FEDERAL COURT OF AUSTRALIA

Chen v Monash University [2016] FCAFC 66

ORDERS

THE COURT ORDERS THAT:

1.    The amended interlocutory application filed 26 June 2015 is dismissed.

2.    The applicant is to pay the respondents’ costs.

3.    The respondents be at liberty to apply for a lump sum costs order within 14 days of the date of these orders and for orders in respect of the monies paid by way of security.

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

REASONS FOR JUDGMENT

THE COURT:

1    This is an application by Dr Qizhi Chen (the applicant) seeking reinstatement of proceedings number VID 122 of 2015 (the Appeal Proceedings) which she discontinued on 6 April 2015. Those proceedings were an appeal from the orders and judgment of the primary judge (Tracey J) in proceedings VID 857 of 2013 (the First Instance Proceedings) on 27 February 2015 that the applicant’s application be dismissed with costs: Chen v Monash University [2015] FCA 130 (Chen v Monash).

2    The First Instance Proceedings concerned some 53 claims of sex discrimination and sexual harassment made by the applicant against Monash University and two of its academic staff, Professor Chris Davies and Professor George Simon (the respondents). The applicant alleged that the respondents’ conduct contravened the Sex Discrimination Act 1984 (Cth) (the SD Act) and sought declarations and other relief including monetary relief.

3    The respondents oppose Dr Chen’s application for reinstatement of the Appeal Proceedings. The issue before this Court is whether the Appeal Proceedings should be reinstated.

THE POWER TO REINSTATE

4    Rule 36.73 of the Federal Court Rules 2011 (Cth) (the 2011 Rules) deals with discontinuance of appeals. Subrule (1) provides that an appellant may, without the Court’s leave, discontinue an appeal by filing a notice of discontinuance in accordance with the prescribed form, at any time before the hearing of the appeal. Subrule (2) provides that a notice of discontinuance “has the effect of an order of the Court dismissing the appellant’s appeal”. Subrule (4) provides that an appellant who files a notice under subr (1) discontinuing an appeal must, unless the parties otherwise agree, pay the costs of each respondent.

5    Unlike r 39.05, which gives the Court a limited power to vary or set aside an order or judgment after it has been entered, r 36.73 does not empower the Court, on a limited basis or otherwise, to vary or set aside a notice of discontinuance which has been filed before the hearing of an appeal, and so reinstate an appeal which has been discontinued.

6    While r 39.04 empowers the Court to vary or set aside a judgment or order before it is entered, without apparent limitation, r 39.05 provides that the Court may vary or set aside a judgment or order after it has been entered only if:

(a)    it was made in the absence of a party; or

(b)    it was obtained by fraud; or

(c)    it is interlocutory; or

(d)    it is an injunction or for the appointment of a receiver; or

(e)    it does not reflect the intention of the Court; or

(f)    the party in whose favour it was made consents; or

(g)    there is a clerical mistake in a judgment or order; or

(h)    there is an error arising in a judgment or order from an accidental slip or omission.

7    Rule 39.05 reflects a general principle that, with limited exceptions, an entered, or “perfected”, judgment or order is final.

8    In Bailey v Marinoff (1971) 125 CLR 529 at 530-531; [1971] HCA 49 (Bailey), Barwick CJ (who generally agreed with the separate reasons of Menzies J and Walsh J, but added remarks of his own) said that:

Once an order disposing of a proceeding has been perfected by being drawn up as the record of a court, that proceeding apart from any specific and relevant statutory provision is at an end in that court and is in its substance, in my opinion, beyond recall by that court. It would, in my opinion, not promote the due administration of the law or the promotion of justice for a court to have a power to reinstate a proceeding of which it has finally disposed. In my opinion, none of the decided cases lend support to the view that the Supreme Court in this case had any inherent power or jurisdiction to make the order it did make, its earlier order dismissing the appeal having been perfected by the processes of the Court. I would add that, however hard the case might seem for the would be appellant the loss of its right of appeal derived from its own conduct or from that of persons for whom it must take responsibility. …

9    If that principle were to be applied to the applicant’s application to reinstate the Appeal Proceedings, the effect of the filing of the notice of discontinuance - dismissal of the proceeding - would be beyond recall, apart from any specific and relevant statutory provision.

10    In Bailey, judgment was entered as a result of the appellant’s non-compliance with an order of the Court of Appeal of the Supreme Court of New South Wales which required appeal books to be filed and served by a certain date, failing which “the appeal was to stand dismissed for want of prosecution”. When the appellant failed to comply with that order, on the face of it, the appeal stood dismissed. However, the Court of Appeal, in effect, made an order relieving against that consequence and reinstated the appeal.

11    In doing so, the Court of Appeal, as Walsh J explained at 534 of his judgment in Bailey, did so on the basis, in “such a case” as that before the Court, of the existence of a doctrine recognising “the court’s inherent jurisdiction to intervene in order that justice may be done”. The reference to “such a case” was explained to be a case where an appellant had applied itself with due diligence to the satisfaction of a condition.

12    For Walsh J, at 534, the question was not whether the Court of Appeal ought to have “a reserve power” which would enable it “to intervene in order that justice may be done” but whether the Court had an “inherent power” to deal further with an appeal which by its formal order had already been dismissed. Ultimately, his Honour considered, at 537, that Goodwin v Southern Tablelands Finance Co Pty Ltd (1968) 42 ALJR 309 had to be regarded as direct authority for the proposition that there is no inherent power to vary an order by which an appeal stands dismissed in a case in which the order was formally drawn up and entered before any application to vary it was made.

13    Menzies J, at 531, considered the appeal before the Court was not concerned with the power of a court to alter orders in pending litigation, but with the power of a court to make an order in litigation which, “without any error or lack of jurisdiction”, has been regularly concluded. His Honour added, at 531-532, that however wide the inherent jurisdiction of a court may be to vary orders which have been made, it cannot extend to the making of orders in litigation that has been brought regularly to an end.

14    Gibbs J dissented on the basis that the Court of Appeal had an “inherent power” to vary a conditional order to dismiss an appeal after the time for compliance with a condition had expired: at 544-545.

15    The finality principle as articulated in Bailey was referred to expressly by the plurality in DJL v The Central Authority (2000) 201 CLR 226; [2000] HCA 17 (DJL) at [38] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ). The general principle was also applied in a criminal law context by the plurality in Burrell v The Queen (2008) 238 CLR 218; [2008] HCA 34 (Burrell) at [29] (Gummow ACJ, Hayne, Heydon, Crennan and Kiefel JJ).

16    In DJL, the plurality found that the Full Court of the Family Court of Australia did not have power to reopen final orders after their entry. In the course of their judgment, the plurality emphasised that the Family Court, established by the Family Law Act 1975 (Cth) (the Family Law Act) and vested with statutory jurisdiction and powers, was not a common law court as were the three common law courts at Westminster, and so was unable to draw upon “the well of undefined powers” that were available to those courts as part of their “inherent jurisdiction”: at [25]. Rather, the Family Court was a statutory court, being a federal court created under the Constitution, which exercises jurisdiction and powers conferred by statute either expressly or by implication. It also has such powers as are “incidental and necessary” to the exercise of the jurisdiction and powers conferred. Thus, it would be inaccurate to use the term “inherent jurisdiction” and the term should be avoided as an identification of the incidental and necessary power of a statutory court. Their Honours added, at [26], that the distinction between “inherent jurisdiction” or “inherent power” and jurisdiction or power derived by implication from statutory provisions conferring a particular jurisdiction is not always made explicit but is fundamental.

17    The fact that the Family Court was, under the Family Law Act, “a superior court of record” made no difference to that view: at [29]-[31]. The plurality, at [39], said that in considering what is involved in the establishment of a statutory court as a superior court with appellate jurisdiction as well as original jurisdiction, as in the case of the Family Court, it was important to bear in mind that the position respecting the revision of orders of the superior courts of record at Westminster “can supply only a limited analogy”.

18    At [45], the plurality concluded that the Family Law Act in its text and structure provided no express conferral of the power sought to be exercised, to reopen a judgment entered; there was no inherent power by reason of the description of it as a “superior court of record” in the Family Law Act; and no such power could be derived by necessary implication from the statutory structure.

19    Kirby J in a separate judgment, at [106], considered, to the same effect as Gibbs J in Bailey, that the Family Court was possessed of an implied power “to repair accidental mistakes and oversights”, but that it was confined to “exceptional cases” where if the mistake were left unrepaired it would cause “serious injustice”. He said the applicant “bears a heavy burden to persuade a court that he or she did not occasion the mistake and has moved for relief with relevant expedition”.

20    In Burrell, where the High Court determined that the Court of Criminal Appeal of the Supreme Court of New South Wales had no power to reopen an appeal once judgment had been delivered and orders reflecting judgment had been formally entered, the plurality at [14]-[20] again emphasised the significance of a judgment or order having been “perfected”. The plurality confirmed, at [15], the principle of finality of litigation and that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances.

21    Their Honours said that that tenet finds reflection in rules concerning the bringing of an action to set aside a final judgment on the ground that it was procured by fraud and in doctrines of res judicata and issue estoppel. Their Honours added that the principal qualification to the general principle of finality is provided by the appellate system. But they added that, in courts other than the court of final resort, the tenet also finds reflection in the restrictions upon reopening of final orders after they have been formally recorded.

22    The Federal Court of Australia, as a federal court created under the Constitution, is in a very similar circumstance to that of the Family Court as discussed in DJL. Its rules, set out above, concerning the variation or setting aside of judgments and orders before and after they have been entered, also reflect the general principles described in DJL and Burrell.

23    Given that a notice of discontinuance when filed has the effect of an order dismissing the appeal, a question may be considered to arise whether those paragraphs of r 39.05 that are capable of applying in the case of a dismissal, apply either directly or by implication in the case of an application to reinstate a discontinued appeal; or there is any other provision of the Federal Court of Australia Act 1976 (Cth) (FCA Act) or the 2011 Rules that provides a reinstatement power; or the Court has an “inherent power” to order reinstatement; or there is simply no power to reinstate a discontinued appeal.

24    This question has been raised but rarely. In Christodoulou v Disney Enterprises Inc and Others (2006) 156 FCR 369; [2006] FCAFC 183 (Christodoulou) at [25] and [28], a Full Court (Mansfield, North and Besanko JJ) considered that the Court is possessed of an “inherent jurisdiction” to reinstate an appeal which has been discontinued, at least where the notice of discontinuance can be shown to be a “nullity” because of fraud or mistake. The application to reinstate the appeal in that case was ultimately refused on the basis that the appeal had no prospect of success.

25    In this case, the applicant contends the Court has the express statutory power to reinstate her appeal under s 23 and/or s 28 of the FCA Act; or under r 1.32 of the 2011 Rules; and that it may do so by reference to the broad touchstone of “the interests of justice”. By her submissions in this regard, we take the applicant to contend she does not need to establish any of the specific grounds for varying or setting aside a judgment following entry mentioned by r 39.05, or fraud or mistake in the filing of the notice of discontinuance, in order to enliven the Court’s power to reinstate her appeal.

26    We will consider each of these alternatives. First, we will consider whether r 39.05 of the 2011 Rules is applicable. We will then consider whether s 28 of the FCA Act has any application. We will then consider whether s 23 of the FCA Act is the source of the power to reinstate or, on the other hand, there is an implied power to do so under the FCA Act. Finally, we will have regard to r 1.32 of the 2011 Rules.

27    We are not persuaded that r 39.05 of the 2011 Rules is applicable in the case of an application to reinstate an appeal following the filing of a notice of discontinuance. First, r 39.05 does not purport to apply to an application for reinstatement of an appeal. It empowers only the variation or setting aside of a judgment or order after it has been entered. Secondly, the circumstances set out in r 39.05, apart from subr (b), would not appear to be relevant to consideration of an application to reinstate an appeal following discontinuance. Only subr (b) - that the filing of the notice of discontinuance was obtained by fraud - could possibly be relevant. In the result, we do not consider r 39.05 can be the source of a power to reinstate an appeal, either by its express terms or proper construction or necessary intendment.

28    Section 28 of the FCA Act provides as follows:

(1)    Subject to any other Act, the Court may, in the exercise of its appellate jurisdiction:

(a)    affirm, reverse or vary the judgment appealed from;

(b)    give such judgment, or make such order, as, in all the circumstances, it thinks fit, or refuse to make an order;

(c)    set aside the judgment appealed from, in whole or in part, and remit the proceeding to the court from which the appeal was brought for further hearing and determination, subject to such directions as the Court thinks fit;

(d)    set aside a verdict or finding of a jury, and enter judgment notwithstanding any such verdict or finding;

(f)    grant a new trial in any case in which there has been a trial, either with or without a jury, on any ground upon which it is appropriate to grant a new trial; or

(g)    award execution from the Court or, in the case of an appeal from another court, award execution from the Court or remit the cause to that other court, or to a court from which a previous appeal was brought, for the execution of the judgment of the Court.

(2)    It is the duty of a court to which a cause is remitted in accordance with paragraph (g) of subsection (1) to execute the judgment of the Court in the same manner as if it were its own judgment.

(3)    The powers specified in subsection (1) may be exercised by the Court notwithstanding that the notice of appeal asks that part only of the decision may be reversed or varied, and may be exercised in favour of all or any of the respondents or parties, including respondents or parties who have not appealed from or complained of the decision.

(4)    An interlocutory judgment or order from which there has been no appeal does not operate to prevent the Court, upon hearing an appeal, from giving such decision upon the appeal as is just.

29    On its face, s 28 is about the exercise of appellate power, not a discontinued proceeding, and has no application in relation to an appeal that has been discontinued.

30    Section 23 of the FCA Act has been relied on to support a variety of orders of this Court. It provides as follows:

The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate.

31    It must be noticed immediately, however, that the Court’s power to make such orders is expressly conferred “in relation to matters in which it has jurisdiction”. Section 23 is about power, not jurisdiction.

32    In Patrick Stevedores Operations No 2 Proprietary Limited and Others v Maritime Union of Australia and Others (1998) 195 CLR 1 at 80-81; [1998] HCA 30 (Patrick), the plurality (Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ) referred, with approval, to what Deane J had noted in Jackson v Sterling Industries Limited (1987) 162 CLR 612 at 622; [1987] HCA 23 (Jackson) of s 23 that:

Wide though that power is, it is subject to both jurisdictional and other limits. It exists only ‘in relation to matters’ in respect of which jurisdiction has been conferred upon the Federal Court. Even in relation to such matters, the power is restricted to the making of the ‘kinds’ of orders, whether final or interlocutory, which are capable of properly being seen as ‘appropriate’ to be made by the Federal Court in the exercise of its jurisdiction.

33    The plurality further favourably referred to what Deane J said in Jackson at 623, that a power to prevent the abuse or frustration of a court’s process should be accepted “as an established part of the armoury of a court of law and equity” and that “the power to grant such relief in relation to a matter in which the Federal Court has jurisdiction is comprehended by the express grant to that Court by s 23”.

34    In Australian Broadcasting Corporation v Lenah Game Meats Pty Limited (2001) 208 CLR 199; [2001] HCA 63 at [94], Gummow and Hayne JJ, in the course of a discussion concerning the grant of “anti-suit injunctions”, said that the order in question in that case could be supported “as an exercise of the power of the court to protect the integrity of its processes once set in motion”. In making that statement, their Honours referred to CSR Limited v Cigna Insurance Australia Limited and Others (1997) 189 CLR 345 at 391-392; [1997] HCA 33 (Cigna), as well as to the joint judgments in Patrick at [35] and Cardile and Others v LED Builders Pty Limited (1999) 198 CLR 380; [1999] HCA 18 at [41].

35    In Cigna, at 391, the plurality (Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ) observed that the counterpart of the Court’s power to prevent its processes being abused is its power to protect the integrity of those processes once set in motion. In making that statement their Honours primarily referred to Jackson at 619, 621 and 639.

36    Consistent with the observations in these authorities concerning the Court’s power to prevent its processes being abused and its power to protect the integrity of those processes once set in motion, and the relationship of those powers to s 23 of the FCA Act, in Westsub Discounts Pty Ltd v Idaps Australia Limited (No 2) (1990) 94 ALR 310 (Westsub Discounts), Woodward J, at an earlier time, recognising that this Court is a creature of statute, held that the Court had the power to amend a costs order in a proceeding, following the entry of judgment. At the time, O 35, r 7 of the Federal Court Rules 1979 (Cth) (the 1979 Rules) enabled the Court to vary or set aside a judgment or order before it was entered; or, otherwise than in its appellate jurisdiction, in the limited circumstances set out, after it had been entered; or where there had been a clerical mistake, an error, or accidental slip or omission. Subrule (4) of O 35, r 7 provided that subr (2), which in certain circumstances permitted the Court to set aside an order or judgment after entry, did not affect the power of the Court to vary or terminate the operation of an order by a supplementary order. It was on that subrule that Woodward J relied, in the circumstances of that case, as the source of the power to make an order amending the costs order following its entry. (On the application of that old rule, however, his Honour’s decision has not subsequently been followed: see Caboolture Park Shopping Centre Pty Ltd (In liquidation) v White Industries (Qld) Pty Ltd (1993) 45 FCR 224 at 235; [1993] FCA 667; McDermott v Richmond Sales Pty Ltd (In Liq) [2006] FCA 248 at [23]).

37    His Honour considered, at [11], that s 23 of the FCA Act, in giving the Court “power, in relation to matters in which it has jurisdiction, to make orders of such kinds … as the Court thinks appropriate”, by implication, gave the Court the same powers possessed of a common law court to prevent misuse of its procedures in a way which, although not inconsistent with the literal application of its procedural rules, would nonetheless be manifestly unfair to a party to litigation before it or would otherwise bring the administration of justice into disrepute among right thinking people.

38    His Honour considered that the implication of a power to this end would enable the Court to amend an order for costs after judgment had been entered in a proceeding, to address an issue which, through inadvertence, had not been raised at the time of pronouncement of the Court’s orders. In effect, his Honour considered that adding to or varying an order that was truly supplemental to the entered orders, as distinct from the judgment itself, did not offend the principle that a judgment or order made is final.

39    In Yevad Products Pty Ltd v Brookfield and Another (2005) 147 FCR 282; [2005] FCAFC 263, the Full Court (Nicholson, Finkelstein and Jacobson JJ) held that O 35, r 7(1) of the 1979 Rules applied, in that case, to empower the Court to vary or set aside orders where the application to reopen the orders in question had been made before the orders were sealed. In the course of its reasons, the Court, at [26], noted (seemingly with approval) that in BHP Steel (AIS) Pty Ltd v Construction, Forestry, Mining & Energy Union [2001] FCA 336, Kiefel J referred to the Court’s power to reconsider an apparently final costs order, either under O 35, r 7(2)(f) of the 1979 Rules (with the consent of the parties), or, alternatively, under the implied power to correct the misuse of its processes. Her Honour plainly considered this implied power arose under s 23 of the FCA Act, referring as she did to Westsub Discounts.

40    The power of the Court to prevent any abuse or frustration of or interference with its processes may, having regard to these authorities, either be seen as an implied power of the Federal Court that exists quite independently of s 23, but amplified by s 23; or an implied power derived from s 23.

41    We consider that under such an implied power, or pursuant to s 23, this Court may, in an appropriate circumstance, reinstate a discontinued appeal in order to prevent an abuse of process of the Court or to protect the integrity of those processes.

42    It follows that we do not consider that the Court is possessed of an implied or express power simply to reinstate a discontinued appeal in “the interests of justice”.

43    The Court in Christodoulou appears to have come to a similar conclusion so far as the existence of an implied power to reinstate an appeal is concerned. While inexactly referring to the Court’s jurisdiction as an “inherent” one, and while referring to English precedent drawn from common law courts, the Court nonetheless considered that an implied power, as we would understand it, exists to reinstate an appeal.

44    In other respects, however, we do not think that it assists to ask, as it was in Christodoulou, whether the filing of the notice of discontinuance in a given case was a “nullity” by reference to decisions of English courts expounding on the inherent jurisdiction of English common law courts. We do, however, consider that some guidance may be drawn from those English decisions so far as the making out of abuse of process is concerned, as explained below.

45    We should add that we do not consider that a number of first instance decisions of this Court, referred to in Christodoulou, take the question any further, each mostly accepting for the purposes of argument that there exists a power to reinstate an appeal that may or may not permit consideration of “the interests of justice”.

46    While it is neither appropriate nor necessary to list or attempt to enumerate the circumstances in which this implied power to relieve against an abuse of process will be enlivened in the case of a discontinuance of an appeal, at an appellant’s instance, we consider it will only arise where the appellant who filed the notice of discontinuance did not do so as a deliberate and informed act, as, for example, if the notice were filed as a result of fraud in which the appellant was not complicit.

47    In those circumstances, we do not consider it is helpful to say that the Court has a general power to reinstate an appeal “in the interests of justice”, which may be taken to suggest that a range of reasons going beyond those concerned with correcting an abuse of process might be agitated following the discontinuance of an appeal in order to reinstate it. Thus, it might be thought that notwithstanding the deliberate and informed decision of a party to discontinue an appeal, the appeal might be reinstated for some other reason. In our view, that would be inconsistent with the principle of finality which otherwise governs the setting aside process of dismissing an appeal.

48    We also consider that the power to reinstate an appeal is discretionary in nature so that, when enlivened, the prospects of success of the proposed appeal may also be taken into account in its final exercise, as held in Christodoulou.

49    Finally, we should deal with r 1.32 of the 2011 Rules, which provides that:

The Court may make any order that the Court considers appropriate in the interests of justice.

50    While apparently broad in scope, this rule must be understood as one arising under the FCA Act to facilitate the exercise of powers bestowed on the Court and is not itself the source of a jurisdiction going beyond the confines of jurisdiction expressly or impliedly conferred on the Court. If the Court does not have the jurisdiction or power to set aside a notice of discontinuance under the FCA Act, r 1.32 does not and cannot supply the jurisdiction to do so. In this, r 1.32 in many ways reflects the content of s 23.

51    The applicant also relies, in this regard, on the judgment in Mattner v Director of Public Prosecutions (Cth) (2011) 252 FLR 239; [2011] SASC 89 (Mattner) at [29] where Kelly J said:

I do not consider that I need to resolve that question here as I consider it appropriate to proceed on the basis that I can make the order sought if it is necessary to do so in the interests of justice under the second limb of r 117(1).

52    Mattner concerned an application to withdraw a notice of discontinuance in relation to an appeal to the Supreme Court of South Australia against a conviction in the Magistrate’s Court of South Australia. Kelly J found that the Court’s power to entertain the application was to be found in r 117 of the Supreme Court Rules Civil 2006 (SA) which, at subr (1), permitted the Court to make any order it considered necessary for the proper conduct of a proceeding or otherwise in the interests of justice. On that basis, Kelly J considered whether it was in the interests of justice to make the order sought and found that it was. The question referred to by Kelly J, at [29], which she found she did not need to resolve, was the proposition that it could be argued that, even if a notice of discontinuance brings a proceeding to an end, its withdrawal is the first step in the revived appellate proceedings.

53    Mattner can be distinguished from the present case given the interpretation and application of r 117(1) on which Kelly J relied in considering the matter. This Court is not conferred with power to entertain the present application by a rule similar to that considered in Mattner or any rule of Court. As noted above, r 1.32 of the 2011 Rules identified by the applicant does not give the Court such a power. Further, the rules considered in Mattner do not appear to have included a rule to the effect of r 36.73(2) of the 2011 Rules.

54    In this case, as discussed further below, we do not consider that the applicant has demonstrated that she discontinued the Appeal Proceedings otherwise than by a deliberate and informed decision on her part. Certainly, no abuse of the Court’s process is identified. The power to prevent an abuse of the Court’s process is not enlivened. Further, and in any event, we consider that, had the power to reinstate been enlivened, the prospects of success of the proposed appeal are so low that it would not be appropriate to exercise the power in the applicant’s favour.

55    Finally, in the event that r 39.05, by reference to part (b), should be considered applicable in this case, we are of the view that the applicant has not established that the filing of the notice of discontinuance of the appeal in this case was obtained by fraud, broadly understood, and so there would be no basis to order reinstatement of the Appeal Proceedings under that rule.

EVENTS LEADING UP TO THE FILING OF THE APPLICATION TO REINSTATE

56    On 27 February 2015 the primary judge made orders and gave judgment in Chen v Monash. The primary judge dismissed the applicant’s claims and awarded costs to the respondents.

57    On 18 March 2015 the applicant commenced the Appeal Proceedings. On that day the respondents also filed an interlocutory application seeking that the costs awarded to the respondents in Chen v Monash be paid on an indemnity basis and in a fixed amount (the Costs Application).

58    On 19 March 2015 the applicant filed and served a supplementary notice of appeal in the Appeal Proceedings.

59    On 27 March 2015 the respondents filed and served submissions in support of the Costs Application.

60    On 30 March 2015 the Appeal Proceedings were listed before Pagone J for directions. Pagone J ordered that the applicant have leave to file an amended notice of appeal on or before 7 April 2015 and that the applicant’s stay application dated 19 March 2015 be adjourned to a date to be fixed after determination of the Costs Application.

61    On 31 March 2015 the applicant made an application, by letter addressed to the Court, that Pagone J recuse himself from sitting in the Appeal Proceedings.

62    On 2 April 2015, in anticipation of seeking an order for security for costs of the Appeal Proceedings, the respondents’ solicitors wrote to the applicant about the costs of those proceedings noting that if the applicant was unsuccessful she would not be able to pay the respondents’ costs and, even if that were not so, it would be unlikely that the respondents would be able to enforce any costs order in their favour given the likelihood that the applicant would leave Australia after the Appeal Proceedings concluded. The respondents set out the reasons why they were of that opinion which included that the applicant was unable to retain lawyers to conduct the trial.

63    On 7 April 2015 the applicant filed and served an amended notice of appeal.

64    On 9 April 2015:

(1)    the Appeal Proceedings were listed for a directions hearing before Pagone J at which he gave judgment in relation to the applicant’s application that he recuse himself and ordered that the request for recusal be rejected. At the directions hearing, the respondents undertook not to enforce any costs order made in Chen v Monash prior to completion of the August 2015 sittings of the Full Court of this Court, during which it was anticipated the Appeal Proceedings would be listed for hearing, and also foreshadowed that an application for security for costs would be made; and

(2)    the applicant filed and served submissions in relation to the Costs Application.

65    On 16 April 2015:

(1)    the applicant filed a notice of discontinuance of the Appeal Proceedings which included (as written):

Ms Qizhi Chen, the appellant discontinues the proceeding VID122/2015: Appeal from the Judgment, due to the facts that she is unable to retain a lawyer to represent her in the appeal proceedings, and that the success rate of an appeal application would be very low without any legal aid.

(2)    Ms Vicki Libbesson, the Court’s appeals coordinator, wrote to the applicant by email in the following terms:

I refer to the notice of discontinuance (attached) which has been eLodged in this matter. I note that the form you filed has some differences to the template form (also attached), including that a note about the costs implications of discontinuing an appeal is missing.

Please be advised that:

1.    Rule 36.73 provides for the Discontinuance of an Appeal and the consequences of the discontinuance.

2.    In the absence of the agreement of the respondent regarding costs pursuant to rule 36.73(4), you should be aware that the appellant must pay the costs of the respondent.

3.    Whilst your Notice of Discontinuance is in the correct Form 126, it omits the prescribed parts in relation to costs.

4.    For the sake of completeness, you should file an amended Notice of Discontinuance within 48 hours, whether by consent of the respondent or not, that includes the note as to costs.

5.    However, if you do not wish to file an amended Notice of Discontinuance, you should be aware that rule 36.73(4) will operate in any event.

(emphasis in original)

66    On 17 April 2015 Ms Libbesson sent an email to the applicant and Ms Mercuri, the solicitor for the respondents, in which she reminded the parties of the need to forward the completed status report for the Appeal Proceedings by 4 pm on Tuesday, 21 April 2015. On 20 April 2015 at 2.25 am, the applicant responded to Ms Libbesson by email in which she wrote: “I’m unsure we still need to fill this, after I have discontinued the appeal from the judgment”. On 20 April 2015 at 9.36 am Ms Libbesson responded by email to the applicant and the respondents’ solicitors in the following terms:

Apologies for the oversight – as this matter has been finalised there is no need to complete the status report.

I am sorry for any inconvenience.

67    On 20 April 2015 at 2.23 am the applicant also sent the respondents’ solicitors an email attaching a document titled “Appellant proposed minutes of order”. In the covering email the applicant wrote:

Since I have disconnected the appeal from the judgment, I propose minutes of order for the appeal of payable costs order. I shall make a decision about the discontinuance of appeal from the costs order after the payable order is issued.

The attached document included proposed orders relating to the listing and preparation of an appeal “after the cost order of VID 857/2013 is issued”.

68    Later on 20 April 2015 the solicitors for the respondents sent an email to the applicant, replying to the applicant’s email referred to in the preceding paragraph, which included the following:

…As noted in the attached correspondence from Ms Libbesson, your appeal has been finalised and is now at an end. We therefore do not consent to your proposed orders.

69    On 28 April 2015:

(1)    the respondents’ solicitors sent a further email in response to the applicant’s email attaching the “Appellant’s proposed minutes of order” dated 20 April 2015 in which they noted that the applicant had discontinued the Appeal Proceedings and “as such the matter is complete and the orders sought by you cannot be made”; and

(2)    the applicant replied to the respondents’ solicitors’ email, copying the associate to Pagone J, stating that:

It is clear that:

the application of VID122/2015 is: Appeal from the costs order and the judgment (see the three versions of my Notice of Appeal).

the discontinuance of VID122/2015 is: Appeal from the judgment.

As such, I seek for the orders.

70    On 30 April 2015 the respondents’ solicitors sent an email to the applicant once again stating that the applicant had discontinued the Appeal Proceedings and thus the matter was complete and the orders sought in the “Appellant’s proposed minutes of order” could not be made by the Court. The respondents’ solicitors noted that position had been confirmed by Ms Libbesson and reiterated that the entire appeal was complete and the Court’s file closed. They confirmed that the effect of the applicant filing the notice of discontinuance was that their clients were entitled to costs of the appeal in relation to which they would write to the applicant shortly. The applicant responded to that email on the same date in the following terms:

If you accepted the finalizing VID122/2015 without further costs, taxation, bill proceedings from Ms Libbesson’s email, you have properly waived any right of cost. ‘VID122/2015 is finalized’ means no any further proceedings regarding it.

71    On 14 May 2015 the respondents’ solicitors sent a letter to the applicant seeking the respondents’ costs of the Appeal Proceedings. The applicant responded by letter of the same date in which she wrote:

1.    I refer to your letter dated 14 May 2015.

2.    According to Rule 36.73, the discontinuance has the effect of an order of Court dismissing the Appeal only, does not have the effect of any costs order.

3.    I refer to the email of Ms Vicki Libbesson dated 20-April-2015, ‘as this matter has been finalised there is no need to complete the status reports’. By throwing away the status reports filled with the cost issue by me, the Court effectively finalised the Appeal without costs order.

4.    I refer to Ms Mercury’s email dated 20-April-2015, ‘your appeal has been finalised and is now at an end.’ As such you have effectively consent that the Appeal be dismissed without costs order.

5.    Rule 40.01 is under the circumstance ‘where an order is made for the payment of costs’. For costs to be payable, an order of the court must be made during or at the end of court proceeding (see http://www.judcom.nsw.gov.au/publications/benchbks/civil/costs.html.) There was no such an order during or at the end of VID122/2015, which was ‘at an end’ on 20 April 2015.

6.    I will not enter into further correspondence in relation to this issue.

(emphasis in original)

72    On 27 May 2015 the respondents’ solicitors sent a letter by email to the applicant responding to her letter of 14 May 2015 in relation to the issue of costs of the Appeal Proceedings. In that letter, among other things, the respondents’ solicitors sought payment of those costs within 14 days of the date of the letter failing which they put the applicant on notice that they were instructed to file a bill for taxation in accordance with r 40.17 of the 2011 Rules. On the same date the applicant also wrote to the respondents’ solicitors in relation to the issue of costs of the Appeal Proceedings. The concluding paragraph of that letter was as follows:

If it becomes necessary, I will apply for reinstatement of the Appeal. In my notice of discontinuance, I withdrew the judgment part of FCA130, not the order. I am entitled to reopen the Appeal VID122/2015.

73    On 5 June 2015 the primary judge made orders and gave judgment in Chen v Monash University (No 2) [2015] FCA 552 (the Costs Decision). The orders included that the applicant pay the respondents’ costs of the proceedings incurred on and after 28 May 2013 on an indemnity basis and that the applicant pay the respondents a lump sum of $900,000 in full satisfaction of the costs orders made in Chen v Monash.

74    On 8 June 2015 the applicant wrote to Mr Nicholas Wallwork of this Court noting that she was preparing to appeal the Costs Decision. In her email, the applicant asked if she could appeal on the papers. The reasons she gave for that were:

First, as you will find in the attached Notice of Appeal, the Appeal is a rather simple case.

Second, I received three threats to my safety, and because of this I left Australia staying in overseas. Hence, I cannot return to Australia to attend any court events in person at the risk of my safety.

75    On 9 June 2015 Ms Libbesson responded to the applicant’s email addressed to Mr Wallwork. Ms Libbesson informed the applicant that it was possible for her to file Court documents from overseas but that if she proposed to represent herself she would usually be required to attend directions and hearings in person. Ms Libbesson also noted that it would be a matter for the judge or judges managing the matter “whether they would grant you leave to appear by phone or video conferencing and this would usually be at your expense”. Ms Libbesson referred the applicant to a link on the Court website and to r 11.01(1) of the 2011 Rules which requires parties to have an address for service in Australia. Ms Libbesson concluded her email as follows:

I strongly urge you to seek legal advice in relation to this matter and any proposed appeal. I particularly suggest you seek legal advice about whether the costs orders made by Tracey J on 5 June 2015 was final or interlocutory in nature, and therefore whether you need to seek leave to appeal (see Rule 35.13 of the Federal Court Rules for the timeframe for filing an application for leave to appeal).

76    On 10 June 2015:

(1)    at 1.43 am the applicant sent two emails to Ms Libbesson. One of those emails sought information about the status of the First Instance Proceedings on the portal and the second of those emails sought further information about the way in which the applicant could appeal the Costs Decision;

(2)    at 9.12 am Ms Libbesson responded to the applicant. She once again strongly urged the applicant to seek legal advice and told her that the First Instance Proceedings were closed, that any application for leave to appeal or notice of appeal would be filed as a new matter, with the Court giving the proceedings a new matter number, that the orders made in the Costs Decision were interlocutory and the applicant would require leave to appeal those orders and that it appeared that the applicant had already filed a notice of appeal against the orders made in the First Instance Proceedings and that appeal had been discontinued;

(3)    at 11.22 am, in response to Ms Libbesson, the applicant sent an email asking Ms Libbesson to whom she “should address if I apply for reopening the discontinued appeal on the ground of fraud”;

(4)    at 11.59 am the applicant sent an email to the respondents’ solicitors copied to Ms Christie East of the Court which included the word “serve” and attached an interlocutory application dated 10 June 2015 by which the applicant sought orders that the respondents request two media organisations to remove their articles about Chen v Monash from their internet search engines;

(5)    at 12.31 pm the applicant sent a further email to Ms Libbesson in which she said:

My notice of appeal was to appeal both orders and judgment. What I discontinued was the judgment, not the orders, as I proposed consent order my email. I explained that I wanted to make a decision after the cost order is issued.

Hence, I request to reopen VID122 for at least appeal from the costs orders.

I also with to reopen appeal from the judgment on the ground of fraudulently obtained judgment.

What form should I fill?

Thanks;

(6)    at 9.07 pm the applicant sent an email to Ms Libbesson and Mr Wallwork in which she said: “Please advise me whom I should raise the matter with”. Attached to the email were two documents. The first was a letter addressed to the primary judge and the registrar of the Court by which the applicant sought that the primary judge recuse himself from continuing to sit in the First Instance Proceedings and the second was a letter addressed “To whom it may concern” by which the applicant notified that she wished to apply for leave to reopen the Appeal Proceedings. In that letter, the applicant said that the withdrawal of the Appeal Proceedings was caused by threats to her safety which she specified as:

(a)    an indirect threat to her safety in a letter from the Australian Human Rights Commission (AHRC) dated 27 November 2014 which included the phrase “Monash University terminated you”;

(b)    on 28 December 2014 she received a DVD that she did not order titled “Maniac Cops 2” with “you have the right to remain silent forever” on the cover of the case; and

(c)    in February 2015 she received an anonymous letter with a link to the article https//ebosswatch.wordpress.com/2009/10/23/woman-who-filed-sexual-harrassment-lawsuit-killed-in-house-fire/.

The applicant said that due to those threats she left Australia in March 2015. After searching for a month she was unable to retain a lawyer and, without a lawyer to represent her, she thought it was not feasible for her to travel back to attend court whilst she was overseas and that her appeal would be dismissed. As a result the applicant said that she withdrew the Appeal Proceedings. The applicant noted that she now understood that she could attend “directing and hearing” of her appeal via telephone.

77    On 15 June 2015 at 5.06 am the applicant sent a further email to Mr Wallwork, copied to Ms Libbesson, attaching a letter of the same date which was in similar terms to her letter dated 10 June 2015 concerning reinstatement of the Appeal Proceedings referred to in the preceding paragraph.

78    On 19 June 2015 Mr Daniel Caporale, district and appeals registrar Victoria registry, sent a letter to the applicant in which, among other things, he informed the applicant that it was not possible for her to reopen her finalised appeal by way of letter to the Court and that he would not accept her letter titled “Apply for reopen 19 June 2015” for filing pursuant to r 2.27(b) of the 2011 Rules on the basis that the letter was not in an appropriate form and did not substantially comply with the 2011 Rules.

79    On 23 June 2015 the applicant sought to file, via eLodgement, her affidavit dated 12 June 2015 and an interlocutory application by which she sought an order that the Appeal Proceedings be reinstated. By email of the same date Ms Libbesson wrote to the applicant seeking clarification about the reference in the interlocutory application to r 33.4B(f) of the 2011 Rules which Ms Libbesson informed the applicant did not seem to exist. The applicant then sought to file an amended interlocutory application and affidavit dated 12 June 2015. By email dated 25 June 2015 Ms Libbesson informed the applicant that the first four pages of the amended interlocutory application would be accepted for filing and requested that the applicant remove the last four pages.

80    The applicant then filed an amended interlocutory application of four pages in length. In the amended interlocutory application the applicant seeks an order that the Appeal Proceedings be reinstated on the grounds that she discontinued those proceedings because of threats to her safety. The threats that are set out are the same as those included in the letters provided to the Court on 10 and 15 June 2015.

THE EVENTS IN THE APPLICATION TO REINSTATE

81    The applicant says that she filed her notice of discontinuance of the appeal because of threats to her safety and she seeks reinstatement of the Appeal Proceedings on that basis and because, having left Australia as a result of those threats and because she could not secure legal representation, she subsequently became aware that she could attend the Appeal Proceedings by telephone. There are three threats set out in the amended interlocutory application.

82    The first threat referred to by the applicant is alleged to be included in a letter dated 27 November 2014 from the AHRC to the applicant. That letter relates to a complaint by the applicant against the first respondent, Monash University, and one of its employees, Mr Nick Birbilis alleging victimisation under the SD Act. The complaint is described at page 1 of the letter as follows:

You claim that on 25 June 2014, Monash University victimised you for making a previous complaint to this Commission by terminating your employment with it after you were accused of workplace misconduct. You also claim that your former supervisor at Monash University, Mr Birbilis, victimised you by ceasing the scholarship of a PhD student you were supervising.

83    The purpose of the letter was to advise the applicant of the current assessment of her complaint, based on information the AHRC had received, and to give the applicant the opportunity to provide further information in support of her complaint should she wish to do so. At page 5 of the letter under the heading “Your complaint relating to events which are alleged to have occurred after 18 July 2013” the author informed the applicant that the President may decide to terminate a complaint if she is satisfied that it is lacking in substance. In the course of addressing the information provided by reference to that issue the letter records:

Rather, the information before the Commission, including the content of the letters to you from Monash dated 10 April 2014, 6 June 2014 and 25 June 2014 advising you of its findings into its investigation against you, suggest that the reason Monash University terminated you was due to its views that your conduct in the workplace amounted to serious workplace misconduct under its Enterprise Agreement. I note that Monash University states that this conduct includes misuse of a corporate credit card for personal use, sending inappropriate emails to staff that were considered harassing and threatening despite being previously directed to cease this action.

(emphasis added)

84    The applicant says that it is the phrase “Monash University terminated you” that was unacceptable and “effectively delivered a death threat” to her. However, upon receiving that letter the applicant did not depart Australia. She remained in the country until at least March 2015.

85    The second threat referred to by the applicant is her receipt of a DVD that she had not ordered titled “Maniac Cop 2” which had the phrase “you have the right to remain silent forever” on its case. The applicant received the DVD via a purchase she had made through eBay on 28 or 29 December 2014. The applicant had in fact ordered the movie “Fatal Attraction”. According to the applicant, this was the first time that an error of this nature had occurred, despite the many eBay purchases she has made. The applicant believes that it was a deliberate change in title and that the first respondent, Monash University, was behind it.

86    Upon receipt of the DVD, the applicant complained to the eBay vendor as it was not the title she had ordered. The subject line of an email exchange between the applicant and the eBay vendor reads “Re: Item I received isn’t as described: importcds-au sent a message about Douglas/Close – Fatal Attraction (2013, DVD NEW) #141343009939”. On 31 December 2014 the eBay vendor informed the applicant that she would receive a refund for the incorrect order and on 1 January the eBay vendor informed the applicant that she did not need to return the incorrect item. The applicant subsequently received the movie she had ordered, Fatal Attraction. After receiving the DVD, Maniac Cops 2, the applicant remained in Australia.

87    The third threat referred to by the applicant is alleged to be contained in an undated and unsigned letter she received on or about 27 February 2015. That letter, which the applicant says she received in an envelope addressed to her at her home address which she has since thrown away, recorded only:

Woman who had filed sexual harassment lawsuit killed in house fire https://ebosswatch.wordpress.com/2009/10/23/woman-who-filed-sexual-harrassment-lawsuit-killed-in-house-fire/

88    The applicant read the article at the link. A copy of it is not before the Court. The applicant says that the letter was a threat to her safety. After receipt of the letter at her home address the applicant filed her notice of appeal on 18 March 2015, a supplementary notice of appeal on 19 March 2015, submissions in relation to the Costs Application dated 9 April 2015 and her notice of discontinuance dated 15 April 2015 and provided a letter to the Court dated 31 March 2015 seeking that Pagone J recuse himself, all of which included the applicant’s home address to which the offending letter had been sent. The applicant says that, despite having moved from Australia in March 2015, she was required by the 2011 Rules to have an Australian address for service hence the inclusion of that address.

89    The applicant did not inform the Court either on 27 February 2015, when judgment was given in Chen v Monash, or on 9 April 2015, when the Appeal Proceedings were listed before Pagone J for directions, that she had received three threats. However, the applicant says that she reported the first threat to the Victorian Police and to the United Nations. In relation to the former the applicant said that four police officers came to her house after she reported the incident by telephone. In relation to the latter there is an email dated 27 November 2014 addressed to the United Nations from the applicant titled “Re: Fwd: Communications under special procedures – discrimination against women” in which the applicant says that on that day she received a “death threat, vialed subtle one” and that she needs “direct intervene from the UN”.

90    The first reference to one of the threats in a document filed with the Court is in the applicant’s submissions in relation to the Costs Application dated 9 April 2015 in which at paragraph 1 she says:

The Applicant received a vailed (sic) threat to her safety on 27 November 2014. For her safety, the Applicant had to inform her case to a limited number of her colleagues, including Professor Kiyonori Suzuki.

91    The applicant says that it was after she received the third threat, the anonymous letter, that she decided to move from Australia. In March 2015 she moved to Belgium for a short time and then returned to pack her things before moving away more permanently.

92    The respondents’ solicitor has made inquiries, either directly or through the first respondent, of a number of people who have been associated with the applicant, including the second and third respondent. None of those people had any knowledge of the DVD or the anonymous letter nor did they send the applicant the DVD or the anonymous letter.

93    The applicant’s evidence as to whether she has applied to reinstate the Appeal Proceedings because the United Nations High Commissioner for Refugees (UNHCR) informed her that she needs to exhaust all domestic remedies before she can make a complaint to it was confused. The applicant said that the UNHCR had informed her she was not eligible because Australia is a party to a treaty and so the applicant was ineligible to make an individual complaint. The applicant says that she has applied for reinstatement because she was informed that she can attend by telephone otherwise she would not make the application because “without the telephone I can’t directly tell the United Nations that my-my the remedies already exhausted domestically”. The applicant also said that after receiving notice from the Court that she could attend by telephone she immediately proceeded to make her application. Otherwise she says she “can just ignore that, and claim, with the United Nations, that I’m not able to attend, and I have no lawyer, and my domestic remedy is exhausted. Is that right? I can do the opposite, but I chose to reinstate because of the telephone”.

94    The applicant denied that the only way she could challenge the Costs Decision was to apply for reinstatement of the Appeal Proceedings. She said that the United Nations was another avenue as was judicial review. The applicant also denied that she departed Australia because she could not obtain employment. She observed that she did not need to be in a particular country to apply for a job there as applications could be made electronically.

EVENTS AFTER THE FILING OF THE REINSTATEMENT APPLICATION

95    The applicant says that after she filed her application for reinstatement there were two additional threats.

96    The first identified threat was in the form of a photograph which the applicant says was taken of her in London on about 23 November 2015 and somehow transmitted to her smart phone. The applicant says that she did not take the photograph and she alleged that the respondents had arranged for someone to follow her. The applicant only became aware of the photograph on her phone in January or February 2016 when she was travelling from London to Hong Kong and checking her phone at the airport.

97    The second threat is set out in a letter dated 19 November 2015 from the applicant addressed to the Chief Justice of this Court and Deputy Registrar John Mathieson. Under the heading “New Threat to My Safety in Europe” the applicant says that on 3 November 2015 “surprisingly” she found that her milk, which had a use by date of 5 November 2015, had soured. That had never happened to the applicant before. Had she not detected that the milk had soured before she drank it she would have been ill from 3 to 6 November 2015, would not have been able to “check through the manipulated Application Book” produced by the respondents and would have missed the “Court hearing (which finalised the Application Book contents)”. This would have resulted in the respondents getting “away with their manipulation in the preparation of the Application Book”. The applicant undertook some subsequent evidence collection and concluded the first respondent had been in contact with her landlord. She was looking for a new residence and in the meantime, for her safety, was buying food that did not require refrigeration.

98    On 8 February 2016, the second and third respondents obtained ex parte interim intervention orders against the applicant from the Victorian Magistrates’ Court. Those orders were served on the applicant on 9 February 2016. They prohibit the applicant from stalking, committing prohibited behaviour towards or attempting to locate, follow or keep under surveillance the second and third respondents, publishing on the internet, by email or other electronic means, any material about the second or third respondents, contacting or communicating with, approaching or remaining within 5 metres of or going to or remaining within 200m of any premises or any place where the second or third respondents live or work or getting another person to do anything prohibited by the orders.

WHY WAS THE NOTICE OF DISCONTINUANCE FILED?

99    The applicant submits that she filed the notice of discontinuance because of a combination of the three threats identified above, her inability to secure legal assistance, the fact that she was unaware until 9 June 2015 that she could attend Court by telephone, the “unconscionable costs order scheme” calculated to dissuade her from continuing with her appeal and her lack of confidence in the justice system.

100    Turning first to the three events characterised as threats by the applicant. We have reached the conclusion that, viewed objectively, they do not amount to threats.

101    The first threat is said to be contained in the letter from the AHRC to the applicant dated 27 November 2014. It was sent in response to a complaint initiated by the applicant. The allegedly offending part of the letter, characterised by the applicant as containing the threat, is an analysis by the AHRC of the effect of the correspondence which had been provided to it by the first respondent in response to the complaint in which the AHRC set out the reasons why the first respondent terminated the applicant. It is difficult to see how a statement by the AHRC, an independent body with a statutory obligation to investigate complaints made to it, could amount to a threat. This is especially so in circumstances where the allegedly offending statement did no more than recite a fact, namely that the applicant had been terminated by the first respondent, and to analyse the reasons provided by the first respondent as to why that occurred.

102    The applicant says that she reported this threat to the United Nations and to the Victorian Police at the time the letter was received from the AHRC. Despite this and despite her subjective view that the statement included in the letter amounted to a threat, the applicant remained in Australia for some months after its receipt.

103    The second threat was the receipt of the DVD “Maniac Cops 2” rather than the DVD the applicant had ordered, “Fatal Attraction”. The evidence before the Court clearly demonstrates that the delivery of “Maniac Cops 2” was an error. The emails between the applicant and the eBay vendor can only lead to that conclusion. For example, in the earliest email to the eBay vendor, initiated by the applicant on 29 December 2014, the applicant said: “I received Monach Cup 2, which is not I ordered. I look forward to your refund”. There followed several email exchanges in which the refund was confirmed and the applicant was informed that she did not need to return the incorrectly delivered item. This event was no more than an error by a vendor in delivery of an item and cannot in our view amount to a threat. There is nothing to link the error in delivery of the DVD with the respondents. The evidence is to the contrary. The applicant did not report this alleged threat to anyone at the time, did not raise it with the Court when appearing before it on three occasions subsequent to receipt of the incorrect DVD and did not depart Australia as a result of it.

104    The third threat was the receipt of the anonymous letter which was sent to the applicant’s home address on or about 27 February 2015. The letter only recorded a web address to an article titled “Woman who had filed sexual harassment lawsuit killed in house fire”. The article is not in evidence nor is the envelope in which the letter was allegedly sent. The applicant says that she threw the envelope away. Even accepting that this letter was sent to the applicant anonymously, as she claims, it is difficult to see how it could amount to a threat to her life. However, even if the applicant construed it that way, there is no evidence that the respondents were responsible for sending the letter to her. The evidence is to the contrary. Once again despite the receipt of the letter, which the applicant viewed as a threat, she did not raise it with the Court on any occasion when she subsequently appeared before it and prior to foreshadowing an application to set aside her notice of discontinuance. Further, she continued to include her residential address in Court documents and correspondence sent to the Court despite that being the address to which the anonymous letter was sent.

105    The primary judge handed down his judgement in Chen v Monash on 27 February 2015. Despite receipt of the three alleged threats by that time, the applicant commenced the Appeal Proceedings by filing her notice of appeal on 18 March 2015 and continued to prosecute the Appeal Proceedings by the filing of a supplementary notice of appeal, an amended notice of appeal and a stay application, writing to the Court seeking that the judge who was case managing the Appeal Proceedings recuse himself and appearing at two directions hearings, at neither of which the three threats were raised. Those facts suggest that the applicant did not feel threatened by those events.

106    If we are wrong in that conclusion and the applicant felt threatened by those events and nonetheless pursued her appeal rights it was not the existence of the threats that caused her to discontinue the Appeal Proceedings. In the notice of discontinuance the applicant clearly stated that she was discontinuing the appeal because she was unable to secure legal representation and because her prospects of success were low “without legal aid”. There is no mention in the notice of discontinuance of the threats and the need to depart Australia because of those threats. The applicant could have included those matters if they were relevant to her decision to discontinue. In addition, for some time after filing the notice of discontinuance the applicant acted consistently with her apparently conscious and voluntary decision to discontinue the appeal. She reminded Ms Libbesson of the discontinuance when Ms Libbesson mistakenly sought the completed status report from the parties and she exchanged correspondence with the respondents’ solicitors about the costs order in Chen v Monash maintaining that she remained entitled to appeal the costs order.

107    The applicant submitted that the respondents’ solicitors’ letter dated 2 April 2015, which raised a number of issues relevant to the applicant’s ability to satisfy any order for costs of the Appeal Proceedings should such an order be made in the respondents’ favour, evidences those solicitors’ premature knowledge of her inability to retain lawyers to act for her in the Appeal Proceedings and suggests that she leave Australia. In our view it is impossible to construe the letter that way. The reference to it being unlikely the applicant would stay in Australia after the Appeal Proceedings was an opinion based on the matters which followed in the letter including that the applicant’s husband and child lived in Belgium and that she had recently been in Belgium as evidenced by her affidavit dated 19 March 2015 which had been sworn or affirmed in Belgium. The reference to the applicant’s inability to retain lawyers was a reference to the trial and not the Appeal Proceedings. It was one of the reasons why the respondents formed their opinion about the applicant’s ability to satisfy any costs order. No improper or untoward behaviour can be sheeted home to the respondents by reason of this letter.

108    The applicant also submits that the obtaining and service on her of the interim intervention orders by the second and third respondents was an attempt by the respondents to frustrate her conducting of the application to reinstate her appeal. She contended that a more fragile person would, upon receipt of such orders, be unlikely to be able to continue to conduct the proceedings and that was the motive behind the obtaining and service of those orders. There is no evidence that is the case. The orders were issued by the Victorian Magistrates’ Court in circumstances where the second and third respondents knew the applicant would be in Victoria because of these proceedings and in circumstances where the Court can infer that they felt sufficiently aggrieved by the conduct described in the applications and summons attached to each of the interim intervention orders to approach the Victorian Magistrates’ Court for the relief that it then granted.

109    The applicant also points to the fact that she was unaware that she did not need to be present in the jurisdiction to participate in the Appeal Proceedings. It was not until just prior to taking steps to file her application for reinstatement that she became aware of this possibility. The email relied on by the applicant is dated 9 June 2015 and is not conclusive on that issue. In the email Ms Libbesson says: “if you propose to represent yourself you would usually be required to attend directions and hearings in person. It would be a matter for the Judge or Judges managing the matter whether they would grant you leave to appear by phone or videoconferencing and this would usually be at your expense.” This email was sent in response to the applicant’s inquiries about filing an appeal of the Costs Decision, which seems to have been the catalyst for the application to reinstate. That is the applicant had already determined that she wished to appeal the Costs Decision and was inquiring about whether she could do so on the papers before she was informed of the possibility of appearing by telephone or videoconference, subject to leave being granted by the Court.

110    In our view the applicant’s decision to file the notice of discontinuance was a deliberate one. It was not actuated by fraud. The events which the applicant says were threats which caused her to leave Australia cannot in our view be categorised in that way. But even if the applicant subjectively viewed them that way we do not think they were the reason for the applicant discontinuing the Appeal Proceedings. Whatever the reason for her departure from Australia, the applicant made a deliberate and informed decision at the relevant time to discontinue her appeal because of her inability to secure legal representation. The applicant has not identified any abuse of the Court’s processes which led or caused her to file the notice of discontinuance of the appeal. Pursuant to r 36.73(2) of the 2011 Rules the notice of discontinuance had the effect of an order of the Court dismissing the applicant’s appeal. The power to prevent an abuse of the Court’s processes is not enlivened.

THE PROSPECTS OF THE APPLICANT’S APPEAL

111    Even if the Court’s power to reinstate the appeal had been enlivened, it would not be appropriate to reinstate the appeal because of the view we have formed about the prospects of success of the proposed appeal.

112    The applicant’s amended notice of appeal contains 65 grounds of appeal. It is not convenient to set them out in full. The applicant submits that the errors fall within three areas, errors of fact, errors of law and procedural unfairness:

(1)    the alleged factual errors can be broadly grouped into three categories: those where the applicant alleges that the primary judge failed to consider a factual matter in his judgment, those where the applicant alleges that the primary judge made an incorrect finding of fact and those where the applicant alleges that the primary judge made incorrect credit findings;

(2)    the alleged errors of law are the misapplication of s 28B of the SD Act in relation to the combined effect of certain emails and the “peace and quiet” expression, the misapplication of s 46PO of the Australian Human Rights Commission Act 1986 (Cth) (the AHRC Act), the misapplication of s 94 of the SD Act where the primary judge found that he did not have jurisdiction to hear the applicant’s claims for victimisation, the misapplication of the Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 (Briginshaw) principle manifested by a failure to admit evidence and the refusal to grant leave to issue subpoenas, the refusal to grant leave to amend the application by adding a claim for unlawful termination and an error in making an award of costs in favour of the respondents; and

(3)    the alleged errors of procedural unfairness include an allegation of bias against the primary judge, alleged errors in the transcript which are said to be made under the influence of the first respondent and attempts to hamper the applicant’s case by the primary judge’s associate allegedly replacing an exhibit and incorrectly typing R88 on the exhibit list in relation to an email from the applicant to the second respondent’s wife which the applicant says was done with the intent of tempting the applicant to act inappropriately by contacting the second respondent’s wife.

113    In addressing the grounds of appeal alleging errors of fact it is convenient to set out some statements of principle which apply generally to that category of appeal. Firstly an error of fact of itself is not a proper ground of appeal. In order to succeed the applicant must show that the alleged error of fact on the part of the primary judge, either in failing to consider a fact or making a wrong finding, would have made a difference to the ultimate findings of fact by the primary judge. Relevant to this approach is the decision of a Full Court of this Court in Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 234 FCR 549; [2002] FCAFC 157, on which the respondents rely, where Branson J, when commenting on the notice of appeal relied on in the matter, said at [4]:

A ground of appeal is a basis upon which the appellant will contend that the judgment, or a part of the judgment, should be set aside or varied by the Court in the exercise of its appellate jurisdiction. Not every grievance entertained by a party, or its legal advisors, in respect of the factual findings or legal reasoning of the primary judge will constitute a ground of appeal. Findings as to subordinate or basic facts will rarely, if ever, found a ground of appeal. Even were the Full Court to be persuaded that different factual findings of this kind should have been made, this would not of itself lead to the judgment, or part of the judgment, being set aside or varied. This result would be achieved, if at all, only if the Full Court were persuaded that an ultimate fact in issue had been wrongly determined. The same applies with respect to steps in the primary judge’s process of legal reasoning. Although alleged errors with respect to findings as to subordinate or basic facts, and as to steps in a process of legal reasoning leading to an ultimate conclusion of law, may be relied upon to support a ground of appeal, they do not themselves constitute a ground of appeal.

114    The applicant raises a number of grounds relating to the credit findings made by the primary judge. We observe at this point, both in relation to these grounds and the other grounds alleging error of fact, that the primary judge had the benefit of hearing the evidence of the witnesses and observing their demeanour during the trial which ran for 14 sitting days. Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 (Fox v Percy) considered the role of a court of appeal. In doing so, the plurality of the Court (Gleeson CJ, Gummow and Kirby JJ) recognised the advantages of a trial judge in the evaluation of the credibility of witnesses and what they called the “feeling” of a case which could not always be gleaned by an appellate court reading a transcript. Their Honours said at [23]:

Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.

And at [27] to [29]:

27.    … If, making proper allowance for the advantages of the trial judge, they conclude that an error has been shown, they are authorised, and obliged, to discharge their appellate duties in accordance with the statute.

28    … the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge’s conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.

29    That this is so is demonstrated in several recent decisions of this Court. In some, quite rare, cases, although the facts fall short of being ‘incontrovertible’, an appellate conclusion may be reached that the decision at trial is ‘glaringly improbable’ or ‘contrary to compelling inferences’ in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must ‘not shrink from giving effect to’ its own conclusion.

115    The primary judge made findings and observations under the heading “Credit” at [18] to [21] of his judgment. He did so with the benefit of a trial judge described by the plurality in Fox v Percy. It is only if the primary judge’s findings can be shown to be in the category of contrary to the incontrovertible facts or “glaringly improbable” that an appellate court would intervene with the primary judge’s findings of fact or conclusions on credit. Insofar as the applicant seeks to impugn the credit findings made by the primary judge, her grounds of appeal and the material to which we were taken do not disclose a case of credit findings that were glaringly improbable or contrary to the incontrovertible facts. Rather, the applicant’s issues are with the primary judge accepting versions of events of the respondents’ witnesses over hers.

116    The applicant alleges that there are numerous incorrect findings of fact in the judgment: see [13] to [20] and [22] to [45], [53] and [55] of the amended notice of appeal. In some cases the matters which are alleged to be incorrect findings of fact are also raised in the context of alleged legal errors. To the extent that these grounds of appeal suggest that there was an error of fact because the primary judge failed to consider or ignored a matter we note the following:

(1)    at [16] of the amended notice of appeal, the applicant alleges that the primary judge failed to take into account the context of an email dated 8 January 2012. However, the primary judge addressed this email at [35] of his judgment;

(2)    at [19] of the amended notice of appeal, the applicant alleges that the primary judge overlooked the inconsistency between the evidence of Professor Cheng and the third respondent. However, the primary judge addressed this issue at [83] to [86] of his judgment;

(3)    at [32] of the amended notice of appeal, the applicant alleges that the primary judge ignored the incident of the relocation of the applicant’s office/laboratory. However, the primary judge addressed this issue at [179] to [184] of his judgment;

(4)    at [28] of the amended notice of appeal, the applicant alleges that the primary judge overlooked evidence of the applicant’s rejection of the third respondent. However, the primary judge addressed this issue at [25] of his judgment;

(5)    at [40(11)] of the amended notice of appeal, the applicant alleges that the primary judge overlooked evidence relating to her rehearing application. However, the primary judge addressed this issue at [240] to [242] of his judgment;

(6)    at [53] of the amended notice of appeal, the applicant alleges that the primary judge failed to find certain facts which showed that the third respondent attempted to disqualify the applicant from the Discovery Early Career Research Award. However, the primary judge addressed this issue at [128] to [130] of his judgment;

(7)    at [55] of the amended notice of appeal, the applicant alleges that the primary judge overlooked evidence that suggested the targeted constructive dismissal behind the procedural irregularities. However, the primary judge addressed this issue at [224] to [226] of his judgment; and

(8)    in her written and oral submissions, the applicant contended that the primary judge ignored evidence tendered at trial (exhibit A75) which proved that Professor Sridhar made up incorrect performance standards. However, while not specifically referring to that piece of evidence, the primary judge addressed the issue of the performance standards at [216] to [223] of his judgment, including setting out his findings on the evidence.

117    As to the balance of the alleged errors of fact, the applicant contends that incorrect findings were made by the primary judge or parts of the evidence were not referred to by the primary judge in his judgment. For example, in oral submissions, relating to [35] of the amended notice of appeal, the applicant took the Court to a part of the expert report of Mr David Caldwell (part of exhibit R150) relied on by the respondents at the hearing. The applicant submits that the identification of the unique information for the second respondent’s iPad in that part of the report, namely that the last factory restore or upgrade was on 16 May 2012 and that the iPad was last synced with the second respondent’s MacBook on 18 May 2012, are two critical operations for erasing any unwanted game from the iPad. Notwithstanding this the primary judge did not mention this report in his judgment. The primary judge addressed the issues arising from the iPad sperm game allegation, to which this evidence relates, at [196] to [202] of his judgment. The primary judge refers to forensic examination of the iPad in question but does not refer to specific parts of a report. The fact that this aspect of the report was not mentioned in the judgment does not mean it was overlooked nor does it, of itself, lead to the judgment being set aside or varied.

118    The applicant does not allege that the findings of fact that fall within this category are findings to which no reasonable person could come or that they are made without any evidence. What she suggests is that her view of the facts is the better or correct view. That is no more than an attempt to cavil with the primary judge’s findings without pointing to any appealable error and these grounds are unlikely to succeed.

119    We now turn to consider the errors of law. The first such error that is alleged by the applicant is that the primary judge erred in his finding that the Court did not have jurisdiction to hear her claims of victimisation. The applicant submits that she sought civil not criminal remedies from the Court and that the primary judge failed to take that into account and failed to consider the appropriate authorities such as Alexander v Cappello & Anor [2013] FCCA 860 (Alexander v Cappello).

120    Relevant to this ground of appeal are the following provisions of the SD Act:

(1)    section 94 which provides:

(a)    that a person shall not commit an act of victimisation against another person and sets out a penalty for breach of the subsection which includes the imposing of a fine by reference to penalty units and, for a natural person, imprisonment: s 94(1);

(b)    when a person shall be taken to have committed an act of victimisation: s 94(2); and

(c)    for a defence to a prosecution for an offence under s 94(1): s 94(3); and

(2)    section 13A of the SD Act which provides that Chapter 2 of the Criminal Code applies to all offences against the SD Act.

121    Section 49B of the AHRC Act confers on this Court and the Federal Circuit Court of Australia (Federal Circuit Court) concurrent jurisdiction with respect to civil matters arising under Part IIB or IIC and, in conferring jurisdiction on this Court in relation to any matter arising under any laws made by the Commonwealth Parliament, s 39B(1A)(c) of the Judiciary Act 1903 (Cth) expressly excludes “a matter in respect of which a criminal prosecution is instituted or any other criminal matter”. While a claim of victimisation can be made to the AHRC it seems that it cannot, based on the operation of these sections, be made to this Court.

122    In Walker v State of Victoria [2012] FCAFC 38 (Walker v State of Victoria) a Full Court considered whether this Court had jurisdiction to hear a claim for victimisation arising out of an alleged breach of s 42 of the Disability Discrimination Act 1992 (Cth) which creates a criminal offence in an analogous way to s 94 of the SD Act. After setting out the relevant sections Gray J (with whom Reeves J agreed) said at [99]:

It is clear that the trial judge had no jurisdiction to deal with victimisation as a criminal offence. Even if such jurisdiction had existed, for very many reasons it would be wrong to exercise it in conjunction with the exercise of jurisdiction in relation to a civil matter. Only if the provisions of the Human Rights Act to which I have referred in [98] above were to be construed as converting victimisation into a civil cause of action would the trial judge have had jurisdiction to deal with it. On occasions, it has been assumed that the provisions have been effective to create such a civil cause of action. See, for example, Penhall-Jones v State of NSW [2007] FCA 925 at [10]. There is a real question whether this is so. See Walker v Cormack [2011] FCA 861 at [37]-[41]. It seems strange that Parliament would confer on any court jurisdiction specifically to determine as part of a civil proceeding whether ‘conduct that is an offence’ under a specified provision has occurred. Courts are used to dealing in civil cases with allegations of conduct that might also be an element of a criminal offence. Trespass to the person is an example. Even so, if the same conduct were to be the subject of criminal proceedings, there would be additional issues, such as the requisite mental element. Courts are also used to dealing with cases in which they may be required to grant certificates pursuant to s 128 of the Evidence Act 1995 (Cth), or equivalent provisions, so that witnesses may give evidence freely in civil proceedings which, but for such certificates, could be used against them in subsequent criminal proceedings. It would still be an odd step for Parliament to take to require a court to determine in a civil case whether an offence has occurred. If there has been a conferral on this Court and the Federal Magistrates Court in respect of a complaint of victimisation, that would be the task of the Court.

123    The primary judge addressed this issue at [10] to [11] of his judgment. In doing so he observed that the applicant accepted the Court could not entertain claims of victimisation because the Court has no jurisdiction to deal with a claim that creates a criminal offence. At the election of the applicant and, without opposition from the respondents, the allegations that would otherwise have made up the applicant’s claim of victimisation were dealt with as sex discrimination claims which formed part of a course of conduct on the part of the first respondent. There is no appealable error in the approach of the primary judge to this issue. He properly found that there was no jurisdiction in this Court to hear a claim which amounts to a criminal offence and made reference to the authority that was binding on him: Walker v State of Victoria. The applicant was permitted to lead evidence in relation to the matters that she said amounted to victimisation as part of her sex discrimination claims.

124    The applicant relies on Alexander v Cappello, a decision of Judge Driver in the Federal Circuit Court, in which Judge Driver made a finding that a claim of victimisation pursuant to s 94 of the SD Act had been established. Although Judge Driver refers to the judgment of Gray J in Walker v Victoria, he did not consider the issue of whether the Federal Circuit Court had jurisdiction to consider a claim for victimisation pursuant to s 94 of the SD Act. We assume the issue was not raised and his attention was not drawn to the relevant remarks of Gray J on that issue in Walker v Victoria. In any event, Alexander v Cappello was not binding on the primary judge and, if it was brought to his attention, he properly did not follow it.

125    A second error of law alleged by the applicant is that the primary judge failed to apply s 28B of the SD Act. Relevantly that section provides that it is unlawful for a person to sexually harass an employee of that person or for an employee to sexually harass a fellow employee. Section 28A sets out when a person “sexually harasses another person” for the purposes of Div 3 of the SD Act which includes s 28B. Section 28A(1) is in the following terms:

28A     Meaning of sexual harassment

(1)    For the purposes of this Division, a person sexually harasses another person (the person harassed) if:

(a)    the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or

(b)    engages in other unwelcome conduct of a sexual nature in relation to the person harassed;

in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.

Section 28A(2) then sets out a non-exhaustive list of the circumstances to be taken into account for the purposes of subs (1).

126    The applicant’s complaint is that the primary judge failed to take into account all of the circumstances and alleges that, having regard to all of the circumstances, a reasonable person would have concluded that the applicant was sexually harassed. In oral submissions, the applicant contended that the primary judge failed to consider and address in his judgment the evidence contained in two emails from the applicant to the third respondent, exhibits A45 and A46, in which the applicant says she rejected the sexual advances of the third respondent. These emails are included in the circumstances to which the applicant says the primary judge failed to have regard in her amended notice of appeal.

127    At [27] of his judgment the primary judge noted that he had carefully considered each of the allegations made by the applicant and rejected each of them either because, as a matter of law, they could not constitute sexual harassment or, because they were not supported by the evidence, or both. There is nothing to suggest that the primary judge did not have regard to all of the circumstances in determining whether there had been conduct contravening s 28B of the SD Act. A fair reading of the judgment suggests the contrary. To the extent the applicant simply disagrees with the findings of the primary judge this does not demonstrate a failure by the primary judge to take into account all of the circumstances as required by s 28B of the SD Act.

128    In the category of legal error the applicant also raises as a ground of appeal the primary judge’s refusal to allow the applicant to amend her claim to include allegations that had not been raised before the AHRC. First the applicant submits that the primary judge wrongly rejected email evidence, exhibit A173, because it was not included in the applicant’s original complaint made to the AHRC. The email, which was from the third respondent to the applicant, concerned the applicant’s failure to secure funding from the Australian Research Council. In it the third respondent said:

sorry I missed you today. I know you would be feeling disappointed and angry. Lets (sic) see what Helen says about an appeal.

129    At [103] to [105] of his judgment, the primary judge found that the email was not included in the applicant’s application to the AHRC nor in her application to the Court and was only included as part of her sexual harassment claim in closing submissions. Accordingly as no such complaint was considered by the AHRC, the primary judge found that it was not open to the applicant to pursue it before him. In any event, the primary judge found that the complaint was devoid of substance.

130    There is no error in the approach of the primary judge. As the primary judge explained at [5] of his judgment, s 46PO of the AHRC Act requires that the unlawful discrimination alleged in any application commenced in the Federal Circuit Court or this Court must either be the same as the unlawful discrimination that was the subject of the terminated complaint or must arise out of the same acts, omission or practices that were the subject of the terminated complaint.

131    Secondly, the applicant submits that the primary judge erred by refusing leave to amend her claim to include a claim for unlawful termination of her employment. The applicant submits that the primary judge’s refusal of leave was contrary to r 8.21 of the 2011 Rules. The primary judge refused leave to amend to add this claim because the relevant conduct took place during and after part of the trial and the additional complaints the subject of the proposed amendment had not been referred to the AHRC. Rule 8.21 does not assist the applicant. It permits a party to seek leave to amend an originating application to add, among other things, a new claim for relief that arises out of the same facts or substantially the same facts as those already pleaded to support an existing claim for relief or in whole or part out of facts or matters that have occurred since the start of the proceedings. However, even if the applicant’s proposed amendment was within the terms of r 8.21, leave could not be granted given the operation of s 46PO of the AHRC Act.

132    The applicant also includes as a ground of appeal that the primary judge incorrectly applied the standard of proof required by Briginshaw to his assessment of the matter. The primary judge addresses the onus of proof at [16] of his judgment noting that the applicant bore the onus of proof. He observed that the allegations made by the applicant were serious and that this must be borne in mind when assessing the strength of the evidence that was relied on in support of the claims there referring to Briginshaw.

133    The applicant contends that the primary judge failed to properly apply the Briginshaw standard by not granting leave to issue subpoenas to Virgin Airlines in relation to the flight from Coffs Harbour to Sydney and to Apple Pty Ltd in relation to the sperm game issue and in rejecting some of the evidence. We address each of those matters below.

134    In relation to the proposed subpoena to Virgin Airlines, the applicant submits that the primary judge wrongly disallowed that subpoena which would have produced evidence to prove “the false claims made by” the third respondent. The applicant contends that she sought leave to issue the subpoena in order to establish that the witness called from Virgin Airlines by the respondents, Mr Dixon, was not independent because there was an “insurance issue” and to show that his evidence was inconsistent with the contents of an email between the applicant and Guest Relations at Virgin Airlines (exhibit A156) which the applicant sought to rely on in relation to the issue of the third respondent’s seat allocation.

135    The primary judge addressed the issue of the flight from Coffs Harbour at [115] to [127] of his judgment. In relation to the third respondent’s seat allocation the primary judge found at [123] that the evidence called from a Virgin Airlines manager established, based on computer records, that the third respondent had been allocated seat 8E by the airline’s computer system the evening prior to the flight and that allocation had been confirmed when he checked in on-line from the hotel later in the morning.

136    The applicant also submits that the primary judge incorrectly refused leave to issue a subpoena to Apple Pty Ltd. Prior to the transfer of the proceedings from the Federal Circuit Court to this Court, the applicant had been granted leave to issue a subpoena to Apple Pty Ltd which the Federal Circuit Court, on application by Apple Pty Ltd, had ordered be set aside. The applicant did not appeal that decision. During the course of the hearing before the primary judge the applicant renewed her application for leave to issue a subpoena to Apple Pty Ltd. That leave was refused. At transcript p 1050 the primary judge said that he would not grant leave to issue a subpoena in the terms sought and that the production of such material would not assist the proceedings at the stage they had reached. That is, after evidence had been given by both parties.

137    In both cases it was a matter for the primary judge to determine whether leave should be granted to issue the subpoenas in the terms and at the stage they were sought. No error in the primary judge’s decision to refuse leave is apparent.

138    The evidence referred to by the applicant, the rejection of which she says shows that the primary judge incorrectly applied the Briginshaw principle, is preventing evidence relating to the office relocation being given, rejecting the applicant’s “strong” evidence in relation to the laboratory relocation and the first respondent’s investigator’s false note and rejecting the “sorry I missed you today” email.

139    In relation to the first matter, in oral submissions, the applicant submitted that the primary judge stopped critical evidence being given. Before the primary judge the applicant sought to tender a transcript of a telephone conversation which took place on 28 August 2013 between her and Mr Stellios Konstantinidis. The applicant alleges that the primary judge incorrectly exercised his discretion to refuse the evidence. The applicant attempted to tender the transcript during her cross examination of Ms Brenda Fortington, who the primary judge found at [181] of his judgement was responsible for making the decision to relocate the applicant’s office/laboratory. Ms Fortington was not a party to the alleged conversation with Mr Konstantinidis. Accordingly, the primary judge rejected the tender for that reason. There is no error in the approach of the primary judge. The transcript could not be tendered through a witness who was not party to the conversation recorded in it.

140    In relation to the second matter the applicant submitted that two employees were trying to persuade her to relocate her laboratory away from other “boys” laboratories and next to “George Simons’ office”. In support of that submission she relied on a part of a transcript of secret recordings she made of conversations with employees of the first respondent (part of exhibit A141). Relevantly she relied on the following part of a conversation between her and two unidentified employees of the first respondent which she says the primary judge did not take into account:

11:    George explained it to me, you know, he’s like spinning out fibres and then layering them, and then taking them to the Polymers Synthesis lab…

…

P:    So this is actually now is quite empty. Why don’t move the electro spinning to here?

…

P:    No, it doesn’t make sense, anyway.

11:    Perhaps it would be best to chat with George, because he was the one who sort of made that call….

P:    I think his mind’s thinking something else….

…

P:     it doesn’t make sense to me.

…

12:     George again.

11:    What I’ll do is I’ll just write down to have a chat with George about that.

141    The primary judge made findings in relation to the laboratory relocation at [179] to [184] of his judgment. He found that the applicant failed to establish any factual foundation for her allegations of harassment and discrimination against the third respondent as a result of the incident: at [184]. He summarised the evidence referring to the fact that the applicant had alleged that the allocation of her office to one next to his was at the third respondent’s direction. The evidence that the primary judge accepted was a matter for him. The characterisation of evidence of this nature as “strong” is made by the applicant. Given the primary judge’s findings, he clearly did not accept it as such.

142    While dealing with this evidence we also note that the applicant submitted that the reference to “spinning out fibres and then layering them, and then taking them to the Polymers Synthesis lab” by one of the participants to the conversation amounted to sexual harassment because the process of electro spinning visually looks like a penis. The respondents submitted that this allegation had not been made before the primary judge and that the applicant only relied on the conversation to say that the reference to the third respondent and electro spinning demonstrated that the third respondent must have been the person who motivated her office move. We accept that submission.

143    The applicant also submits that the primary judge rejected the strong evidence in relation to the first respondent’s investigator’s false note. The applicant submits that the first respondent’s investigator made false records in her investigation in order to cover up sexual harassment. The applicant relies on a document which was part of a draft report (exhibit R10) prepared by the investigator, Ms Norena Kavanagh, which records that “GS suddenly stood still and asked me to make his tie. I rejected.” and that the applicant stated “you look good; no need to adjust tie”. The applicant contends that she never said this and that Ms Kavanagh’s record of what she said is incorrect. Ms Kavanagh’s evidence was that what she recorded was her interpretation of what the applicant said to her. It was not a transcription of what the applicant said to her. Ultimately, in his judgement at [63] to [66], the primary judge came to the view, relying on a series of matters, that the allegation that the applicant had been sexually harassed by being asked about the appearance of a tie and whether it needed to be adjusted could not be found. The primary judge did not rely on the record included at R10 of “no need to adjust tie”.

144    The final matter is the rejection of the “sorry I missed you email”. As explained at [128] to [130] above, the primary judge did not consider this email as the complaint arising from it was not included in the applicant’s complaint to the AHRC.

145    The final category of alleged error are those grounds by which the applicant alleges bias on the part of the primary judge, irregularities in the conduct of the trial on the part of the judge’s associate and that the transcript was replete with errors which could not be regarded as genuine. The applicant submits that the primary judge was influenced by the first respondent in producing his judgment and refers to the primary judge’s statement at [231] that: “Dr Chen considered herself to be an academic who had provided great service to the University”. The applicant alleges that she never made such a claim before the Court and that such a statement could have only come from the internal records of the first respondent which were not otherwise in evidence.

146    The statement relied on by the applicant as evidencing bias on the part of the primary judge was made in the context of his consideration of the applicant’s claim that the respondents discriminated against her on the grounds of sex when dealing with her promotion. There is no evidence that the primary judge was influenced by the first respondent in the way suggested by the applicant or of any bias on the part of the primary judge in the production of the judgment. In order to demonstrate that the decision of the primary judge was affected by actual bias the applicant would need to prove that the primary judge approached his task with a closed mind or that he prejudged the matter. Actual bias requires “not just an appearance of impartiality but that the decision-maker has prejudged the case so as to be unable or unwilling to decide it impartially”: see Gamaethige v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 424; [2001] FCA 565 at [79] per Stone J. There is no evidence that is the case.

147    The test for apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question he or she is required to decide: see Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6]. In ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 at [36] a Full Court of this Court (Allsop CJ, Kenny and Griffiths JJ), after identifying the test for apprehended bias, noted:

36    Other relevant principles are:

(a)    at least the following two steps are involved in a case involving an allegation of apprehended bias:

(i)    there must be an identification of what it has said might lead a judge to decide a case other than on its legal and factual merits; and

(ii)     there must be an articulation of the logical connection between the matter and the feared deviation from a course of deciding a case on its merits;

(b)    an allegation of bias against a judge on the basis of prejudgment is a serious matter not the least because it carries with it the suggestion that the judge has failed to honour his or her judicial oath as such might be questioned by the fair-minded observer. As is also the case where such an allegation is made against an administrative officer, the allegation must be ‘distinctly made and clearly proved’; and

(c)    as noted above, the test assumes that the hypothetical fair-minded lay observer is to be attributed with appropriate knowledge of relevant matters so as to be in a position to make a reasonably informed assessment of the likelihood of apprehended bias.

(citations omitted)

148    The applicant’s allegation of bias does not rise to this level. There is no proper identification of what the applicant says might or has led the primary judge to decide the matter other than on its legal and factual merits and, to the extent the applicant identifies issues, there is a lack of logical connection between those issues and a feared deviation from deciding the case on its merits. The applicant’s allegations of bias, whether actual or apprehended, are without foundation.

149    Similarly we do not think that the other grounds of appeal raised in this category, namely errors in the transcript and the alleged conduct of the primary judge’s associate, take the matter further. There is no evidence to substantiate the allegations.

150    Having considered the amended notice of appeal and the parties’ submissions we do not think the appeal has reasonable prospects of success.

CONCLUSION

151    It follows from the matters set out above that in our view the applicant is not entitled to the relief sought. The applicant’s amended interlocutory application should be dismissed and the applicant should be ordered to pay the respondents’ costs.

Associate:

Dated:    12 May 2016