a reprisal” is defined in very broad terms. It includes any act which causes any detriment. A “public interest disclosure”, however, is defined in detailed and specific terms in Subdivision A of Division 2 of Part 2 of the Public Interest Disclosure Act. Mr Walsh made no attempt to demonstrate that his supposed disclosure fell within the definition of a “public interest disclosure”. It is by no means readily apparent that it did. It is perhaps not surprising, in those circumstances, that Mr Walsh never suggested that he ever sought, or attempted to seek, the relief available under the Public Interest Disclosure Act.
Third, the factual basis of Mr Walsh’s claim that there had been a breach of the Public Interest Disclosure Act was, to say the very least, extremely flimsy. It amounts to little more than speculation that the commencement of the proceeding by the Registrar was somehow linked to his email to Mr Gibbons, whoever he may have been, sent on 12 April 2016. The proceeding was commenced two days later. There was, however, no evidence that the Registrar knew anything about the 12 April 2016 email or the supposed disclosure in it. It is also abundantly clear that Dr Sze’s complaint had been received and acted upon by the Registrar well before 12 April 2016. Indeed, it is readily apparent that the drafting of the Registrar’s originating process and pleading had commenced well before 12 April 2016.
Fourth, to the extent that Mr Walsh argued that a breach of the Public Interest Disclosure Act would demonstrate that the proceeding was an abuse of process, it would appear that Mr Walsh did not advance that argument before the primary judge when he applied to strike out the proceeding. Nor did Mr Walsh seek leave to appeal from the primary judge’s dismissal of that interlocutory application.
Needless to say, an allegation that the Registrar, or anyone else involved with the institution of the proceedings against Mr Walsh, commenced, or caused the proceeding to be commenced or prosecuted because Mr Walsh had disclosed information about corrupt practices, is an extremely serious allegation. It appears to be entirely unsubstantiated and amount to nothing more than bare assertion or speculation of the most general kind. To the extent that Mr Walsh relied on any such contention in support of his claim that the proceeding was an abuse of process, the primary judge was plainly correct to reject it.
The second proposed ground of appeal is that the orders and judgment were “pre-determined”. That amounts to an allegation of actual bias on the part of the primary judge. Needless to say, such a serious allegation should not be made lightly and should, if made, be supported by clear, cogent evidence: SBBA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 90 at [15]; Re Minister for Immigration and Multicultural Affairs; ex parte Epeabaka (2001) 206 CLR 128; [2001] HCA 23 at [90]. Mr Walsh did not adduce a shred of evidence in support of this allegation. The suggestion that the primary judge’s bias was revealed by his Honour’s demeanour during Mr Walsh’s application to strike out the proceeding was not only unsupported by evidence, but was manifestly baseless.
The third proposed ground of appeal is that Mr Walsh was unable to be present at the hearing owing to a medical incapacity which was allegedly known to the primary judge. This would appear to be a challenge to the primary judge’s refusal of his adjournment application, and to the fact that the primary judge continued with the hearing when Mr Walsh failed to appear. Mr Walsh submitted, in support of this proposed ground of appeal, that the primary judge ignored the medical evidence that was submitted to the court.
There are a number of fundamental problems with this proposed ground of appeal.
First, it is plain from the primary judge’s reasons for refusing the adjournment application that his Honour did not ignore the medical evidence, such as it was. Rather, he considered it and found it to be unsatisfactory and unpersuasive. That finding was hardly surprising given how vague and general the evidence was. Mr Walsh was unable to advance any reasonable argument for why the finding in relation to the medical evidence was not open to the primary judge.
Second, Mr Walsh did not adduce any medical evidence in support of his extension application. There is no objective or independent evidence in support of Mr Walsh’s claim that he was incapacitated and unable to attend the hearing of the adjournment application. Perhaps more significantly, there is no evidence whatsoever that Mr Walsh was incapacitated and unable to appear at the substantive hearing, which proceeded over four days. Mr Walsh does not suggest, in any of his affidavits, that he was incapacitated during the entire four days of the hearing. Nor does he even attempt to explain, in his evidence, why he did not appear, or even attempt to contact the court in relation to his non-appearance.
Third, it follows that there is no evidence capable of supporting the contention that the primary judge proceeded with the hearing knowing that Mr Walsh was incapable of being present.
Putting Mr Walsh’s proposed grounds of appeal to one side, the other submissions advanced by Mr Walsh in support of his extension application were equally unmeritorious. None of the submissions provided any basis for doubting the correctness of any aspect of the primary judge’s reasons for finding that Mr Walsh was guilty of professional misconduct or unsatisfactory professional conduct, or any reason for doubting the correctness and appropriateness of any of the orders made by the primary judge.
As has already been noted in the context of Mr Walsh’s proposed ground of appeal concerning the Public Interest Disclosure Act, Mr Walsh was unable to point to any evidence, or articulate any sensible, let alone reasonable, argument in support of his claim that the proceedings were an abuse of process. His argument that the proceedings were “in breach of the modern litigant rules” was undeveloped to the point of being nonsensical. His contention that he should have been afforded a trial by jury was entirely unmeritorious and unsupported by any authority or sensible argument. His broad and generalised claims that the proceeding breached the International Covenant on Civil and Political Rights and the Racial Discrimination Act 1975 (Cth) had no apparent or discernible legal or factual basis. His apparent challenges to the factual findings made by the primary judge were unpersuasive and meritless in the face of what appeared to be the compelling evidence that was before the primary judge, and the primary judge’s equally compelling reasons.
The apparent lack of any merit in any of the proposed grounds of appeal, or any of the other arguments and submissions advanced by Mr Walsh, strongly militates against the grant of Mr Walsh’s application for an extension of time. The refusal of Mr Walsh’s application is all the more compelling given his failure to provide a reasonable and satisfactory explanation for his delay in filing his appeal.
In all the circumstances, there is no reason to direct that Mr Walsh’s application for an extension of time be heard and determined by a Full Court. It should be refused. There is no reason why costs should not follow the event.
CONCLUSION AND DISPOSITION
Mr Walsh’s application for an extension of time in which to file an appeal against the judgments or orders of the primary judge should be refused with costs.
I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wigney. Associate:
Dated: 19 July 2018
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