FEDERAL COURT OF AUSTRALIA

Dowling v Fairfax Media Publications Pty Ltd (No. 2) [2010] FCAFC 28

THE COURT ORDERS THAT:

1.                  The appeal in NSD 354 of 2009 be dismissed.

2.                  The appellant pay the costs of the respondent on an indemnity basis.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

THE COURT ORDERS THAT:

1.                  The appeal in NSD 355 of 2009 be dismissed.

2.                  The appellant pay the costs of the respondents on an indemnity basis.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

GRAHAM J

1                     There are two appeals presently before the Court.  These are identified as appeals in proceedings NSD 354 of 2009 and NSD 355 of 2009.  The appeals relate to a judgment of Moore J, delivered on 9 April 2009, when the two matters were before the Court at first instance.  His Honour delivered one set of reasons referable to the two matters which were heard together.

2                     The original Notices of Appeal were filed on 28 April 2009. They were superseded by ‘AMMENDED’ Notices of Appeal filed on 29 June 2009.  The appeal in proceedings NSD 354 of 2009 is an appeal from the judgment and orders of the primary judge in proceedings NSD 1743 of 2008 and the appeal in proceedings NSD 355 of 2009 is an appeal from the judgment and orders of the primary judge in proceedings NSD 1744 of 2008.

3                     I have had the advantage of reading the draft reasons for judgment of Logan and Flick JJ in these matters.  I entirely agree with their Honours’ conclusion that the appeals in each matter should be dismissed and with their reasons for reaching that conclusion.  I would, however, wish to provide the following additional reasons.

4                     It would appear that the appellant was employed by Fairfax Media Publications Pty Limited then known as John Fairfax Publications Pty Limited in January 2006 and worked for that company until the termination of his employment on 9 May 2007.

5                     As a result of proceedings which the appellant instituted on 29 June 2007 and subsequently, following the termination of his employment, he has become quite an experienced litigant in person

6                     In his proceedings NSD 1743 of 2008 he alleged that he was terminated for a prohibited reason in contravention of s 792(1)(a) of the Workplace Relations Act 1996 (Cth) (‘the Act’).  Under s 809 of the Act the onus of proving that he was not dismissed for a prohibited reason fell upon his employer.

7                     In proceedings NSD 1744 of 2008 the appellant made parallel claims against numerous people whom he contended were involved in his alleged wrongful dismissal.  These included the Managing Director of the parent company Fairfax Media Limited, the non-executive directors of that company, the company secretary of that company and a number of employees and contract workers retained by Fairfax Media Publications Pty Limited, a subsidiary of Fairfax Media Limited.

8                     Proceedings were apparently commenced in this Court and were included in the docket of Justice Gyles.  His Honour transferred the proceedings to the Federal Magistrates Court of Australia.  After numerous skirmishes in that Court in proceedings SYG 2671 of 2007 and SYG 2704 of 2007 before Cameron FM, his Honour summarily dismissed both proceedings.

9                     Following the grant of leave to appeal from the ultimate decisions of 26 June and 28 July 2008 of Cameron FM, appeals to this Court were brought by the appellant.  Those appeals, in proceedings NSD 1031 of 2008 and NSD 1197 of 2008 were heard by Justice Jagot (see Dowling v Fairfax Media Publications Pty Ltd 172 FCR 96), who upheld the appeals and remitted the matters to the Federal Magistrates Court for determination according to law.

10                  Cameron FM then proceeded to transfer the matters back to the Federal Court of Australia whereupon they came into the docket of the primary judge from whose judgment delivered on 9 April 2009 the appeals presently before the Court have been brought.  His Honour dismissed the application in the proceedings which became NSD 1743 of 2008 before his Honour against the appellant’s former employer Fairfax Media Publications Pty Limited and also dismissed the proceedings which became NSD 1744 of 2008 against the natural person respondents.  His Honour ordered that the appellant pay the costs of the second to tenth respondents inclusive as the non-executive directors of Fairfax Media Limited, in the proceedings.  His Honour, perhaps inadvertently, omitted to note that the tenth respondent, Miss Hambly, was in fact the company secretary rather than a non-executive director.  Counsel for the respondents acknowledges the distinction between the second to ninth respondents on the one hand and the tenth respondent on the other but submits that the same order as to costs should have been made in respect of the tenth respondent as was made in respect of the second to ninth respondents.

11                  In my opinion, even though Miss Hambly may have had no part to play in the termination of the appellant’s employment by Fairfax Media Publications Pty Limited, nevertheless as an employee of the Fairfax Media Limited group she may, more naturally, fall within the category of persons in respect of whom no order as to costs should be made because of s 824 of the Workplace Relations Act. One might surmise that her costs would be unlikely to be any different from those of Fairfax Media Publications Pty Limited in respect of which no order should be made as indeed no order was made, because of that section.  Given that Miss Hambly’s costs are likely to be immaterial and such that they would not increase the burden falling upon the appellant by virtue of the primary judge’s order in respect of the costs of the non-executive directors, I would be loath to vary the order that his Honour made.

12                  Sections 792 and 809 of the Act fell within Part 16 and s 824 fell within Part 18 of the Act.  By s 3 of and item 1 of Schedule 1 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, Parts 2 to 23 inclusive of the Act were repealed from 1 July 2009 but, relevantly, continued for the purposes of these appeals, by Clause  11 of Schedule 2 to that Act.

13                  The ‘GROUNDS OF APPEAL’ and ‘ORDERS SOUGHT’, as recorded in the two ‘AMMENDED’ Notices of Appeal, were substantially similar.  The 14 so-called grounds of appeal were as follows:

‘1.   Justice Moore clearly took a bribe off the respondents – which includes but is not limited to a bribe off John B Fairfax, Nicholas Fairfax and Mark Burrows.

2.    Justice Moore erred in law in failing to disqualify himself upon the grounds of having a personal interest and breached section 34 of the 1914 Crimes Act – which includes but is not limited to knowing [in NSD 355 of 2009 this reads ‘a bribe off’] John B Fairfax, Nicholas Fairfax and Mark Burrows.

3.    Justice Moore erred in law in failing to make a summary judgment in my favor and breached section 34 of the 1914 Crimes Act, given that Ron Walker, Julia Marion King, Roger Corbet, Mark Burrows, David Evans, Peter Young, John Fairfax, Nicholas Fairfax, Gail Hambly failed to discharge the reverse onus of proof

4.    Justice Moore erred in law and committed financial fraud and breached section 34 of the 1914 Crimes Act in awarding costs to Ron Walker, Julia Marion King, Roger Corbet, Mark Burrows, David Evans, Peter Young, John Fairfax, Nicholas Fairfax, Gail Hambly.

5.    Justice Moore ignored gross amounts of perjury and evidence [in NSD 355 of 2009 the words ‘and evidence’ were omitted]  and in doing so breached section 34 of the 1914 Crimes Act.

6.    Attempted blackmail by Justice Moore. Justice Moore threatened and intimidated me on numerous occasions which includes but is not limited to threatening me with jail on the instructions of the respondent’s barrister Kate Eastman.  The basis of this was a perjured affidavit by one of the respondent’s solicitors, Shivchand Jhinku.  Justice Moore should have stood down from my matters as soon as he threatened me with jail.

7.    Justice Moore breached section 34 of the 1914 crimes act and tampered with and diluted discovery orders in Chambers without my consent to the benefit if the respondents.  He also gave the respondents until the 17^th of March to make available the documents for discovery.

8.    Justice Moore erred in law in that he refused to allow me interrogatories.

9.    Justice Moore erred in law in that he refused to allow me to subpoena Ron Walker, Julia Marion King, Roger Corbet, Mark Burrows, David Evans, Peter Young, John Fairfax, Nicholas Fairfax, Gail Hambly.

10.  Justice Moore erred in law in that he refused to allow me to subpoena the respondents lawyer Shivchand Jhinku.

11.  Justice Moore erred in law in that he allowed Gail Hambly in court for the full the hearing even though she was one of the respondents.

12.  Justice Moore has breached section 34 of the 1914 Crimes Act in failing to hand down his written reason for the Notice of Motion that was heard on the 10^th of March 2009.

13.  Justice Moore erred in law in failing to stop the criminal conduct of the respondents Barrister Kate Eastman and the Freehills Solicitors Shivchand Jhinku and Emily Wong.  Shivchand Jhinku was a respondent in one matter and a witness in the two other matters.

14.  Further grounds may be added’

14                  The orders sought in the ‘AMMENDED’ Notices of Appeal were as follows:

‘1.   The matter is set down for re-hearing.

2.    Interim reinstatement

2.    Full back pay from the 9^th May 2007

3.    Damages and Costs  [In NSD 355 of 2009 the words ‘Damages and’ were omitted.]

4.    Having regard for section 809 of the Workplace Relations Act, Ron Walker, Julia Marion King, Roger Corbet, Mark Burrows, David Evans, Peter Young, John Fairfax, Nicholas Fairfax, Gail Hambly, be charged with Contempt of Court for failing to file a defence.

5.    Their defense council (Kate Eastman and Shivchange Jhinku and Emily Wong and Chris Barton) be charged with Contempt of Court and be given jail sentences and referred to the Office of the Legal Services Commissioner.

6.    Any other Orders that Court considers appropriate’

15                  Notwithstanding the appellant’s awareness that his appeals had been fixed for hearing on 6 November 2009, in mid-August, he failed to discharge his responsibilities in respect of the preparation and filing of appeal books.

16                  On 23 October 2009 steps were put in place to remedy this situation but, in the result, no appeal books were produced.  The appellant explained his omission in part because he had not been provided with a free copy of the transcript of the proceedings before the primary judge.  He apparently presented Notices of Motion for filing in each proceeding in August seeking an order that a copy of the transcript be provided to him but these Notices of Motion were not accepted by the Registry for filing, following advice from Justice Jacobson that applications for mandamus would not lie against the primary judge requiring him to make the transcript available. 

It may be that notification of the rejection of the Notices of Motion for filing did not reach the appellant until mid-October, even though the Court’s files suggest that by letters dated 17 August 2009 the appellant was advised of such rejection and his documents were returned to him.  In any event, it is clear that he made no attempts to follow up his wish that transcript be provided to him free of charge, after he presented his draft Notices of Motion for filing.

17                  One of the claimed reasons of the appellant as to why he needed the transcript was to enable him to establish that a number of the witnesses who gave evidence before the primary judge had perjured themselves.

18                  It so happens that the primary judge had made an order for a copy of the transcript to be provided to the appellant for his consideration in preparing his written submissions at first instance, which he presented to the primary judge on 31 March 2009.  The appellant accepts that he had a copy of the transcript for four or five days but he had to thereafter return it to the Court.

19                  On the hearing of his appeals on 6 November 2009 the appellant handed up copies of his written submissions of 31 March 2009 which made extensive references to the transcript and to witnesses who had allegedly perjured themselves.

20                  When the appellant first enquired as to whether the Court would provide him with a copy of the transcript for use in relation to his appeals, he was advised that he could attend upon the Registry and read the Court’s copy of the transcript.  He says that he was further advised that if he identified pages which he wished to have included in the appeal books as relevant to his grounds of appeal he could notify the Court of the relevant page numbers whereupon the Court ‘may’ make copies of them available to him for inclusion in the appeal books.

21                  In this context, the appellant acknowledges that he attended the Court registry and spent about half an hour going through the transcript.  Whilst he may have indicated to the Registry staff that he would return to further consider the transcript on a later date, he elected not to do so and informed the Court on the hearing of the appeal that he was not disposed to take time off work from his then current employer to enable him to give consideration to the relevant transcript with a view to identifying parts of it that he may wish to have copied.  Given that no assurance had been provided to him that selected pages would be copied and made available to him free of charge he considered that the exercise was pointless and took no further interest in reviewing the transcript. 

22                  When the appeals were called for hearing the appellant made an application that the requirements of the rules in respect of the provision of appeal books be dispensed with, that an order be made that he be provided free of charge with a copy of the transcript and that the hearing of the appeals be adjourned.

23                  The Court was not disposed to make any further orders in respect of the provision of appeal books, it dismissed the application for the supply of a free copy of the transcript to the appellant and refused the appellant’s application for adjournment of the hearing of the appeals indicating that it would proceed to address the appeals with the benefit of the primary judge’s judgment, the Notices of Appeal and Amended Notices of Appeal and the appellant’s outline of submissions filed 2 November 2009.

24                  At the commencement of the hearing of the appeals, the appellant was reminded of what Bryson JA said in Malouf v Malouf (2006) 65 NSWLR 449 about the need to avoid preferential treatment for self-represented litigants in fairness to the other parties.  At 452 Bryson JA said:

‘Courts should not go so far in accommodating the positions of unrepresented litigants as to make it an advantageous procedural step to dismiss one’s lawyers or to retain none.  Nor should courts slip from unreadiness to shut a party out from litigating an issue which is fairly arguable into incapacity to close off procedural opportunities which are not taken.  Without procedure, procedural directions and compliance, justice will not be done at all.  The time, patience, resources and willingness to behave appropriately of those who do comply should have a place in consideration of what the court should do when a party who has not complied with earlier directions seeks an extension of time, or some procedural indulgence by which earlier directions are disregarded.  The compliant also have an entitlement to consideration, and their compliance should not be disregarded, or mocked, by treating their opponent’s obligation to comply with the court’s directions as less than important or as superfluous.’

25                  The 13 substantive grounds of appeal upon which the appellant relied were, in many respects, quite scurrilous and deserving of censure of the appellant.  They included allegations to the effect that the primary judge had taken bribes from the respondents, that witnesses had perjured themselves by giving deliberately false evidence and that legal representatives for the respondents had been parties to a conspiracy to pervert the course of justice. 

26                  One would like to excuse the intemperate language employed by the appellant on the basis of his limited understanding of the English language.  However, it became quite clear when he was asked what he had meant by his use of the words ‘bribery’, ‘perjury’ and ‘conspiracy’ that he had in mind deliberate wrongdoing on the part of the persons against whom his allegations were made. 

27                  Needless to say the appellant was unable to offer any plausible explanation for his allegation that the primary judge had accepted a bribe from the respondents.  If one tried to give the appellant the benefit of some doubt one might say that he sought to advance a case to the effect that the learned primary judge had knocked back many of his requests for interlocutory relief in relation matters such as discovery, interrogatories and the issue of subpoenas.  Furthermore, he contended that the primary judge failed to give reasons for his decisions in relation to a number of his determinations in respect of these matters.  It followed, so the appellant submitted, that as he had been denied the discovery which he sought, the opportunity to administer the interrogatories which he sought and the opportunity to subpoena witnesses notably the second to tenth respondents, the learned primary judge had plainly approached the matter with a closed mind such that he could not be persuaded as to the rightness of the appellant’s case.  The appellant submitted that the primary judge was biased against him.  He went further and submitted that it was not a mere case of apprehension of bias such that a reasonable bystander might believe that he might not bring an open mind to the determination of the issues in the case.

The appellant went on to submit that the only explanation for the bias which he contended that the primary judge exhibited towards him must have been that he had been in receipt of a monetary or some other form of bribe.

28                  In my respectful opinion the appellant’s process of reasoning does not bear analysis.  It is true that he was denied the opportunity to issue some subpoenas, he was denied the right to administer interrogatories which he submitted to the Court and he did not enjoy the benefit of the discovery to which he believed he was entitled.  In particular he took exception to the fact that the primary judge chose not to require that the respondent’s lists of documents be verified.

29                  It is important to note, of course, that the appellant did not seek leave to appeal from these findings which he now relies upon to justify his argument that the primary judge was biased against him and therefore must have been in receipt of a bribe from the respondents. 

30                  Whilst the primary judge may not have delivered a formal set of published reasons for his decisions on the interlocutory applications, excluding his oral observations thereon from the relevant transcript, the truth of the matter is that his Honour did give reasons, albeit brief, which were included in the transcript.  No greater formality was required in respect of the applications in question.

31                  As to the appellant’s allegations that certain witnesses committed perjury giving deliberately false or fabricated evidence, it seems quite clear that the appellant had little understanding of what was said by the High Court in Smith v New South Wales Bar Association (1992) 176 CLR 256 at 268.  In that case the High Court pointed out that evidence may be rejected without descending into the making of findings that a witness deliberately lied.

32                  In his written submissions of 31 March 2009 before the primary judge, the appellant, using somewhat stronger language, drew attention to parts of the evidence which he said should be rejected because the witnesses who had given evidence that did not favour his case had committed perjury.  No substantiation for the appellant’s allegations of perjury was advanced.

33                  In relation to the charge made by the appellant that one barrister and two solicitors representing the respondents had conspired to pervert the course of justice, it is important to note that the agreement said to constitute conspiracy was not said to have been made until months after the primary judge handed down his reasons for judgment.

34                  The appeals were heard with ample opportunity being afforded to the appellant to address each ground of appeal seriatim and in some instances he was permitted to revisit them more than once.  But when it came to the provision of precise details of his allegations his case simply fell apart.  He never came forward with material which justified any of the grounds that he advanced in the most general of terms.  No argument was developed that warranted consideration.

35                  In my opinion the primary judge did not fall into any relevant error.  The appellant’s unreasoned and unwarranted malignment of others provided no proper basis whatsoever for a challenge to any relevant findings of the primary judge.  None of the grounds of appeal have been made out and the appeals in each matter should be dismissed with appropriate orders as to costs. 

Costs

36                  Whilst the ordinary rule in respect of costs is that the unsuccessful party must pay the successful party’s costs, that rule must yield to any relevant statutory provision to the contrary.  In this case, by virtue of s 824 of the Act, a party to a proceeding in a matter arising under the Act must not be ordered to pay some or all of the costs incurred by any other party to the proceeding unless the first-mentioned party instituted the proceeding or appeal vexatiously or without reasonable cause or the court is satisfied that the first-mentioned party has, by an unreasonable act or omission, caused another party to incur costs in connection with the proceeding (including an appeal).

37                  The test for determining whether a proceeding is in a matter arising under the Act for the purposes of s 824(1) (previously s 347(1) of the Act) is whether the right or the duty that is sought to be enforced owes its existence to a provision of the Act (per Brennan CJ, McHugh and Gummow JJ in Re McJannet; ex parte The Australian Workers’ Union of Employees, Queensland [No 2] (1997) 189 CLR 654 at 656).

38                  It is clear in the present case that the proceeding which was instituted by the applicant against Fairfax Media Publications Pty Limited, formerly know as John Fairfax Publications Pty Limited, was in a ‘matter arising under’ the Act.  Whatever other ‘matters’ may be inherent in the one legal controversy, the present case involved a proceeding in respect of a controversy which arose under the Act.

39                  However, the protection from an order as to costs for which s 824(1) of the Act provided was significantly qualified when s 824(2) was inserted into the Act (then identified as s 347(1A)) by the Workplace Relations Amendment (Work Choices) Act 2005 (Act No. 153 of 2005) which commenced on 27 March 2006.  Section 824(2)-(3) provided as follows:

‘824(2)            Despite subsection (1) if a court hearing a proceeding (including an appeal) in a matter arising under this Act (other than an application under section 663) is satisfied that a party to the proceeding has, by an unreasonable act or omission, caused another party to the proceeding to incur costs in connection with the proceeding, the court may order the first-mentioned party to pay some or all of those costs.

(3)            In subsections (1) and (2):

costsincludes all legal and professional costs and disbursements and expenses of witnesses.’

40                  The primary judge recorded the relevant principles to be applied in respect of costs in his reasons for judgment (see Dowling v Fairfax Media Publications Pty Ltd [2009] FCA 339) at [49]-[56].  His Honour proceeded to say at [57] in respect of the claims made by the appellant in proceeding NSD 1744 of 2008:

‘… There was at the time these proceedings were commenced, and this remains the case, no conceivable basis for joining the non-executive directors or prosecuting the claim against them.  It was not more than fanciful speculation to think that they may have been involved in the termination.  Joining them and prosecuting the case against them was an unreasonable act. …’

The primary judge proceeded to order that the appellant pay the costs of the said non-executive directors in proceeding NSD 1744 of 2008. 

41                  Nothing was said during the course of the appellant’s argument on the hearing of the appeals to suggest that the non-executive directors of Fairfax Media Limited had any individual or collective involvement in the termination of the appellant’s employment by Fairfax Media Publications Pty Limited. The joinder of the non-executive directors of Fairfax Media Limited as the second to ninth respondents inclusive in the appeal in NSD 355 of 2009 was, in the circumstances without any reasonable cause.  In my opinion the circumstances of this case are such that the appellant ought to be ordered to pay the costs of the second to ninth respondents inclusive in respect of the appeal covered by proceeding NSD 355 of 2009 and it would be appropriate to order that such costs be payable on an indemnity basis. The circumstances of this case were ‘special’ and removed from the ‘ordinary’ category of case (see per Lindgren J in Sony Computer Entertainment Australia Pty Ltd v Dannoun (No. 2) [2001] FCA 1530 at [4]).

42                  Relevant principles to be observed in respect of costs are conveniently summarised in the judgment of Sheppard J in Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 at 230 – 234.

43                  The ordinary rule is that, where the Court orders that the costs of one party to litigation be paid by another party, the order is for payment of those costs on the party and party basis.  In consequence of the settled practice which exists, the Court ought not usually make an order for the payment of costs on some basis other than the party and party basis.  The circumstances of the case must be such as to warrant the Court departing from the usual course.  The existence of particular facts and circumstances capable of warranting the making of an order for payment of costs on the indemnity basis does not mean that judges are necessarily obliged to exercise their discretion to make such an order.  Normally, costs are at the discretion of the trial judge.  Provided that the discretion is exercised having regard to the applicable principles and the particular circumstances of the instant case, its exercise will not be found to have miscarried unless it appears that the order which has been made involves a manifest error or injustice.

44                  If a proceeding has no prospects of success it may well be appropriate to make an order for the payment of costs by an unsuccessful party on an indemnity basis rather than a normal party and party basis.

45                  In Gersten v Minister for Immigration & Multicultural Affairs [2001] FCA 260 at [19] a Full Court consisting of Lee, Carr and Sackville JJ said:

‘If an action is commenced when proper advice would indicate that the proceeding has no prospect of success, a discretion to award indemnity costs is ordinarily enlivened. …’

46                  This leaves for consideration the question of costs in relation to the appeal instituted against Fairfax Media Publications Pty Ltd in proceeding NSD 354 of 2009 and the appeal instituted against the first and tenth to seventeenth respondents inclusive in proceeding NSD 355 of 2009.  Should the appellant enjoy the protection afforded by s 824(1) in respect of the costs of the appeal?  Should there be an order made in respect of some or all of the relevant respondents’ costs pursuant to s 824(2) of the Act?

47                  In my opinion, all of each respondent’s costs in respect of the relevant appeal would answer the description of being costs incurred ‘in connection with the proceeding’, given that ‘proceeding’ in s 824 includes ‘an appeal’. 

48                  The appellant’s failure to secure the due settling, preparation, filing and service of the appeal papers necessary to enable him to make good his bold and inflammatory grounds of appeal, warrants censure.  It is certainly a case where the appellant should be ordered to pay those costs incurred by the relevant respondents by his unreasonable omissions in this regard.  However, there will inevitably have been other costs incurred by those respondents which were occasioned by the very service upon them of the relevant Notices of Appeal and Amended Notices of Appeal. 

49                  Given that the appellant’s appeals were devoid of any substance, it may properly be said that the appellant’s service of the Notices of Appeal and amended notices of appeal constituted unreasonable acts which caused the relevant respondents to incur all oftheir respective legal and professional costs and disbursements.  In my opinion, the appellant should be ordered to pay all such costs and disbursements.  Logically, those costs and disbursements will, given the language chosen by the legislature, have to be calculated on an indemnity basis.

50                  For convenience sake, the appropriate orders as to costs need not differentiate between the second to ninth respondents on the one hand and the first and tenth to seventeenth respondents inclusive on the other, in the appeal in proceedings NSD 355 of 2009.  It is also unnecessary to distinguish between costs and disbursements referable to the appellant’s failure to secure the due settling, preparation, filing and service of the appeal papers and the respondents’ other costs and disbursements in the two appeals.

51                  The unreasonable acts and omissions of the appellant warrant orders in each appeal that the appellant pay the costs and disbursements incurred by the respondent/s on an indemnity basis.

Associate:

Dated:         16 March 2010

REASONS FOR JUDGMENT

LOGAN AND FLICK JJ

52                  On 31 October 2008, the Federal Magistrates Court transferred to this Court two proceedings initiated by the now Appellant.

53                  In one proceeding (NSD 1743/2008), he claimed that his employment had been terminated by the Respondent in contravention of s 792(1)(a) of the Workplace Relations Act 1996 (Cth) (the “Workplace Relations Act”). In the other proceeding (NSD 1744/2008), he claimed that a number of persons were involved in the contravention of s 792(1)(a).

54                  Both proceedings were heard before his Honour Justice Moore in March of 2009. In April 2009, his Honour delivered judgment and made orders that in each proceeding the application was to be dismissed. Consequential costs orders were also made: Dowling v Fairfax Media Publications Pty Ltd [2009] FCA 339, 182 IR 28.

55                  On 28 April 2009 Notices of Appeal were filedin respect of each proceeding. On 29 June 2009 an Amended Notice of Appeal was also filed in each proceeding. The Amended Notices of Appeal in the two proceedings are in almost identical terms.

56                  On 29 July 2009 an order was made that the appeals were to be set down for hearing in the sittings of the Full Court of this Court commencing on 2 November 2009.

57                  Both appeals were listed for hearing before the Court as presently constituted on 6 November 2009. Both appeals were heard on that date. The appeals were heard and are now resolved by reference to written Outlines of Submissions as filed by both the Appellant and the Respondents, oral submissions, and a bundle of documents compiled by the Respondents rather than by reference to Appeal Books.

58                  It is concluded that the appealsshould both be dismissed. They are without substance. Moreover, the Appellant has proceeded in such disregard of the Rules of this Court that the appeal should also be dismissed upon that basis. 

Compliance with the Federal Court Rules

59                  In the present proceeding there has been a repeated failure on the part of the Appellant to comply with important procedural requirements imposed by the Federal Court Rules upon all appellants.

60                  In order to facilitate the hearing and resolution of any appeal, O 52 of those Rules provides for a number of procedural steps to be undertaken. Fundamental to the proper hearing and resolution of any appeal, and to O 52, are those rules which provide (inter alia) for:

·                    the filing of a notice of appeal in accordance with the prescribed form (r 12(1));

·                    a statement in the notice of appeal of “the grounds relied upon in support of the appeal” (r 13(2)(b)); and

·                    the filing of the notice of appeal within 21 days or within such further time as may be allowed (r 15(1)).

Provision is also made for:

·                    the filing in the Registry by an appellant of a “draft index” of an Appeal Book (r 27);

·                    a determination by the Registrar of “the documents and matters to be included in the appeal papers” (r 28A(2)(a)); and

·                    the preparation and filing of the “appeal papers” (rr 28B and 28C).

61                  Notwithstanding these rules as contained within O 52, the general power conferred by O 1 r 8 of the Federal Court Rules should also be recalled. That rule provides as follows:

Relief from rules

The Court may dispense with compliance with any of the requirements of the Rules, either before or after the occasion for compliance arises.

This rule, it has been said, “confers a very wide discretion on the court”: cf Lazar v Taito (Australia) Pty Ltd (1985) 5 FCR 395 at 414 per Neaves J. The power “may be exercised … where there is no apparent injustice and the alleged error can only be one of procedure”: at 403 to 404 per McGregor J. “There is no general test to be applied in exercising the discretion given under O 1 r 8, save that the Court ought to do what justice appears to require”: Rishmawi v Minister for Immigration and Multicultural Affairs [1999] FCA 611 at [7] per Kiefel J. Albeit in a different factual context, it has further been said that the “essential concern of the Court must be to adopt a process for communication which allows for an exchange between the Court and the litigants, and between the litigants themselves”: SAAK v Minister for Immigration and Multicultural Affairs [2002] FCAFC 86 at [49], 121 FCR 185 at 194 per North, Goldberg and Hely JJ. By way of example, the rule has been invoked where a notice of appeal was filed within time but service had not been effected within 21 days: Moore v Tooheys Ltd (1981) 56 FLR 345 at 349 per Bowen CJ, Northrop and Morling JJ.

62                  In the present proceeding there has been no compliance by the Appellant with O 52 r 13(2)(b) — but that omission can presently be left to one side.

63                  The present matter of concern focuses upon those procedural steps which are aimed at ensuring a Full Court has before it in a timely and organised manner all documents necessary for the resolution of the appeal listed for hearing before it. Non-compliance with these rules in particular may not necessarily lead to an appeal being struck out or dismissed: e.g. Jandruwanda v University of South Australia [2003] FCA 1456. But a failure to comply with the provisions which ensure that an appeal can proceed may constitute a failure to prosecute an appeal justifying an order that the appeal be dismissed: e.g. Goldie v The Commonwealth of Australia [2004] FCA 973. Whether an order is made that an appeal should be struck out for any such non-compliance with the Rules must necessarily depend upon the facts and circumstances of each individual case, and upon a consideration of those interests relevant to the proper administration of justice. 

64                  In the present proceeding there has been ongoing non-compliance with O 52 r 27. When the matter was listed before a Registrar on 25 May 2009 no draft index of an appeal book had been provided. The matter was adjourned to 2 July 2009. On 29 June 2009, however, a “draft appeal book” was apparently provided by the Appellant in which he relevantly sought an order that he need not comply with O 52 rr 26 to 28. When the matter came back before the Registrar on 2 July 2009 the matter was adjourned due to the illness of the Appellant, and on 8 July 2009 it was again adjourned to 15 July 2009 due to the Appellant’s illness.

65                  The need for compliance with O 52 rr 26 to 28 was again canvassed with the Appellant on 15 July 2009. The Appellant was told that an order dispensing with compliance with O 52 rr 26 to 28 could not be considered without the Registrar first seeing a more detailed draft index of the documents sought to be reproduced in the appeal books.

66                  Needless to say, the process whereby the two appeals as filed by the Appellant were to be resolved was not progressing smoothly.

67                  On 29 July 2009, when the Order was made setting the appeal down for hearing in the sittings of the Full Court of this Court in November 2009, an Order was also made that:

The parties prepare the appeal[s] in accordance with the procedures set out in Part B of Practice Note No 1.

Practice Note 1, as it then stood, dealt with appeals to a Full Court.

68                  Thereafter, on 14 August 2009 the Appellant attempted to file a notice of motion in the Registry seeking a variety of relief, including again an Order that compliance with O 52 rr 26 to 28 be dispensed with. A direction was made by another Judge of this Court on 14 August 2009 directing the Registry to refuse to accept the notice of motion for filing. That direction was made pursuant to O 46 r 7A of the Federal Court Rules.

69                  On 17 August 2009 an email was sent to the Court by the Appellant. That email contended that it was futile to attempt any further resolution of any index to an appeal book until the Notice of Motion was resolved. Upon receipt of that email a further settlement of index meeting scheduled for 18 August 2009 to again attempt to settle an index to the appeal book was vacated.

70                  By now the appeals had been set down for hearing on 6 November 2009. The presiding Judge became aware of the absence of any Appeal Book and the matter was set down for Directions before Flick J on 23 October 2009 in a final attempt to ready the appeals for hearing or at least to address the outstanding concerns of the Appellant.

71                  On that occasion Orders were made that:

1.         The Appellant file and serve forthwith (but no later than 4 pm on 30 October 2009) appeal books in both NSD 354 of 2009 and NSD 355 of 2009 in accordance with a draft prepared by the Registry and forwarded to the Appellant on 15 July 2009.

2.         The Appellant file and serve forthwith (but no later than 4 pm on 30 October 2009) a copy of all such other documents or materials he seeks to rely upon in support of his Notices of Appeal.

3.         In the event of non-compliance with Orders 1 and/or 2 an Affidavit be filed and served by the Appellant by 2:15 pm on Monday 2 November 2009 setting forth the reasons for non-compliance.

4.         Any application to further amend the existing Amended Notices of Appeal be filed and served by 4 pm on 30 October 2009.

5.         Any application to vary Orders 1 and/or 2 is to be made to the Full Court at 10:15 am on 6 November 2009.

6.         In the event of an application being made pursuant to Order 5, an Affidavit be filed and served by 2:15 pm on Monday 2 November 2009 setting forth the basis upon which any application is to be made.

7.         The Appellant is to file and serve an Outline of Submissions on or before 2:15 pm on Monday 2 November 2009.

8.         The Respondent is to file and serve an Outline of Submissions on or before 4 pm on Wednesday 4 November 2009.

9.         Costs of this morning are reserved.

On 23 October 2009 the Appellant’s attention was also drawn to those rules which guide the manner in which appeals are normally prepared for hearing and to s 25 of the Federal Court of Australia Act 1976 (Cth) (the “Federal Court Act”). Copies of s 25 and Orders 1 and 52 of the Federal Court Rules were then made available to the Appellant.

72                  Prior to 23 October 2009 an officer in the Registry of this Court both wrote to the Appellant and spoke to him by telephone. The Appellant was advised of both the Directions hearing to be held on 23 October 2009 and the powers of the Court under s 25(2B) of the Federal Court Act. The Appellant’s response was swift. An email was sent on 22 October 2009 to the New South Wales Registry stating in part as follows (without alteration):

… it is my guess that Justice Flick is going to attempt to blackmail me to go forward with the appeal on the 6^th of November either without the transcript or giving me bugger all time to read it otherwise he will dismiss the appeal pursuant to section 25(2B)(ba). Won’t that be interesting if that is right?

Anyhow I thought I should return the favor and put you three on notice the consequences of breaching section 42, 43 and 44 of the 1914 Crimes Act. For section 42 it is five years jail, for section 43 it is five year jail and section 44 it is 3 years jail.

Total = 13 years jail (see attachment Crimes Act 1914 – Summary)

Even though only Justice Flick will be dealing with the directions hearing all three of you will be held accountable as you are the three Appeals Judges dealing with my matter.

It is, of course, a serious matter for any litigant to attempt to communicate with a Judge except in open Court — or by way of any written submissions which may have been directed — in a manner going to the issues to be resolved. It is an even more serious matter to communicate privately with a Judge with a view to attempting to influence him on any matter he has to determine. Clearly the email received by the Registry on 22 October 2009 was most inappropriate. The text of the email is reminiscent (in part) of the allegations being raised in the Amended Notices of Appeal as against the primary Judge. It cannot be dismissed as simply the ill-advised conduct of an unrepresented litigant.

73                  In response to the Orders made on 23 October 2003, the Appellant has filed an Affidavit and an Outline of Submissions. The Affidavit is expressed to be “in response to orders 3 and 6”. No Appeal Book has been filed and no further “other documents or materials” have been filed as Order 2 sought to accommodate.

The Consequences of Failure To Comply

74                  Various powers are conferred upon both a single Judge of this Court and a Full Court to dismiss an appeal.

75                  Section 25(2B) of the Federal Court Act thus provides in part as follows:

A single Judge or a Full Court may:

(a)        ...; or

(aa)      give summary judgment; or

(b)        …; or

(ba)      make an order that an appeal to the Court be dismissed for want of prosecution; or

(bb)      make an order that an appeal to the Court be dismissed for:

(i)         failure to comply with a direction of the Court; or

(ii)        failure of the appellant to attend a hearing relating to the appeal; or

(bc)      vary or set aside an order under paragraph (ba) or (bb); or

(c)        give directions about the conduct of an appeal to the Court, including directions about:

(i)         the use of written submissions; and

(ii)        limiting the time for oral argument.

Order 52 rr 38 and 38A of the Federal Court Rules provides as follows:

38        Time; want of prosecution

(1)        Where an appellant has not done any act required to be done by or under these Rules, or otherwise has not prosecuted his appeal with due diligence, the Court may:

(a)        order that the appeal shall be dismissed for want of prosecution;

(b)        fix a time peremptorily for the doing of the act and at the same time order that upon non‑compliance the appeal shall stand dismissed for want of prosecution, or subsequently and in the event of non‑compliance, order that it be so dismissed; or

(c)        make any other order as may seem just.

(2)        The Court may not make an order under subrule (1) unless notice of the proposed order has been served on the appellant.

(3)        An order under paragraph (1)(b) may be varied at any time before the appeal stands dismissed for want of prosecution, and in special circumstances may be varied or revoked after that time.

38A     Absence of party

(1)        If a party is absent when an appeal is called on for hearing, the Court may:

(a)        order that the hearing not proceed unless the appeal is again set down for hearing or such other steps are taken as the Court directs; or

(b)        adjourn the hearing; or

(d)        proceed with the hearing, either generally or in relation to any claim for relief in the appeal.

(2)        If the Court proceeds with the hearing under paragraph (1)(d), the Court may:

(a)        set aside or vary any order made after so proceeding; and

(b)        give directions for the further conduct of the appeal.

76                  The course of events as they unfolded between May and October 2009 was less than satisfactory — not only for the Appellant, but also for the Respondent and the Court itself.

77                  But it is not considered that that course of events taken in isolation can be properly characterised as a “want of prosecution” of the appeal. The power conferred by O 52 r 38(1)(a) “must not be lightly exercised”: Van Reesema v Giameos (1979) 27 ALR 525 at 530 per Bowen CJ, Fisher and Lockhart JJ. Albeit unsatisfied as to a variety of matters being canvassed at each of the meetings held with the Registrar, the Appellant did not resile from his position that he wanted his appeals heard and determined.

78                  It is perhaps arguable that no occasionthus arises for the exercise of such power as is conferred by s 25(2B)(ba) or O 52 r 38(1)(a) by reference to the events preceding 23 October 2009 alone.

79                  Nor, prior to 23 October 2009, is it considered that any occasion unquestionably arose for the exercise of the power conferred by s 25(2B)(bb)(i) or O 52 r 38(1). There has been an apparent failure on the part of the Appellant to comply with the Orders for the due preparation of the appeal as made on 29 July 2009. Even if the conduct of the Appellant is such as to bring him within the reach of those powers, it is not considered that either power should be exercised by reason of that failure. Thereafter, the events on 14 and 17-18 August 2009 provided a further basis upon which an exercise of those powers may have been appropriate. But the power to strike out an appeal is a serious step. Even in the case of an appellant who is doing little to prosecute his appeal, every effort should be made to have his appeal heard and determined in a manner consistent with the interests of the other parties and the public interest in the administration of justice.

80                  However the Appellant’s conduct between 25 May and 23 October 2009 is to be characterised, the inescapable conclusion is that repeated opportunities were presented to the Appellant to have his appeals properly prepared for resolution by a Full Court. Although, for example, a written copy of the transcript was not provided free of charge to the Appellant for the purposes of prosecuting his appeals, as from 15 July 2009 he was advised by the Registrar that a copy of the transcript would be made available to him for inspection and that copies would be made of any pages he wished to have included in an Appeal Book. Due to work commitments, however, the Appellant apparently did not avail himself of that offer. 

81                  One considerable reason for reservation as to whether or not the powers conferred to strike out an appeal should be exercised by reference to the Appellant’s conduct as between 25 May and 23 October 2009 is founded upon an inference that is open, namely that the Appellant was making it unequivocally clear that his appeals were to be heard — but heard only upon his terms. A similar position confronted the Full Court in Bird v Hon Free, Minister for Schools, Vocational Education and Training (unreported, FCA, Spender, Einfeld and Cooper JJ, QG 3 of 1995, 4 May 1995). The presiding Judge (Spender J) there referred to O 52 r 38(1) and to a number of authorities and continued:

Paper Products Pty Ltd v Tomlinsons (Rochdale) Ltd (1994) ATPR 41-315, is a case where French J gave judgment for a failure by the respondents to file a defence. It was concerned with the operation of the powers contained in O10 of the Federal Court Rules. But his Honour noted at 42,203:

“In the present case there has been a failure to comply with the order of the court requiring the filing of a defence. It is plain that that omission is an expression of a continuing refusal to submit to the jurisdiction of the court or to otherwise co-operate with its procedures in any way. In my opinion, therefore, the case is one which falls within the order. Further orders would be a waste of time having regard to the stated attitude of the two respondents. In my opinion, therefore, there should be judgment against them pursuant to O10 r7(1)(b).”

In this case, in my opinion, there has been a similar expression of attitude on the part of Mr Bird. He has made it plain that he does not intend to prosecute his appeal except on conditions of his own stipulation. He has persistently failed to comply with the direction that he prepare the Appeal Books. He has manifested the intention not to prosecute his appeal when it is called on. There has been, in my opinion, a repeated non-compliance with requirements of O52 in the preparation of this appeal, and that, in my opinion, it is just for the court to make the order dismissing the appeal for want of prosecution.

The other two Judges constituting the Court agreed.

82                  Even though an appellant may not resile from his position that he wants an appeal heard and resolved, it should be noted that the “want of prosecution” referred to in s 25(2B)(ba) is a reference to the prosecution of an appeal in accordance with the Rules of this Court. No appellant can be allowed to unilaterally dictate the manner in which his appeal is to be prosecuted. The present Appellant is in the same position as any other appellant in this Court.

83                  Any reason for reservation as to whether the appeals should be dismissed pursuant to s 25(2B) or O 52, however, disappears when the events of 23 October 2009 are taken into account together with the events of 6 November 2009.

84                  On 23 October 2009 the situation confronting the Appellant was squarely addressed.

85                  On that occasion, a further opportunity was presented to the Appellant to either abandon or amend the Grounds upon which he wished to advance his appeals. An abandonment of one or other of the existing Grounds may have occasioned the making of an order confining the ambit of the evidence which could have been of relevance to the arguments he sought to advance. But none of the Grounds were then abandoned. There was no abandonment, for instance, of the Ground that the primary Judge:

… ignored gross amounts of perjury and evidence and in doing so breached section 34 of the 1914 Crimes Act.

Another Ground alleges that the primary Judge had “attempted [to] blackmail” the Appellant in that he:

… threatened and intimidated me on numerous occasions which includes but is not limited to threatening me with jail on the instructions of the respondent’s barrister … The basis of this was a perjured affidavit by one of the respondent’s solicitors …

It is then said that the primary Judge:

… should have stood down from my matters as soon as he threatened me with jail.

A further Ground alleges that the primary Judge:

… took a bribe off the respondents – which includes but is not limited to a bribe off John B Fairfax, Nicholas Fairfax and Mark Burrows.

Given that all such Grounds were pressed, no occasion arose (for example) to delete from the Appeal Books any transcript or to limit the number of affidavits to be included. The allegations being made against the primary Judge were said to be founded upon “inferences” to be drawn from the evidence and (it was understood) from exchanges recorded in the transcript.  

86                  It was at the conclusion of the Directions hearing on 23 October 2009 that the Orders were made in a final attempt to ensure the smooth progress of the appeals set down for hearing on 6 November 2009.

87                  The renewed application made on 6 November 2009 to vacate Orders 1 and 2 as made on 23 October 2009 and to adjourn the hearing of the appeals was without merit.

88                  Whatever difficulties may have confronted the Appellant in respect to copying those parts of the transcript he sought to rely upon in his appeals, there was no such difficulty in his copying those affidavits or those parts of the affidavits he sought to rely upon. Although he did not have possession of the transcript, he retained a copy of the affidavits relied upon in the proceeding before the primary Judge. But no affidavit material was made available by the Appellant either prior to or at the commencement of the hearing of the appeals on 6 November 2009. Given the extraordinary nature of the allegations advanced in the Amended Notices of Appeal, the Orders made on 23 October 2009 did not confine the Appellant to only that material as was before the primary Judge. But no “other documents or materials” were filed prior to or at the commencement of the hearing of the appeals.

89                  And the difficulty said to be encountered by the Appellant with respect to the transcript is equally without substance. As from at least 15 July 2009 the transcript was available to the Appellant for inspection in the New South Wales Registry of this Court. The Appellant was informed that those parts of the transcript he wished to rely upon would be copied for him. The same arrangement was made following the hearing on 23 October 2009. If he did not wish to avail himself of that opportunity at any point of time during the previous five months, that was a matter for him. Moreover, it only emerged during the course of the hearing of the appeals that the Appellant had previously had access to the entirety of the transcript. At the conclusion of the hearing of the proceedings before the primary Judge, the transcript had then been made available to him and returned. Detailed written submissions provided to the primary Judge, and also provided to this Court, were replete with references to particular pages of the transcript. Why copies of at least those pages which had previously been identified as relevant to the Appellant’s case were not requested was not explained. The Appellant asserted that he had not had adequate access to the transcript at the conclusion of the hearing at first instance and that there may well have been further pages of the transcript relevant to his case. But that assertion does not address why the pages previously selected were not copied and made available to this Court and does not address the failure of the Appellant to avail himself of renewed access to the transcript from at least 15 July 2009. And, any prejudice that may have been asserted by the Appellant disappeared (at least in part) with the provision to him on 4 November 2009 by the Respondents of the bundle of documents they had prepared for the purposes of the appeal. That bundle included at least some of the transcript of the proceeding before the primary Judge. 

90                  In the circumstances of the present appeals, it is considered that orders should be made pursuant to s 25(2B) dismissing both appeals. Such orders could be founded upon both s 25(2B)(ba) and (bb). Such steps as have been consistently taken since 23 May 2009 have all been directed to ensuring that the Appellant could have resolved the appeals he first filed on 28 April 2009.

91                  Notwithstanding the considerable efforts which have been pursued in order to ensure that the appeals can be resolved on their merits, the conclusion reached is that the Appellant has done nothing himself to facilitate that process. He has done nothing to copy those parts of the affidavit material that he wished to rely upon in support of his appeal nor has he availed himself of the opportunity to inspect the transcript and to have those parts of the transcript he wished to rely upon copied and made available to this Court on appeal. The fact that a fee may have been charged for copying the materials requested is no answer. In the absence of an order to the contrary, an applicant is not entitled to commence proceedings, lose those proceedings and thereafter seek to prosecute an appeal without himself incurring any costs.

92                  The Appellant has failed to prosecute his appeals. And he has failed to comply with the direction of the Court as made on 29 July 2009. These in themselves provide a basis for the dismissal of the appeals. Both appeals should be dismissed.

93                  The failure of an Appellant to attend to the preparation of an Appeal Book cannot deprive a Respondent of the opportunity to have an appeal heard and resolved as quickly and as expeditiously as possible in a manner consistent with the interests of justice: Davidova v Murphy [2009] FCA 601 at [24]. Nor can such a failure deprive a Respondent of the benefits of the success he has achieved before a primary Judge.

94                  Given the seriousness of the allegations raised in the Amended Notices of Appeal, it has nevertheless also been considered appropriate to address those allegations lest it be perceived that the appeals otherwise had any merit and have been dismissed only for technical reasons. The allegations have no merit.

The Amended Notices of Appeal

95                  The Grounds of Appeal as set forth in each of the Amended Notices of Appeal essentially fall into two categories.

96                  Into the first category fall those purported Grounds which seek to advance the most scandalous allegations against a Judge of this Court. They raise allegations ranging from corruption to criminal conduct.

97                  Before proceeding to discharge the duties of office, all Judges of this Court are required to swear an oath or affirmation: Federal Court Act, s 11. That oath in part requires a Judge to swear that he “will do right to all manner of people according to law without fear or favour, affection or illwill”. It is a most solemn responsibility that is assumed. The form of oath has a long history and may be traced back to a statute enacted by King Edward III in 1346: Toohey J, “Without Fear or Favour, Affection or Ill-Will: The Role of Courts in the Community” (1999) 28 UWA L Rev 1 at 2.

98                  The first category of the Grounds of Appeal could not have been more comprehensively drafted to assert a violation of the responsibility assumed. The email sent to the Registry on 22 October 2009, it should further be noted, expands the attack to include an allegation that at least one of the Judges who now constitute this Full Court has also attempted to “blackmail” the Appellant.

99                  Into the second category fall those purported Grounds  raising contentions that:

·                    the primary Judge should have disqualified himself;

·                    reliance was placed upon “perjured” evidence;

·                    the primary Judge “tampered with and diluted discovery”;

·                    there was what is understood to be a denial of procedural fairness by reason of the primary Judge refusing “to allow me interrogatories”, a refusal to issue a subpoena to a legal representative of the Respondent and other persons, and allowing a person to remain “in court for the full the [sic] hearing even though she was one of the respondents…”; and

·                    a failure “to hand down … written reason [sic] for the Notice of Motion that was heard on the 10^th of March 2009”.

Each of the Amended Notices of Appeal states that “further grounds may be added”. No further Grounds have been added.

100               No Ground of Appeal seeks to directly impugn the manner in which the primary Judge interpreted and applied ss 792, 793 or 809 of the Workplace Relations Act. Nor does any Ground of Appeal seek to directly impugn the manner in which the primary Judge resolved the question of costs. There are, however, grounds which broadly allege that the primary Judge “failed to discharge the reverse onus of proof” and “committed financial fraud … in awarding costs”.

101               Even if an order were not made dismissing the appeals pursuant to ss 25(2B), the conclusion would be reached that the appeals should be dismissed because none of the Grounds of Appeal were made out.

102               When making Order 4 on 23 October 2009 it was envisaged that the Appellant may have wished to further amend the existing Amended Notices of Appeal to incorporate a direct challenge to the conclusions of the learned primary Judge as to:

·                    ss 792, 793 and 809 of the Workplace Relations Act; and/or

·                    costs.

Even if the inappropriate language of “financial fraud” be left to one side, the manner in which the primary Judge otherwise “failed to discharge the reverse onus of proof” and erred in the exercise of his discretion as to costs were left unspecified.

103               The omission of any direct challenge to these conclusions in the existing Amended Notices of Appeal was a matter raised with the Appellant on 23 October 2009. The prospect that there may have been an oversight on the part of the Appellant in failing to challenge these conclusions more directly was sought to be accommodated by allowing an application to be made to further amend. But there has been no such application. Indeed, the failure on the part of the Appellant to directly challenge those matters central to the conclusions of the primary Judge only provides further reason to dismiss his appeals. Although the Appellant may wish to have issues agitated in the Full Court of this Court, the inescapable inference is that he does not wish to prosecute an “appeal” — being an appeal directed to the decision as made by the primary Judge. The hearing of an appeal in this Court is not the occasion for the Appellant to seek to agitate issues other than those relevant to the correction of appellable error.

104               The submissions advanced by the Appellant in support of his Grounds of Appeal necessarily proceeded in somewhat of a vacuum. The absence of Appeal Books necessarily placed a considerable constraint upon the Court’s ability to fully understand the submissions being advanced. But that difficulty was a difficulty forced upon the Court by the Appellant’s own inaction. That difficulty was only compounded by a statement by the Appellant on a number of occasions during the course of the hearing of the appeal that there was further evidence available to him — but that it would not be provided to this Court. The constraints imposed upon this Court in resolving the appeals are constraints attributable to the Appellant alone.

105               From the bundle of documents provided by the Respondents there nevertheless remained sufficient material upon which the arguments of the Appellant could be understood. Notwithstanding the absence of Appeal Books, it is considered that there remained a sufficient basis upon which the Grounds of Appeal could be addressed and resolved.

The Allegations as to Judicial Misconduct

106               No litigant should be deterred from fearlessly advancing such arguments on appeal as can be responsibly and appropriately raised for resolution.

107               It may only be expected that the more serious the allegations of judicial misconduct, the more reticent may be a litigant to raise such allegations. This may be especially felt by an unrepresented litigant. Such reticence may be fuelled in the mind of a litigant by the fact that in this Court there is no separately established appellate division. Appeals are heard and resolved by a Full Court constituted normally by three of the Judges of the Court. On occasions a Full Court may be constituted by five or even seven Judges. But such reticence, if felt, is misplaced. No reticence should be felt in responsibly advancing any submission.

108               Allegations of the kind sought to be advanced by the Appellant in the present appeals are not without precedent.

109               As a matter of legal history, instances may be provided of judges such as Lords Bacon and Macclesfield willingly accepting bribes and selling offices: Denning AT, “The Independence and Impartiality Of The Judges” (1954) 71 SALJ 345 at 352 to 355. The House of Lords in fact condemned Lord Bacon to pay a fine of ₤40,000 and to be imprisoned in the Tower of London during the King’s pleasure. See also: Bowen CD, Francis Bacon: The Temper of a Man (Little, Brown, 1963); Dodd A, The Martyrdom of Francis Bacon, Being a Close Inquiry into the Circumstances Surrounding his Fall From Grace as Lord Chancellor (Rider, 1946).

110               So strict was the law with respect to judges having absolutely no financial interest in any case that came before them, let alone accepting bribes, that in Dimes v Grand Junction Canal (1852) 3 HLC 759 (10 ER 301) a decree made by the Lord Chancellor was set aside when it was found that he had 92 shares in the Canal Company. In doing so, Lord Campbell observed:

Lord Campbell.—I take exactly the same view of this case as do my noble and learned friends, and I have very little to add to their observations. With respect to the point upon which the learned Judges were consulted, I must say that I entirely concur in the advice which they have given to your Lordships. No one can suppose that Lord Cottenham could be, in the remotest degree, influenced by the interest that he had in this concern; but, my Lords, it is of the last importance that the maxim that no man is to be a judge in his own cause should be held sacred. And that is not to be confined to a cause in which he is a party, but applies to a cause in which he has an interest. Since I have had the honour to be Chief Justice of the Court of Queen’s Bench, we have again and again set aside proceedings in inferior tribunals because an individual, who had an interest in a cause, took a part in the decision. And it will have a most salutary influence on these tribunals when it is known that this high Court of Last resort, in a case in which the Lord Chancellor of England had an interest, considered that his decree was on that account a decree not according to law, and was set aside. This will be a lesson to all inferior tribunals to take care not only that in their decrees they are not influenced by their personal interest, but to avoid the appearance of labouring under such an influence. It is quite clear, likewise, I believe, that the orders of the Vice-Chancellor cannot be in the slightest degree affected by what the Lord Chancellor has done, nor can it be maintained that the Vice-Chancellor was acting merely as the Lord Chancellor’s deputy when these orders and decrees were pronounced.

Dimes was said to be a “crazy attorney” and this case, it is further said, is what occasioned the death of the Lord Chancellor: Megarry RE, A Second Miscellany-at-Law at 13 (Stevens, 1973). 

111               Regrettably, allegations of judicial officers accepting bribes cannot be confined to the dustbin of history.

112               Such an allegation recently presented itself to the Court of Appeal of the Supreme Court of Victoria: Hoser v R [2003] VSCA 194. An allegation was there made of a magistrate having received a bribe. Reference may also be made to the allegations addressed in Martin v Trustrum (No 3) [2003] TasSC 80, 12 Tas R 131. Allegations have also been made that there has been appointment to this Court of “corrupt judges”: Bird v Hon Free, Minister for Schools, Vocational Education and Training, supra.

113               Notwithstanding such instances, the fact remains that the Australian judiciary justifiably deserves a reputation for independence and integrity.

114               In Australia, in those circumstances where there is a responsible basis upon which a litigant can advance a submission either at first instance or on appeal as to any form of judicial misconduct, such a submission should be fearlessly advanced and pursued. All such submissions will be equally as fearlessly and independently resolved.

115               Such a system of justice only serves to enhance the independence of the judiciary as a whole.

116               But where such allegations are irresponsibly advanced, an appellant can equally expect from this Court the swift condemnation that he deserves.

117               Unfounded allegations of judicial impropriety may only serve as a source of distress to the judicial officer concerned and the Court as a whole and serve as the basis for further ill-informed criticism of the judiciary. This Court is not — and should not be — free from criticism. But it has long been recognised that “unwarrantable attacks should not be made with impunity upon Judges …”: Bell v Stewart (1920) 28 CLR 419 at 429 (citing Sashi Bhushan Sarbadhicary (1906) 23 TLR at 182). Isaacs and Rich JJ there further observed that “a sufficient safeguard” against such attacks is to be found in “the good sense of the community”. In Gallagher v Durack (1983) 152 CLR 238 at 243 Gibbs CJ, Mason,Wilson and Brennan JJ likewise observed in the context of a contempt case:

The law endeavours to reconcile two principles, each of which is of cardinal importance, but which, in some circumstances, appear to come in conflict. One principle is that speech should be free, so that everyone has the right to comment in good faith on matters of public importance, including the administration of justice, even if the comment is outspoken, mistaken or wrong-headed. The other principle is that “it is necessary for the purpose of maintaining public confidence in the administration of law that there shall be some certain and immediate method of repressing imputations upon Courts of justice which, if continued, are likely to impair their authority”: per Dixon J. in R. v. Dunbabin; Ex parte Williams [(1935) 53 CLR 434 at 447]. The authority of the law rests on public confidence, and it is important to the stability of society that the confidence of the public should not be shaken by baseless attacks on the integrity or impartiality of courts or judges. However, in many cases, the good sense of the community will be a sufficient safeguard against the scandalous disparagement of a court or judge …

See also: Ex parte Attorney-General; Re Goodwin [1969] 2 NSWR 360 at 362 per Wallace P, Jacobs and Holmes JJA. When submissions are advanced on behalf of parties by Counsel or other legal representatives, the judgment of those involved is an added “safeguard” — not against criticism, but against “unwarrantable attacks”.

118               A further potential safeguard may, perhaps, be found in the role to be played by Attorneys-General. The nature of this role has been the subject of comment by a former Attorney-General and former Chief Justice of the South Australian Supreme Court: King LJ ‘The Attorney-General, Politics and the Judiciary” (2000) 74 ALJ 444. It is there noted that, while the judiciary is not immune from legitimate criticism by the media and individual citizens, this criticism has generally been restrained. This restraint derives from a recognition that it serves the interests of justice. Judges exposed to “trenchant criticism”, the author notes, “… may, at least subconsciously, tend to make decisions which will avoid public criticism, and decisions so motivated may be contrary to the justice of the case”: 74 ALJ at 455. The author goes on to note his own observation that the media’s treatment of the judiciary is no longer characterised by any such restraint. But attitudes of the media may change over time.

119               It is in this context that the potential role of the Attorney-General in defending the judiciary perhaps assumes continuing relevance. The Hon L J King AC, QC helpfully refers to the role of the Attorney-General in relation to “misplaced criticism of the judiciary”, some of that criticism being directed towards judicial decisions. He refers with approval to a paper delivered by Sir Anthony Mason in October 1997: Mason A, “No Place in a Modern Democratic Society for a Supine Judiciary: Former Chief Justice Attacks Attempts to Muzzle the Judges” (1997) 35 NSW Law Soc J 51. After referring to a difficulty experienced by the then Commonwealth Attorney-General in speaking out earlier in relation to a decision of the High Court of Australia, Sir Anthony Mason stated:

Granted the existence of the difficulty, it is nonetheless the responsibility of the first Law Officer, a responsibility of the first importance, to uphold the rule of law. It is a responsibility that should not be subordinated to party political considerations when the integrity of judicial institutions is under challenge.

Sir Anthony Mason continued:

No-one expects an Attorney to respond to every criticism of the judges. Indeed, he may have justification for voicing criticism himself. But an Attorney has a responsibility to uphold the rule of law as administered by an independent judiciary. That means that there will be occasions when he should respond to irresponsible criticisms which threaten to undermine public confidence in the judiciary … My belief is that nothing short of a defence by the Attorney will attract prominent media attention and counterbalance the adverse publicity.

See also: Carney G, “The Role of the Attorney-General” (1997) 9 Bond LR 1 at 7 to 9. In modern times in Australia not all Attorneys-General have conceived that they still have the same role as that described by both the Hon L J King AC, QC and Sir Anthony Mason: see the Hon D R Williams AM, QC “Who Speaks for the Courts?” in Courts in a Representative Democracy (Australian Institute of Judicial Administration, 1994) at 183 to 194. It is respectfully suggested that there is much to commend the view espoused by Sir Anthony Mason and others. Under our system of responsible government the political officer responsible for the administration of justice and the upholding of the rule of law remains the Attorney-General.

120               In the present appeals, any “good sense” on the part of the Appellant has regrettably not prevailed. Allegations have been made devoid of any factual or other foundation. “Good sense” did not prevail at the time the appeals were first filed in April 2009, at the time when they were subsequently amended in June 2009, or when the allegations were not abandoned in October 2009.

121               As the hearing progressed on 6 November 2009, a recurring theme emerged as to the manner in which the Appellant was alleging that the primary Judge had engaged in the misconduct alleged. The recurring theme was that the primary Judge knew personally Messrs John B Fairfax, Nicholas Fairfax and Mark Burrows. Included in the theme was the assertion that the primary Judge found in their favour and made an order for costs in their favour. The making of that costs order was said to be “financial fraud”. And the fact that the primary Judge did not refute the allegations being made against him was said to confirm the truth of those allegations.

122               An unrepresented litigant may in some circumstances be excused for employing language ill-suited to the facts. Nothing in the manner in which the present Appellant sought to support the allegations being made, however, justified or otherwise provided any basis for the language employed in the Amended Notices of Appeal.

123               It should be expressly stated that the allegations as to judicial misconduct as were made against the primary Judge are without any foundation. They should never have been raised. They were unsubstantiated by any of the facts and were irresponsibly advanced.

The Remaining Grounds of Appeal

124               The remaining Grounds of Appeal are equally without merit and should be dismissed.

125               The bases upon which it was said that the primary Judge should have disqualified himself were understood to be:

·                    the allegation as to judicial misconduct; 

·                    the asserted fact that he knew Messrs John B Fairfax, Nicholas Fairfax and Mark Burrows; and

·                    the fact that he had not refuted the allegations made against him by the Appellant.

The decision of the primary Judge not to disqualify himself was clearly correct. There is no substance in the judicial misconduct allegations and the remaining bases relied upon provide no basis for the primary Judge to have disqualified himself. 

126               Two of the Grounds of the Amended Notice of Appeal refer to “perjury” or “perjured affidavits”. The accusation of perjury was also repeatedly advanced by the Appellant before the primary Judge. If reference is made, by way of example, to the transcript of the hearing on 31 March 2009, the now Appellant during his submissions referred to Mr Kevin Stokes and claimed that “I don’t touch on all the perjury …”; he later referred to the evidence of Ms Yemee Fernandes and contended that “[i]t’s clear perjury by her”. Some evidence, it was contended by the now Appellant, “beggars belief”.

127               These Grounds are also to be dismissed. There is simply no basis upon which any conclusion could be reached that any of the evidence given before the primary Judge constituted “perjury”. Indeed, his Honour was at pains to try and explain the significance of the allegations being advanced by the now Appellant. On 31 March 2009 there was thus the following exchange:

HIS HONOUR: Can I just make this observation, Mr Dowling. You’ve said on a number of occasions during the course of this hearing, and in fact perhaps even before and you’ll say it again, that if a witness gives evidence that you can either show to be wrong or cast real doubt on, that that witness has committed perjury. Now, perjury involves consciously or knowingly giving false evidence. Human experience, and perhaps your experience as well, leads everyone to know that after a time one’s recollection of events in the past can sometimes be imperfect, and probably every day of the week people give evidence in the witness box in courts throughout Australia, and they give an account of events that may not turn out to be completely accurate and sometimes quite inaccurate.

It’s not because they’re perjuring themselves, it’s because their recollection is faulty, and in assessing evidence as a trial judge, what you endeavour to do is to look at the evidence and try and work out where the truth lies, and very often you have to make allowance for the fact that people’s recollections can be faulty.

MR DOWLING: Look, they can be faulty, without a doubt, and I’m no exception to that rule. My own memory can be faulty, but it’s one thing to be faulty and it’s one thing for something like Yemee Fernandes sitting in the witness stand and saying we were meeting every second day for two or three months. That just wasn’t true. That’s just clear, blatant perjury. It’s not supported by Kevin Stokes nor me. That’s not a faulty memory, your Honour. You know, you don’t mistakenly believe that you’re meeting with someone, the three of us, every second day, to discuss his performance and his conduct, when it’s just not true. You know, you can mistake, we might have met once or twice, if Yemee had said that, but when she’s saying we were meeting every second day since March until May.

The explanation being proffered by the primary Judge was rejected by the now Appellant. Irrespective of that exchange, however, the fact remains — there is no basis upon which any conclusion can be reached that any of the evidence constituted “perjury” (or any like characterisation) and no basis upon which any conclusion can be reached that there is an appellable error.

128               The Ground which seeks to contend that the primary Judge “tampered with and diluted discovery” is difficult to comprehend. At least one source of difficulty is that the Order for discovery as made discloses nothing on its face other than an order in like terms to orders frequently made in this Court. Although the Appellant contends that the Order should have been made at a far earlier point of time in the proceeding, there was no demonstrated prejudice to the Appellant by reason of the time at which it was made. And the fact that an order was made that discovery need not be verified by affidavit is also unexceptional. Order 15 r 2 of the Federal Court Rules provides as follows:

Unless the Court or a Judge orders otherwise, a party must give discovery by serving:

(a)        a list of documents required to be disclosed; and

(b)        an affidavit verifying the list.

The power to make an order that there need not be an affidavit verifying the list of documents cannot be denied. How the discretion as to the exercise of that power miscarried was not explained by the Appellant.

129               Another Ground of Appeal seeks to challenge the refusal of the primary Judge to grant leave to administer interrogatories. The administration of interrogatories requires the leave of this Court. Order 16 r 1(1) of the Federal Court Rules thus provides as follows:

The Court may, in its discretion, give leave to any party to file and serve upon any other party, within the period limited by the Court for this purpose, a notice requiring the party served to answer interrogatories relating to any matter in question between the interrogating party and the party served.

Whether or not the decision of the primary Judge to refuse leave to administer interrogatories should itself have been a decision expressly the subject of appeal, or whether it was sufficient for the Appellant to rely upon the contention as a Ground seeking relief in respect to the ultimate decision, may be left to one side. The fact is that the primary Judge did indeed refuse leave. His Honour explained his reasons for doing so as follows:

Insofar as Mr Dowling, in his notice of motion seeks a series of orders I now indicate what my conclusions are. I’m not satisfied that a case has been made out for the granting of leave to administer interrogatories.

It appears to me that the draft interrogatories are in form substantially defective and in many respects go to irrelevant issues but more importantly and fundamentally there is nothing in the material that indicates that the proposes [sic] interrogatories are intended to achieve any of the objectives identified by Lockhart J in his judgment in WA Pines v Bannerman and it appears to me, from what has been said, that they are no more than a fishing expedition which is not a basis upon which leave to administer interrogatories should be given.

It is difficult to do anything other than proceed upon the reasons as provided by the primary Judge. There was apparently a draft of the proposed interrogatories provided to the primary Judge — but that draft was not made available to this Court. In such circumstances it is difficult to conclude other than that there is no error discernible in those reasons for decision as have been provided for refusing leave pursuant to O 16 r 1(1).

130               A further purported Ground of Appeal seeks to impugn the final decision by reason of what is said to be a further wrongful refusal on the part of the primary Judge to grant leave to issue a number of subpoenas.  Again, the issue of a subpoena requires the leave of the Court: O 27 r 2(1). In refusing leave, the primary Judge stated:

As to the subpoenas sought to be issued both against the nine directors, that is the nine respondents, who haven’t sworn affidavits in the officers and directors proceedings and additionally, the subpoena sought to be issued against Mr Jhinku, the solicitor employed by Freehills, it has not been demonstrated by Mr Dowling that those subpoenas are sought for a legitimate forensic purpose.

Upon the basis of the reasons as provided, again no error is discernible in his Honour’s refusal of leave pursuant to O 27 r 2(1). The explanation provided by the Appellant to this Court as to why he sought subpoenas only reinforces the correctness of the decision of the primary Judge. Also not explained by the Appellant was why subpoenas were in any event necessary. Many of the persons in respect to whom subpoenas were sought to be issued attended the hearing at first instance. Those persons (at least) could have been called by the now Appellant to give evidence without any necessity for a subpoena. They were not persons who were called upon by the now Respondents to give evidence at first instance. The answer may well lie in the fact that such a course would not have permitted the now Appellant to cross-examine those persons. His professed purpose in seeking to question these people, as explained to this Court on appeal, was to “carve them up”. There remains, however, no basis for concluding that the primary Judge has committed appellable error in refusing leave to issue subpoenas.

131               The oral reasons provided by the primary Judge in respect to his interlocutory decision as to interrogatories and subpoenas were adequate to explain the basis upon which he proceeded. More elaborate reasons were not required. The submission of the Appellant that those reasons were but “stock standard” reasons or were otherwise inadequate is rejected. In rejecting the submission, it is recognised that there is a duty on a court at first instance from which an appeal lies to a higher court to provide reasons: Carlisle Homes Pty Ltd v Barrett Property Group Pty Ltd [2009] FCAFC 31 at [40] to [46]. But the extent of that duty varies depending upon the circumstances of the decisions being made and whether a decision is final or interlocutory. Although some interlocutory decisions may be made without providing reasons, others do require that reasons be provided and even the finality of the interlocutory decision in issue may require more extensive reasons: Apps v Pilet (1987) 11 NSWLR 350. In some circumstances extensive reasons may be required for interlocutory decisions: Australian Securities and Investments Commission v Rich [2004] NSWSC 970. The extent of the duty imposed upon a judge to provide reasons depends upon “the circumstances of the individual case”: Mifsud v Campbell (1991) 21 NSWLR 725 at 728 per Samuels JA (Clarke JA and Hope AJA agreeing). There is no requirement for such reasons as are provided in respect to the refusal of leave to administer interrogatories or to issue subpoenas to be recorded in a formal judgment of the Court. Reasons for such a decision may be provided orally during the course of a hearing and recorded in any transcript that is kept: cf Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 260 per Kirby P. Had those decisions been challenged during the course of the hearing, there was of course no right of appeal. The only right conferred was a right to seek leave to appeal. And where reasons are provided in respect to such decisions, they need only be sufficient to disclose to a Court on appeal the basis upon which the decision was made. There were no circumstances in the present proceedings which warranted more extensive reasons than those in fact provided, or that they be provided other than in the manner pursued by the primary Judge.

132               Insofar as the Amended Notices of Appeal seek to contend that there has been a failure on the part of the primary Judge to provide reasons in respect to the refusal of leave to administer interrogatories, or to issue subpoenas, the contention erroneously ignores the reasons that were in fact provided.

Costs

133               The Court’s general power to award costs is found in s 43 of the Federal Court of Australia Act 1976 (Cth) (in the form applicable to this appeal). That section is subject to a law “otherwise providing”. In this way, the position with respect to the awarding of costs is governed by s 824 of the Workplace Relations Act. That section provides:

824      Costs only where proceeding instituted vexatiously etc.

(1)        A party to a proceeding (including an appeal) in a matter arising under this Act (other than an application under section 663) must not be ordered to pay costs incurred by any other party to the proceeding unless the first-mentioned party instituted the proceeding vexatiously or without reasonable cause.

(2)        Despite subsection (1), if a court hearing a proceeding (including an appeal) in a matter arising under this Act (other than an application under section 663) is satisfied that a party to the proceeding has, by an unreasonable act or omission, caused another party to the proceeding to incur costs in connection with the proceeding, the court may order the first-mentioned party to pay some or all of those costs.

(3)        In subsections (1) and (2):

costs includes all legal and professional costs and disbursements and expenses of witnesses.

134               A threshold question is therefore whether the appeals are proceedings in a matter arising under the Workplace Relations Act. That question is to be answered by reference to the test stated by the High Court in Re McJannet; Ex parte Australia Workers’ Union of Employees (Qld) (No 2) (1997) 189 CLR 654 at 656 (“McJannet No 2”), namely “whether the right or the duty that is sought to be enforced owes its existence to a provision of the Act”. Sometimes the application of that test gives rise to difficult questions of characterisation, e.g. Australian Workers’ Union of Employees (Qld) v Etheridge Shire Council (2009) 178 FCR 252. In these appeals it does not.

135               In Construction, Mining, Forestry and Energy Union v Clarke (2008) 170 FCR 574 at [29] (“CFMEU v Clarke”) the Full Court, in elucidating the meaning of “an unreasonable act or omission” for the purposes of s 824(2) of the Workplace Relations Act and by reference to prior authority, observed, “there is a distinction between a party who pursues arguments which are ultimately abandoned or rejected by the court and a party who commences a proceeding which is misconceived in the sense of being incompetent or unsupportable”. The Full Court had earlier observed of s 824(2) of the Workplace Relations Act that it “carved out” another exception to the usual rule in s 824(1) that costs orders are not to be made: CFMEU v Clarke at [28].

136               On analysis therefore, whether there is power to award costs may involve the answering in succession of the following questions:

·                    Is the proceeding (including an appeal) a proceeding in a matter arising under the Workplace Relations Act? This question is to be answered by reference to the test enunciated in McJannet No 2. If it is not such a proceeding then there is power to award costs in the exercise of the general discretion conferred by s 43 of the Federal Court of Australia Act.

·                    If it is a proceeding in a matter arising under the Workplace Relations Act, the next question to be asked is whether the proceeding was, in terms of s 824(1), instituted vexatiously or without reasonable cause? If it was the general discretion to award costs arises.

·                    If the proceeding was not instituted vexatiously or without reasonable cause the next question to be asked is whether, in terms of s 824(2), the Court is satisfied that a party to the proceeding has, by an unreasonable act or omission, caused another party to the proceeding to incur costs in connection with the proceeding? If so, a discretion to award costs caused by the unreasonable act or omission arises.

137               As to the first of these questions, in one of the appeals the proceeding instituted by the Appellant in the original jurisdiction was for relief on the basis that his employment had been terminated by the respondent, Fairfax Media Publications Pty Ltd (“Fairfax Media”) in contravention of s 792(1)(a) of the Workplace Relations Act. In the other appeal the original jurisdiction proceeding was related in the sense that the various named respondents, who were directors or officers of Fairfax Media, were said to have been involved in that corporation’s alleged contravention and therefore liable pursuant to s 728 of that Act. In each case the rights which the Appellant sought to enforce owed their existence to a provision of the Workplace Relations Act. The appeals are but further proceedings in these matters. Therefore, there is no power to award costs in respect of the appeals unless one or the other of the exceptions for which s 824(1) and (2) of the Workplace Relations Act provide is applicable.

138               There is not and never was any basis for the Appellant to institute either of the appeals. The grounds are and always were truly and utterly baseless. In neither of the appeals nor in respect of any respondent has the Appellant ever had reasonable cause to institute an appeal in respect of the judgement below. This is not a case where the Appellant has done nothing more than advance a contentious but ultimately unsuccessful argument. That being so, the exception for which s 824(1) of the Workplace Relations Act provides is applicable. Because that exception is applicable it is unnecessary to consider whether the further exception for which s 824(2) provides is applicable.

139               How then should the discretionary power in respect of costs be exercised? There is no doubt that this power “must be exercised judicially, not arbitrarily or capriciously”: Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 3) (1979) 42 FLR 213 at 219. Equally, there is no doubt in this case that a discretion so exercised calls for costs to follow the event in each of the appeals.

140               The remaining question is whether the Appellant should be ordered to pay costs on other than a party and party basis. In Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 at 230 to 234 Sheppard J canvassed comprehensively the principles to be applied in deciding whether to award costs on an indemnity basis. In so doing, his Honour offered examples of the types of cases in which costs had been awarded on an indemnity basis. His Honour was astute to highlight that this offering was not exhaustive and that the categories of case in which costs might permissibly be awarded on an indemnity basis were not closed. One type of case in which a departure from the ordinary party and party basis for the awarding of costs has been regarded as appropriate is where the conduct of a party has been so unreasonable as to make it unjust that the other party should be limited in its recovery to party and party costs: Sony Computer Entertainment Australia Pty Ltd v Dannoun (No 2) [2001] FCA 1530 at [4] per Lindgren J. Appeals instituted without reasonable cause are of the same ilk. While it may be accepted that, merely because the exception in s 824(1) of the Workplace Relations Act is applicable, it does not follow axiomatically that costs must be awarded on an indemnity basis, here there are no redeeming features.

141               The Respondents should have their costs of and incidental to the appeals to be taxed on an indemnity basis.

142               For completeness, it should be noted that the definition of “costs” in s 824(3) of the Workplace Relations Act does not alter the usual bases upon which costs may be ordered to be taxed. This definition of “costs” was found in s 824 in its original form when, prior to renaming, amendment and renumbering, it was s 347(2) of the then titled Industrial Relations Act 1988 (Cth). The definition seems to have been inserted out of an abundance of caution and so as to foreclose any suggestion that the power to award costs in industrial cases, where that power existed at all, did not extend to the costs of legal and other professional disbursements.

143               Whether to allow legal representation either as of right, by leave or at all before various industrial forums, Commonwealth and State, and if so, whether to make any provision for the costs of such representation has proved an enduring source of controversy ever since the Conciliation and Arbitration Act 1904 (Cth)was originally enacted. Thus, reflecting a contrasting value judgment of an earlier time, in delineating the powers of the Commonwealth Court of Conciliation and Arbitration as first established the Parliament provided, by s 38(i), that the Court had power, “to order any party to the [industrial] dispute to pay to any other party such costs and expenses, including the expenses of witnesses, as are specified in the order, but so that no costs shall be allowed for the services of any counsel solicitor or agent”. Once this heritage in respect of the allowance of legal costs in industrial matters is recalled the presence of the definition of “costs” is better explained as referable to an abundance of caution than by some desire to provide for the awarding of costs on a basis unique to Federal industrial controversies.

144               As to costs below, the learned trial Judge canvassed, by reference to pertinent authority, how costs should be dealt with in the proceedings in the original jurisdiction. There is no basis in either appeal for disturbing the costs orders made below.

Conclusions

145               The appeals should first and foremost be dismissed because the Grounds of Appeal are without merit. They should also be dismissed upon a separate and additional basis pursuant to s 25(2B) of the Federal Court Act.

146               An assertion on the part of the Appellant at the conclusion of the hearing of the appeal on 6 November 2009 that he had not had an adequate opportunity in which to present his submissions is rejected. Apart from the time taken at the outset of the hearing on 6 November 2009 to make an application to vary the Orders made on 23 October 2009 and to make an application that one of the Judges who constitute this Full Court disqualify himself, the Appellant had the entirety of the remainder of the day in which to present his arguments. The hearing concluded just before 5:00 pm on that day. Counsel on behalf of the Respondents had less than half an hour in which to present her submissions. Many of the Appellant’s submissions were repetitive.

147               Costs should be paid on an indemnity basis.

Associate:

Dated:         16 March 2010