FEDERAL COURT OF AUSTRALIA

Rowe v Emmanuel College [2013] FCA 939

FEDERAL COURT OF AUSTRALIA

Rowe v Emmanuel College [2013] FCA 939

CORRIGENDUM

1.    In the Order for QUD 322 of 2013 Order 2 is amended by deleting “stand” and replacing it with “be”.

2.    Paragraph 42, line 3 is amended by deleting “refund” and replacing it with “refusal”.

3.    Paragraph 43, line 2 is amended by deleting “on” and replacing it with “and”.

4.    Paragraph 44, line 2 is amended by deleting “misleading for deceptive conduct” and replacing it with “misleading or deceptive conduct”.

Associate:

Dated:    3 October 2013

FEDERAL COURT OF AUSTRALIA

Rowe v Emmanuel College [2013] FCA 939

CORRIGENDUM

1.    In the Order for QUD 534 of 2013 Order 1 is amended by deleting the date “16 June 2012” and replacing it with “7 August 2013”.

Associate:

Dated:    19 September 2013

THE COURT ORDERS THAT:

1.    The application for an extension of time to seek leave to appeal and leave to appeal is refused.

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

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

THE COURT ORDERS THAT:

1.    The appellant provide security for the respondent’s costs of defending the appeal in an amount of $15,000 in a form acceptable to the Registrar of the Court on or before 30 October 2013.

2.    In the event that the appellant does not provide such security for the respondent’s costs on or before 30 October 2013, the appeal stand dismissed.

3.    The costs of the application for security for costs are reserved.

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

THE COURT ORDERS THAT:

1.    The Order of the Federal Circuit Court made on 16 June 2012 for the payment by the appellant of costs in the amount of $29,988.49 be stayed until further order.

2.    Order 1 is conditional and shall only take effect upon the appellant paying into Court the sum of $29,988.49 on or before 30 October 2013.

3.    The costs of the application for a stay are reserved.

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

REASONS FOR JUDGMENT

1    The parties have filed four applications. These are:

(a)    an application by Mr Rowe seeking an extension of time for leave to appeal and leave to appeal against interlocutory orders made by his Honour Judge Jarrett of the Federal Circuit Court of Australia on 15 April 2013;

(b)    an application by Emmanuel College for security for costs against Mr Rowe in the event that leave to appeal is granted;

(c)    an application by Emmanuel College for security for costs in respect of an appeal brought by Mr Rowe against final orders made by Judge Jarrett on 13 June 2013;

(d)    an application by Mr Rowe for orders that decisions made by Judge Jarrett on 15 April 2013, 13 June 2013 and 7 August 2013 be stayed.

2    I will consider each of these applications in turn.

The application for an extension of time for leave to appeal and for leave to appeal

3    Mr Rowe and his wife enrolled their daughter at a primary school operated by Emmanuel College. Their signatures appear on a document entitled “Enrolment Agreement” dated 10 February 2009 and another entitled “Enrolment Agreement Contract” dated 7 April 2009 (although Mr Rowe has claimed variously that his signature was forged and that he has no recollection of signing the documents). Their daughter started at the school on 27 January 2010. Subsequently, Mr Rowe and his wife encountered marital difficulties and separated, resulting in bitterly contested family law litigation.

4    In May 2011 Mr Rowe sought to cancel his daughter’s enrolment without the consent of his former wife. Emmanuel College refused to cancel the enrolment, saying that it could only terminate the enrolment “when the instruction comes from both of you as the contract is in both your names”. Mr Rowe was unhappy with this decision.

5    Another dispute arose over Emmanuel College’s policy, called “Mailings to Parents of Separated Families”, under which the College proposed to charge Mr Rowe $250 per year to post a copy of school reports and other material to him. Mr Rowe complained that this was unfair and a denial of his basic human rights. He also claimed that the charge was inconsistent with a fee schedule published by the College that listed all fees and charges that parents would have to pay except textbook hire, stationery and optional excursions. He refused to pay. The College eventually provided him with a copy of the reports free of charge.

6    Mr Rowe has waged a campaign against Emmanuel College, including by pursuing proceedings in several courts and a tribunal, by complaining or threatening to complain to the police, child safety, anti-discrimination and regulatory authorities, by appearing on the television program “Today Tonight” and by establishing a website and Facebook page. Mr Rowe presents himself as a crusader for the public good. Emmanuel College sees Mr Rowe’s conduct merely as a source of considerable vexation for it and its staff. These differences in perception loomed large in the submissions of each party.

7    Mr Rowe is an experienced solicitor who has represented himself in his various legal proceedings. Before the Federal Circuit Court, Mr Rowe sought the following final relief in his further amended application:

3.    The Applicant seeks orders of the court to strike out and/or declare void, as an unfair contract term, pursuant to Schedule 2, Part 2-3 of the Competition and Consumer Act 2010 (Cth), the contract term (as argued by the Respondent), that both the Applicant and the Applicant’s ex-wife must do all acts “jointly” in the consumer contract between the Applicant, the Applicant’s ex-wife … and the Respondent, when the original contract was entered into severally (severable promise) between the Applicant, the Applicant’s ex-wife, and the Respondent.

4.    The Applicant seeks orders of the court to strike out and/or declare void, as an unfair contract term, pursuant to Schedule 2, Part 2-3 of the Competition and Consumer Act 2010 (Cth), the Respondent’s policies on communication with separated families.

5.    The Applicant seeks a declaration of the court that the Respondent has engaged and continues to engage in misleading and deceptive conduct pursuant to Schedule 2, Part 2-1 of the Competition and Consumer Act 2010 (Cth).

6.    The Applicant seeks a declaration of the court that the Respondent has engaged and continues to engage in unconscionable conduct pursuant to Schedule 2, Part 2-2 of the Competition and Consumer Act 2010 (Cth).

7.    The applicant further seeks general damages of $750,000.00 pursuant to section 236 of the Competition and Consumer Act 2010 (Cth), as a result of the Respondent’s contravention of the Competition and Consumer Act 2010 (Cth).

8.    The Applicant further seeks that the court awards the Respondent a civil penalty of $1.1 million dollars for breach(s) by the Respondent of the Competition and Consumer Act 2010 (Cth).

9.    The court orders the Applicant’s costs to be paid by the Respondent on an indemnity basis.

8    Emmanuel College applied for summary dismissal of the proceeding. On 15 April 2013 Judge Jarrett summarily dismissed the claims for relief sought in paras 3, 4, 6 and 8 of the further amended application on the basis that Mr Rowe had no reasonable prospect of prosecuting the claims for such relief. The application for summary dismissal itself was not in the material placed before this Court but it appears to have been made under s 17A of the Federal Circuit Court of Australia Act 1999 (Cth) or r 13.10 of the Federal Circuit Court Rules 2001 (Cth) or both.

9    Section 17A of the Federal Circuit Court of Australia Act provides, relevantly:

17A    Summary judgment

…

(2)    The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a)    the first party is defending the proceeding or that part of the proceeding; and

(b)    the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

(3)    For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:

(a)    hopeless; or

(b)    bound to fail;

for it to have no reasonable prospect of success.

10    Rule 13.10 of the Federal Circuit Court Rules provides, relevantly:

13.10    Disposal by summary dismissal

The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:

(a)    the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or

(b)    the proceeding or claim for relief is frivolous or vexatious; or

(c)    the proceeding or claim for relief is an abuse of the process of the Court.

11    In Spencer v Commonwealth of Australia (2010) 241 CLR 118, Hayne, Crennan, Kiefel and Bell JJ, discussed the expression “no reasonable prospect” in s 31A of the Federal Court of Australia Act 1976 (Cth) (the equivalent of s 17A of the Federal Circuit Court of Australia Act):

[59]    In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like “clearly”, “manifestly” or “obviously”) as “frivolous”, “untenable”, “groundless” or “faulty”. But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power given by s 31A. Nor can the content of the word “reasonable”, in the phrase “no reasonable prospect”, be sufficiently, let alone completely, illuminated by drawing some contrast with what would be a “frivolous”, “untenable”, “groundless” or “faulty” claim.

[60]    Rather, full weight must be given to the expression as a whole. The Federal Court may exercise power under s 31A if, and only if, satisfied that there is “no reasonable prospect” of success. Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly. … At this point in the development of the understanding of the expression and its application, it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes.

12    It may be that the power to give summary judgment under s 17A can be exercised on wider grounds than the power under r 13.10, since the latter is not qualified by the statement that a proceeding need not be hopeless or bound to fail for it to have no reasonable prospect of success. That does not matter here because the primary judge’s conclusion that Mr Rowe had no reasonable prospect of successfully prosecuting aspects of his claim appears to have been reached on the narrow basis that they were untenable or hopeless or bound to fail.

13    Mr Rowe wishes to appeal against the orders summarily terminating part of his claim. Section 24(1A) of the Federal Court of Australia Act provides that an appeal shall not be brought from an interlocutory judgment unless the Federal Court or a Judge gives leave to appeal. A decision of a judge of the Federal Circuit Court to summarily dismiss a claim or part of a claim is interlocutory: Scott v Human Rights and Equal Opportunity Commission [2007] FCA 2055 at [16], Dobson v Australian Postal Corporation [2013] FCA 320 at [7]. Accordingly, Mr Rowe requires leave to appeal.

14    Rule 35.13 of the Federal Court Rules 2011 (Cth) requires a person who wants to apply for leave to appeal to file the application within 14 days after the date on which the judgment was pronounced. Mr Rowe had until 29 April 2013 to file his application for leave to appeal but he failed to do so until 6 May 2013. He says that this occurred because, while the primary judge’s reasons were given ex tempore on 15 April 2013, the written judgment was not made available until 6 May 2013 and r 35.12(2)(b) Federal Court of Australia Rules 2011 (Cth) requires that an application for leave to appeal be accompanied by the reasons, if published.

15    Mr Rowe seeks an extension of time to seek leave to appeal pursuant to r 35.14(1) of the Federal Court Rules. The success of his application for an extension of time will depend upon whether he has provided a satisfactory explanation for the delay and whether he can demonstrate that there is some prospect of success in the proposed appeal: Wilson v Alexander (2003) 135 FCR 273 at [24]-[26].

16    I am prepared to accept that Mr Rowe has provided a satisfactory explanation for his short delay. It is next necessary to consider whether his proposed appeal has adequate prospects of success, both in the context of his application for an extension of time and his application for leave to appeal.

17    The Court has a wide discretion as to whether to grant leave to appeal from an interlocutory judgment, but generally leave will not be granted unless the decision in question is attended with sufficient doubt to warrant the grant of leave and substantial injustice would result from a refusal of leave to appeal: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399, Minogue v Williams [2000] FCA 125 at [19]. Leave will more readily be granted where, as here, the interlocutory decision effectively determines a substantive right: Decor Corporation at 400, Minogue v Williams at [19]. In such a case, leave will usually be granted if there is any doubt about the decision at first instance: Johnson Tiles Pty Ltd v Esso Australia Ltd (2000) 104 FCR 564 at [43].

18    Each of the final orders sought by Mr Rowe in his further amended application depended upon the application of Schedule 2 of the Competition & Consumer Act 2010 (Cth). Schedule 2 is called the Australian Consumer Law.

19    Part 2-3 of the Australian Consumer Law deals with unfair contract terms. Section 23(1) provides that, “A term of a consumer contract is void if … the term is unfair and … the contract is a standard form contract”.

20    Pursuant to s 8 of Schedule 7 of the Trade Practices Amendment (Australian Consumer Law) Act (No. 2) 2010 (Cth), Part 2-3 of the Australian Consumer Law applies only to contracts entered into on or after 1 January 2011, contracts that are renewed on or after that date and contractual terms which are varied on or after that date.

21    Mr Rowe did not argue before the Federal Circuit Court that the contract was entered or renewed on or after 1 January 2011. Instead he submitted that Part 2-3 applied because Emmanuel College had unilaterally varied the contract after 1 January 2011 by:

(a)    introducing a term that Mr Rowe and his ex-wife must jointly agree to terminate their daughter’s enrolment;

(b)    introducing the policy under which it sought to charge Mr Rowe $250 per year for a copy of his daughter’s report cards.

22    Mr Rowe argued that therefore s 23(1) applied to his contract with Emmanuel College, and that each of these terms was unfair.

23    The primary judge rejected the argument that Emmanuel College had purported to vary the contract by introducing a term that Mr Rowe and his ex-wife must jointly agree to the termination of the enrolment. His Honour concluded that Emmanuel College had merely interpreted the contract and the obligations and responsibilities created by it in a way that Mr Rowe disagreed with. That did not represent an attempt by Emmanuel College to impose a new term, but reflected its interpretation of the existing terms of the contract. Accordingly, there was no purported or actual variation of any term of the contract after 1 January 2011 and Part 2-3 of the Australian Consumer Law had no application. His Honour’s reasoning was, in my opinion, clearly correct.

24    The primary judge rejected Mr Rowe’s argument that the unfair contract provisions of Part 2-3 of the Australian Consumer Law applied to Emmanuel College’s policy under which it proposed to charge Mr Rowe $250 per year for an additional copy of his daughter’s report cards. In his further amended application and in an affidavit placed before the Federal Circuit Court, Mr Rowe stated that, “The policy was never agreed by the Applicant with the Respondent”. His Honour held that on any view of it, there was merely an offer by the school to a parent to provide information to the parent for a cost. The parent was not obliged to take up the offer. His Honour noted that Mr Rowe’s case was that he had not accepted the offer. The policy was not a term of the contract and therefore s 23 did not apply to it. His Honour’s reasoning on this issue was, in my opinion, also clearly correct.

25    In view of the primary judge’s conclusion that the policy complained of by Mr Rowe was not a term of the contract, it was unnecessary for his Honour to decide whether Part 2-3 of the Australian Consumer Law did not apply to the contract by reason of s 8 of Schedule 7 of the Trade Practices Amendment (Australian Consumer Law) Act (No 2). In my opinion, Mr Rowe’s claim was also bound to fail because no terms of the contract were varied on or after 1 January 2011.

26    The primary judge also rejected Mr Rowe’s claim for relief based on the allegation that Emmanuel College had engaged and continued to engage in unconscionable conduct. Mr Rowe relied on s 20(1) of the Australian Consumer Law which provides that “A person must not, in trade or commerce, engage in conduct that is unconscionable, within the meaning of the unwritten law from time to time”.

27    Mr Rowe’s further amended application alleged the following as constituting the grounds of his assertion of unconscionable conduct:

Furthermore, the Respondent’s policy on “separated parents” is unconscionable conduct. To treat a section or group of the community in a way differently to everyone else with no good reason is unconscionable conduct.

28    In oral argument before the primary judge, Mr Rowe also asserted that Emmanuel College had engaged in unconscionable conduct by forcing him to pay a fee to access his daughter’s report cards when it is “a basic human right” that parents should be able to access their children’s report cards without charge.

29    Mr Rowe’s argument relies upon the category of unconscionable conduct described in cases such as Blomley v Ryan (1956) 99 CLR 362, Commercial Bank of Australia v Amadio (1983) 151 CLR 447 and Louth v Diprose (1992) 175 CLR 621. In Commercial Bank of Australia Ltd v Amadio, Mason J at 462 described unconscionable conduct as occurring “whenever one party by reason of some condition or circumstance is placed at a special disadvantage vis-à-vis another and unfair or unconscientious advantage is then taken of the opportunity thereby created”. His Honour considered that a “special disadvantage” is one that “seriously affects the ability of the innocent party to make a judgment as to his own best interests, when the other party knows or ought to know of the existence of that condition or circumstance and of its effect on the innocent party”.

30    In the same case, Deane J said at 474 that “unconscionable dealing looks to the conduct of the stronger party in attempting to enforce, or retain the benefit of, a dealing with a person under a special disability in circumstances where it is not consistent with equity or good conscience that he should do so”.

31    In Kakavas v Crown Melbourne Ltd (2013) 298 ALR 35 the High Court said at [118]:

Essential to the principle stated by both Mason J and Deane J in Amadio is that there should be an unconscientious taking advantage by one party of some disabling condition or circumstance that seriously affects the ability of the other party to make a rational judgment as to his or her own best interests. It may well be that an unconscientious taking of advantage will not always be manifest in a demonstrated inequality of bargaining power or in a demonstrated inadequacy in the consideration moving from the stronger party to the weaker; but the abiding rationale of the principle is to ensure that it is fair, just and reasonable for the stronger party to retain the benefit of the impugned transaction.

32    Before this Court, Mr Rowe relied not only upon his status as a single parent to establish his position of special disadvantage, but also upon his contention that he has limited income and suffers from a psychiatric illness. The difficulty remains that even it if assumed that Mr Rowe was at special disadvantage, he has not advanced any arguable case that there is any transaction or dealing that Emmanuel College is attempting to enforce or retain the benefit of, or that Emmanuel College took advantage of his position. On Mr Rowe’s case, he rejected Emmanuel College’s offer to provide him with an extra copy of his daughter’s school reports for a fee.

33    Mr Rowe’s argument amounts to the contention that it was unconscionable conduct for Emmanuel College to refuse to provide him, as a person who is separated, poor and with a psychiatric illness, with an extra copy of the report cards free of charge. His complaint is that he wanted to enter a transaction with Emmanuel College on terms suitable to him, but that Emmanuel College refused to do so on his terms. It is not unconscionable conduct under the unwritten law to merely refuse to enter into a transaction with a person who happens to be in a position of special disadvantage on the terms desired by that person. Mr Rowe’s argument that Emmanuel College’s conduct in refusing to provide him with extra copies of the report cards free of charge is in breach of s 20(1) of the Australian Consumer Law is not tenable.

34    Mr Rowe complains to this Court that Emmanuel College engaged in other conduct that he alleges was unconscionable. This includes providing medical treatment to his daughter without his consent, unlawful discrimination, bringing legal proceedings against him and defaming him. These complaints appear to use “unconscionable” in a colloquial sense to describe conduct that Mr Rowe emphatically disagrees with, but his complaints are not of the type of conduct that is dealt with under s 20(1) of the Australian Consumer Law: c.f. ACCC v CG Berbatis Holdings Pty Ltd (2003) 214 CLR 51 at [7], per Gleeson CJ.

35    Mr Rowe has not demonstrated an arguable case that the primary judge fell into error in holding that the claims for relief on the basis of the unfair contracts and unconscionable conduct provisions of the Australian Consumer Law had no reasonable prospect of success.

36    Mr Rowe conceded before the primary judge that his claim for the imposition of pecuniary penalty upon Emmanuel College could not succeed. He made the same concession before this Court. The primary judge was correct to summarily dismiss that claim.

37    Mr Rowe raised a case of ostensible bias against the primary judge. The test is whether “a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6]. He did not point to any particular passages of the transcript or particular language or comments that support his case. Mr Rowe also argued that he did not receive a full and proper hearing before the primary judge. He asserted that the primary judge had ignored his arguments.

38    I have examined the transcript of proceeding before the primary judge and I can see no basis for Mr Rowe’s complaints. Mr Rowe was questioned robustly by the primary judge, no doubt to test some obvious weaknesses and inconsistencies in his case. However, there was nothing that Mr Rowe pointed to that could suggest to a fair-minded lay observer that the judge was other than impartial. Mr Rowe had an adequate opportunity to make submissions and took advantage of that opportunity at some length and with a certain robustness of his own. The refusal of the primary judge to accept Mr Rowe’s arguments does not mean that he ignored them. I do not accept that he has raised an arguable case of ostensible bias or that he did not receive a full and proper hearing.

39    Mr Rowe also seeks leave to appeal against the order made by the primary judge on 15 April 2013 that he pay the costs of and incidental to that application for summary judgment. On 7 August 2013 that order was discharged, but Mr Rowe was ordered to pay Emmanuel College’s costs of and incidental to the proceedings fixed in the sum of $29,988.49. That fixed amount included the costs of and incidental to the summary judgment application.

40    The consequence is that there is no extant costs order of 15 April 2013 that Mr Rowe could appeal against. Even if there were, any appeal against such a costs order would fail because the substantive grounds of his appeal would fail. I note that he has in fact appealed, as of right, against the whole of the judgment including the costs order given on 13 June 2013.

41    In any event, there would be little utility in a grant of leave to appeal. The substance of Mr Rowe’s concern with his daughter’s enrolment at Emmanuel College seems to have been that he should not have to pay her school fees; but his former wife has been paying such school fees by herself from at least the time he requested that his daughter’s enrolment be withdrawn. Emmanuel College has also waived any fees for the provision of a copy of his daughter’s school reports, and had done so before the application for summary judgement was heard and determined. I am not satisfied that refusal of a grant of leave to appeal would cause Mr Rowe to suffer any injustice sufficient to warrant the grant of such leave.

42    I am satisfied that the primary judge’s decision is not attended with sufficient doubt to warrant a grant of leave to appeal and that there will be no substantial injustice as a result of the refund of the grant of leave. I also assess Mr Rowe’s prospects of success as insufficient to allow him an extension of time to seek leave to appeal. In any event, it would be pointless to grant the extension of time and then refuse leave to appeal.

Application for security for costs of potential appeal

43    As I have decided that Mr Rowe should not be granted an extension of time for the filing of his application for leave to appeal on leave to appeal, it is unnecessary to consider Emmanuel College’s application for security for the costs of any such appeal.

Application for security for costs of appeal

44    The primary judge declined to grant summary judgment in respect of Mr Rowe’s claim for relief for misleading for deceptive conduct in contravention of Part 2-1 of the Australian Consumer Law. That claim proceeded to a final hearing and on 13 June 2013 the primary judge ordered that Mr Rowe’s further amended application be dismissed. Mr Rowe has appealed against that decision.

45    Emmanuel College’s fee schedule contained a statement that:

This fee schedule includes all fees and charges you will have to pay except textbook hire, stationery and voluntary optional excursions…When comparing fees amongst schools you need to be aware of the ‘extras’. There are no hidden costs to be added to this schedule.

46    Section 18 of the Australian Consumer Law provides that a person must not, in trade or commerce engage in conduct that is misleading or deceptive or is likely to mislead or deceive. Emmanuel College did not dispute that it was bound by s 18 of the Australian Consumer Law or that it was acting in trade or commerce.

47    Mr Rowe’s case was that Emmanuel College had engaged in misleading or deceptive conduct by publishing the relevant statements in its fee schedule when, in fact, its policy entitled “Mailings to Parents of Separated Families” provided for extra fees for parents requiring additional copies of school reports and other documents. Mr Rowe argued that this was a hidden cost, such that the fee schedule was misleading or deceptive or likely to mislead or deceive.

48    The primary judge held that, read in context, the fees and costs spoken of in the fee schedule are those that are directly referable to the education of the young people enrolled at the school. The fee schedule was not intended to convey a meaning that under no circumstances would parents be asked to contribute further to matters relating to or connected with the enrolment of their children at the school. The primary judge held that the fee schedule was not misleading or deceptive or likely to mislead or deceive.

49    The primary judge also held that Mr Rowe had not proved that he had relied upon the alleged misrepresentation or that he had suffered loss or damage as a result of any such reliance.

50    An appeal to the Federal Court from a judgement of the Federal Circuit Court is by way of rehearing: MZYTT v Minister for Immigration and Citizenship [2013] FCA 76 at [20] (and the cases referred to therein). Ordinarily, a court “entertaining an appeal by way of rehearing can exercise its appellate powers only if satisfied that there was error on the part of the primary decision-maker”: Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission (2000) 203 CLR 194 at [14]. Accordingly, in the appeal, it will be necessary for Mr Rowe to demonstrate legal or factual error on the part of the primary judge.

51    Before this Court, Mr Rowe raised an argument based upon s 20(2) of the Schools Assistance Act 2008 (Cth) which provides that a funding agreement for a “non-systemic school” must require the relevant authority for the school to give each person responsible for the student a report (or reports) concerning the student. Mr Rowe argued that the effect of this provision is that Emmanuel College was required to provide him with an additional copy of his daughter’s school reports free of charge. He argued that no member of the community would expect Emmanuel College to charge a parent a fee for an additional copy of his or her child’s report card. Mr Rowe’s argument depends, at least, upon proof of particular facts, including that Emmanuel College or the relevant authority for it is a party to a funding agreement and the terms of that funding agreement.

52    It is unclear whether Mr Rowe’s new argument is that his alleged entitlement under legislation to a free copy of the report card is a circumstance by which the misleading or deceptive nature of the fee schedule is to be evaluated. His argument may instead be that Emmanuel College was misrepresenting that it was able to charge a fee for an additional copy of the report card when it was not entitled to raise any such charge. Neither argument was raised before the primary judge.

53    On 7 August 2013 the primary judge ordered that Mr Rowe pay Emmanuel College’s costs of and incidental to the proceedings fixed in the sum of $29,988.49. That amount has not been paid. The solicitors for Emmanuel College have told Mr Rowe that they have instructions to commence bankruptcy proceedings against him.

54    The solicitors for Emmanuel College estimate that in the event that Mr Rowe’s appeal fails and costs are awarded against him on a party and party basis, those costs will be in the vicinity of $30,000. Mr Rowe, as an experienced solicitor, estimates such costs to be $15,000 to $20,000.

55    Mr Rowe was interviewed for the television program “Today Tonight”. The interview was broadcast on 8 August 2013. The interviewer referred to the costs that Mr Rowe had been ordered to pay by the Federal Circuit Court and to the potential for him to have to pay the costs of the appeal. Mr Rowe said, “Potentially it is more money but umm but what have I got to lose? Bankruptcy or more bankruptcy?”.

56    Mr Rowe’s statement is revealing. It shows not only that he lacks the capacity to pay the nearly $30,000 in costs that have been ordered against him to date and the costs that may be awarded in favour of Emmanuel College in the appeal, but that he has no compunction about putting Emmanuel College to considerable further expense that it has little prospect of recovering even if it is successful in the appeal.

57    Section 56 of the Federal Court of Australia Act provides, relevantly:

56    Security

(1)    The Court or a Judge may order an applicant in a proceeding in the Court, or an appellant in an appeal under Division 2 of Part III, to give security for the payment of costs that may be awarded against him or her.

(2)    The security shall be of such amount, and given at such time and in such manner and form, as the Court or Judge directs.

…

(4)    If security, or further security, is not given in accordance with an order under this section, the Court or a Judge may order that the proceeding or appeal be dismissed.

58    Rule 36.09(1) of the Federal Court Rules provides:

36.09    Security for costs of appeal

(1)    A party may apply to the Court for an order that:

(a)    the appellant give security for the costs of the appeal, and for the manner, time and terms for giving the security; and

(b)    the appeal be stayed until security is given; and

(c)    if the appellant fails to comply with the order to provide security within the time specified in the order—the appeal be stayed or dismissed.

59    The discretion conferred by s 56 is broad and unfettered and is to be exercised according to the merits and particular circumstances of each case and without any particular pre-disposition: Madgwick v Kelly (2013) 299 ALR 188 at [6].

60    One factor affecting the exercise of the discretion is whether security for costs is sought at first instance or in an appeal. In Tait v Bindal People [2002] FCA 322, Spender J said:

[2]     … As to whether security for costs should be ordered, Cowell v Taylor (1885) 31 Ch D 34 at 38, a case of more than 100 years ago, sets out the fundamental principle:

The general rule is that poverty is no bar to a litigant, that, from time immemorial, has been the rule at common law. There is an exception in the case of appeals, but there the appellant has had the benefit of a decision by one of Her Majesty’s Courts, and so an insolvent party is not excluded from the Courts, but only prevented, if he cannot find security, from dragging his opponent from one Court to another.

[3]    What that passage demonstrates is that there is a difference in principle in relation to the ordering of security for costs in a first instance matter and the ordering, or the consideration of the ordering, of security for costs where one is at the appellate level. The difference is that, at the appellant level, there has already been a determination adverse to the person against whom security for costs is sought and, if it be shown that there is a substantial risk that even if successful the respondent to the application for leave to appeal, or to an appeal, will be deprived of his costs, such an outcome would clearly be unjust.

[4]     In a sense, it would be giving to a person who has been on the receiving end so to speak of a determination by the courts a free hit at great cost to the other party in the appeal proceedings. That consideration, it seems to me, is also reinforced by the judgment of Gummow J in Wiest v Director of Public Prosecutions and Anor (1988) 23 FCR 472 … His Honour referred to a particular circumstance which is relevant here, and that is that the applicant for security has a judgment in its favour. There was a reference by Gummow J to Bethune v Porteous (1892) 18 VLR 493, again an old case. In that case, Hood J said (at 494):

the reason underlying the numerous and varying cases in which appellants have been ordered to give security will be found in the injustice to a successful litigant that may be caused if he be compelled to contest the matter for a second time without a probability of obtaining his costs if ultimately successful.

That really is the fundamental question of justice behind my decision to order security for costs.

61    In Equity Access Limited v Westpac Banking Corporation (1989) ATPR 40-972, Hill J said that the cases indicate that among the matters appropriate for consideration in an application for security for costs are:

(a)    the chances of success;

(b)    the quantum of the risk that the applicant cannot satisfy a costs order;

(c)    whether an order would shut out the applicant from proceeding with the claim;

(d)    whether the impecuniosity arose out of the breaches alleged against the respondents;

(e)    whether there are aspects of public interest which weigh in the balance against the making of an order;

(f)    any other particular discretionary matters peculiar to the circumstances of the case.

62    It is plain that Mr Rowe will not pay any award of costs made in favour of Emmanuel College in the appeal. While his lack of funds would not be relevant at first instance it becomes relevant to an application for security for the costs of an appeal.

63    I do not regard Mr Rowe’s prospects of success in his appeal as promising. He now relies upon an argument based on s 20 of the Schools Assistance Act that he did not plead or argue before the primary judge and which requires the introduction of new evidence to prove some of the factual premises upon which it is based. No evidence was led to suggest that those factual premises could be made out. Further, it is unclear as to precisely what the argument is. Apart from that argument, Mr Rowe merely asserts that the primary judge “simply erred in law” in his determination that Emmanuel College’s conduct was not misleading or deceptive without descending into any more detailed or reasoned argument as to how His Honour is said to have been in error.

64    There was no significant delay in the making of the application for security for costs. The notice of appeal was filed on 14 June 2013 and the application for security for costs was filed on 1 July 2013.

65    As to whether Mr Rowe’s impecuniosity has been caused by the conduct of Emmanuel College, there is evidence in the form of a psychiatrist’s report that he has a psychiatric illness and that the psychiatric illness affects his capacity for employment. The contributing factors to the psychiatric illness include Mr Rowe’s Family Court proceedings and his proceedings involving Emmanuel College. In one sense it might be said that Mr Rowe’s reaction to his subjective perception of the conduct of Emmanuel College contributes to his psychiatric condition and to his impecuniosity. However, Mr Rowe’s account to the psychiatrist as to the cause of his distress focussed principally upon his family law proceedings. I place little weight upon any contribution of Mr Rowe’s perception of the conduct of Emmanuel College to his impecuniosity.

66    I take into account that the practical effect of an order for security for costs is that it is likely that Mr Rowe’s appeal will be brought to an end because it is unlikely that he will be able to provide that security. This is a factor against an order for security for costs.

67    In the end, the fact that Mr Rowe has already had a trial and an adverse determination in the Federal Circuit Court, his limited prospects of success in the appeal and his inability to meet any adverse costs order weigh heavily in favour of the making of an order for security for costs. I propose to make such an order.

68    Mr Rowe accepted that Emmanuel College’s costs on a party and party basis of the appeal would be in the order of $15,000 to $20,000. I will order that he provide security for Emmanuel College’s costs of the proceedings in the sum of $15,000. Such security for costs should be given within 42 days, failing which the appeal will be dismissed.

Application for stay of proceedings

69    Mr Rowe has applied for an order that “the decisions of the Federal Circuit Court dated 15 April 2013, 13 June 2013 and 7 August 2013 be stayed” until the conclusion of his appeals. In his oral submissions, he indicated that his real concern was to prevent the enforcement of the costs orders made against him.

70    On 15 April 2013 the Federal Circuit Court summarily dismissed Mr Rowe’s claim for relief based on unfair contract terms and unconscionable conduct and ordered that he pay Emmanuel College’s costs of the summary dismissal application to be agreed and failing agreement to be fixed by the Court. On 13 June 2013 the Federal Circuit Court dismissed Mr Rowe’s claim based on misleading or deceptive conduct, but did not at that stage make any costs order against him. On 7 August 2013 the Federal Circuit Court discharged the costs order made on 15 April 2013 and ordered that Mr Rowe pay Emmanuel College’s costs fixed in the sum of $29,988.49.

71    Therefore, the only extant costs order against Mr Rowe is the order of 7 August 2013. This is the order that Mr Rowe seeks to have stayed.

72    Section 29(1) of the Federal Court of Australia Act provides, relevantly:

Where an appeal to the Court from another court has been instituted:

(a)    the Court or a Judge, or a judge of that other court (not being the Federal Circuit Court or a court of summary jurisdiction), may order, on such conditions (if any) as it or he or she thinks fit, a stay of all or any proceedings under the judgment appealed from;

…

73    Rule 36.08 of the Federal Court of Australia Rules provides, relevantly:

36.08    Stay of execution or proceedings under judgment appealed from

(1)    An appeal does not:

(a)    operate as a stay of execution or a stay of any proceedings under the judgment subject to the appeal; or

(b)    invalidate any proceedings already taken.

(2)    However, an appellant or interested person may apply to the Court for an order to stay the execution of the proceeding until the appeal is heard and determined.

74    The prima facie assumption is that the judgment appealed from is correct and the Court should not deprive a litigant of the benefit of the judgment in its favour: Powerflex Services Pty Ltd v Data Access Corporation (1996) 67 FCR 65 at 66, Norcast S.ár.L. v Bradken Limited (No 3) [2013] FCA 283 at [12]. The considerations relevant to the exercise of the discretion to grant a stay include whether there is an arguable point to be resolved on appeal and whether the balance of convenience favours the granting of the stay: Dubow v Fitness First (Australia) Pty Ltd [2010] FCA 660 at [22] (and the cases referred to therein).

75    I have already concluded that Mr Rowe’s prospects of success in his appeal are not promising.

76    If the costs order is not stayed, it is likely that bankruptcy proceedings will be commenced against Mr Rowe. It is conceivable that a sequestration order could be made against him before the appeal is heard. It is not inevitable that his appeal would not then proceed. His trustee in bankruptcy could, pursuant to s 60(2) of the Bankruptcy Act 1966 (Cth), allow Mr Rowe to pursue the appeal if the trustee considers that is the appropriate course.

77    However, the possibility, however small, that there could be a sequestration order made against Mr Rowe on the basis of the costs order when the costs order may be later set aside persuades me to grant a stay upon a particular condition. I propose to grant a stay until further order on the condition that Mr Rowe pay into Court the amount of $29,988.49 within 42 days.

Conclusions

78    I decline to grant Mr Rowe an extension of time to seek leave to appeal against the interlocutory decision of the primary judge given on 15 April 2013. Mr Rowe should pay Emmanuel College’s costs of and incidental to that application.

79    I will order that Mr Rowe pay security for the costs of his appeal against the decision of the primary judge given on 13 June 2013. The amount of the security will be $15,000 and must be given on or before 30 October 2013. In the event that it is not given, the appeal will be dismissed. The costs of that application will be reserved.

80    I will grant a stay of the order of the primary judge given on 7 August 2013 that Mr Rowe pay into Court the sum of $29,988.49. That stay is conditional and will only take effect upon Mr Rowe paying that sum into Court on or before 30 October 2013. The costs of the application for the stay will be reserved.

Associate:

Dated:    18 September 2013