FEDERAL COURT OF AUSTRALIA

Jin v University of Melbourne [2010] FCA 471

THE COURT ORDERS THAT:

1.                   The application is dismissed with no order as to costs.

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

REASONS FOR JUDGMENT

introduction

1                     The applicant, Yin Cheng Jin, has made an application for extension of time to file and serve a notice of appeal from a judgment of O’Dwyer FM of 3 December 2009 in Federal Magistrates Court proceedings MLG642 of 2009.  Mr Jin is an experienced curator with expertise in researching and referencing Chinese ceramics.  In 1996, he completed postgraduate study at the University of Melbourne (“the University”) with a research thesis on the subject of the Chinese collection in the Art Museum of Melbourne University.  On 29 May 2009, he instituted proceedings in the Federal Magistrates Court against the University.  The University is the respondent to this application.

2                     Mr Jin claimed that cataloguing descriptions made by him of a ceramic horse and a photograph taken by him were used by the University in a brochure promoting a graduate course in art authentication.  Mr Jin claimed a breach of his copyright in that the University had used his work without authority and for a commercial purpose.  He sought relief, including financial compensation. 

3                     On 3 December 2009, O’Dwyer FM ordered that the proceeding in the Magistrates Court be discontinued with no order as to cost.  His Honour did so on the basis that the parties had compromised the proceeding by a settlement agreed to at a mediation conducted on 19 November 2009.  Mr Jin seeks to appeal from the orders made by O’Dwyer FM. 

the application for extension of time

4                     Order 52 r 15(1)(a)(i) of the Federal Court Rules provides that a notice of appeal shall be filed and served within 21 days after the judgment appealed from was pronounced.  Accordingly, any notice of appeal from the judgment of O’Dwyer FM should have been filed and served by 24 December 2009.  It was not.  On 22 February 2010, Mr Jin lodged his application for an extension of time together with a draft notice of appeal.  These documents were served on 25 February 2010.

5                     Mr Jin is self-represented.  In support of this application, he replies upon his affidavits of 22 February, 6 April and 5 May 2010.  The University has relied upon affidavits made on 9 March and 4 May 2010 by its in-house solicitor Mr Andrew Kanis. 

6                     Section 25(2)(b) of the Federal Court of Australia Act 1976 (Cth) provides that applications for an extension of time within which to institute an appeal to the Court may be heard and determined by a single judge or by a Full Court.  Order 52 r 15(2) of the Federal Court Rules provides that a judge of the Court may give leave where special reasons for the grant of leave exist. A number of decisions of this Court have considered the criteria to be applied in determining whether leave should be granted in a case of this kind.  Those decisions include Jess v Scott (1986) 70 ALR 185 at 193 and Parker v The Queen [2002] FCAFC 133 at [5].

7                     At paragraph [6] of Parker the Full Court referred to the following considerations:

(1)        applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored.  The applicant must show an “acceptable explanation for the delay”; it must be “fair and equitable in the circumstances” to extend time;

(2)        action taken by the applicant, other than by way of making an application for review, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished;

(3)        any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension;

(4)        however, the mere absence of prejudice is not enough to justify the grant of an extension; and

(5)        the merits of the substantial application are to be taken into account in considering whether an extension of time should be granted.

8                     As the Full Court further noted at [10] and [13], the purpose of the rule in relation to the grant of leave is to give the Court a discretion to extend time in order to avoid injustice.  This is intended to enable substantial injustice to prevail over technical default.  In Wilson v Alexander [2003] FCAFC 272, Ryan, Heerey and Allsop JJ posited the test succinctly as requiring an applicant to:

(1)        provide a satisfactory explanation for the delay in bringing the application; and

(2)        demonstrate that there is a prospect of success on the substantive appeal. 

explanation of delay

9                     As to his explanation for the delay, Mr Jin in his affidavit of 22 February 2010 says that he was not legally represented.  He says further that on 6 December 2009 he asked the Federal Magistrates Court for reasons of the decision of O’Dwyer FM.  He says that the reasons did not arrive until 16 January 2010 and that the correspondence provided to him did not contain information regarding the due time for appeal. 

10                  Mr Jin was and remains unrepresented and regard should be had to the difficulties which that involves.  However, he has shown himself to have some capacity to pursue his legal interests.  He made his application to the Federal Magistrates Court.  He has prepared pleadings and made several affidavits.  He has an obvious capacity to make inquiries, including as to his legal rights. 

11                  The Federal Magistrate gave his reasons orally on 3 December 2009.  Mr Jin was present when those reasons were delivered.  Written reasons corrected from transcript were made on 14 January 2010 and received by Mr Jin on 16 January 2010.

12                   Accepting Mr Jin’s argument that he was awaiting the receipt of written reasons before taking further action, there remains a period of some five weeks of inaction for which Mr Jin provided no explanation in his affidavit.  In submissions from the bar table today and without objection from the University, Mr Jin added that he first sought to file a notice of appeal on about 15 February 2010, but his attempts were rejected by reason of the fact that his documentation was not in the proper form.  He says further that between 16 January 2010 and 22 February 2010 he sought legal advice but had difficulties because of the holiday period.  There was no obligation on the Federal Magistrates Court or anyone else to advise Mr Jin of the time limits for the filing of a notice of appeal.

13                  Whilst I accept Mr Jin’s evidence that he was not aware of a time limitation, I do not accept that he was incapable of making his own inquiries.  I regard his explanation for the delay as very weak. 

14                  Nevertheless, the University has not demonstrated any prejudice to it should leave be granted.  As was said by a Full Court in WAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 399 at [7], the discretion to extend time is given for the purpose of enabling the court to do justice between the parties.  So, for example, where the delay is short and no injustice will be occasioned to the respondent, justice will usually be done if the extension of time is granted.  However, as the Full Court went on to say at paragraph [9], an extension of time in which to file an appeal will not be granted without a consideration of the appellant’s prospects of successfully prosecuting the appeal.

15                  In the circumstances, I will not reject Mr Jin’s application on the basis that he has not provided a satisfactory explanation.  I now turn to consider whether or not Mr Jin has a prospect of successfully prosecuting his appeal. 

prospect of success

16                  To demonstrate a prospect of success on the appeal, I need to be satisfied that there is a prospect that Mr Jin will convince a Full Court that the Federal Magistrate’s decision is attended by legal, factual or discretionary error.  For the following reasons, Mr Jin has not demonstrated a prospect of success on appeal.

17                  I turn first to consider the evidence before O’Dwyer FM.  The Federal Magistrate had before him an affidavit of Mr Kanis of 2 December 2009 upon which the University relied.  Orders had been made by O’Dwyer FM that a pre-trial mediation conducted by a Registrar of the Court take place.  As Mr Kanis’ affidavit sets out, Mr Jin was told by the Court on 6 July 2009 that a pro bono service was not available through the Court.  After the hearing on 6 July, Mr Kanis provided Mr Jin with contact details of other pro bono services and Mr Jin apparently made other efforts on his own account to obtain legal representation.

18                  The mediation, initially due to take place on 16 September, was adjourned to 19 November 2009.  That occurred at Mr Jin’s request.  The parties attended a mediation on 19 November 2009 before a Registrar of the Court.  An interpreter was provided for Mr Jin.  The mediation commenced at about 10.15 am, initially in brief private sessions, with Mr Jin and the interpreter and Mr Kanis in separate rooms, and then in an open session with all parties and the Registrar present.  Thereafter it proceeded in private sessions with the Registrar.  Mr Kanis’ evidence was that he did not get a break for lunch although he understood that Mr Jin and the interpreter did get a break for lunch at around 1.30 pm.

19                  Mr Kanis’ evidence before the Federal Magistrate was that commercial terms of settlement were reached at about 4.30 pm.  His evidence was that after he completed drafting a deed of settlement and release by hand, he then read the deed of settlement and release aloud before the Registrar and Mr Jin and Mr Jin’s interpreter in an open session.  He asked Mr Jin if he understood the terms of the deed of settlement and release.  Mr Kanis’ evidence was that Mr Jin confirmed that he understood all of the terms.  Mr Jin did not ask his interpreter to clarify any of the terms of the deed of settlement and release and there was no further negotiation.  Mr Kanis deposed that after Mr Jin approved the deed of settlement and release, Mr Jin signed the deed of settlement and release and that Mr Kanis did so on behalf of the University.

20                  The mediation concluded at about 5 pm on 19 November 2009.  Mr Kanis further deposed that at no time during the mediation did he hear Mr Jin request, nor did anyone else convey to him a request from Mr Jin, that the mediation be adjourned or a break taken on account of Mr Jin’s health or desire to seek advice or for any other reason. 

21                  The terms of the settlement agreement were before the Federal Magistrate.  Relevantly, the terms of settlement acknowledged that Mr Jin had issued proceedings in the Federal Magistrates Court against the University and that Mr Jin and the University have agreed to discontinue the proceedings in accordance with the terms thereafter outlined in the agreement.  One of those terms provided for a full and final mutual release by the parties of all claims and demands and proceedings, including costs, of all disputes between the parties in connection with the proceeding in the Magistrates Court, numbered MLG642 of 2009.  The agreement bears the signatures of Mr Jin and Mr Kanis. 

22                  None of the evidence to which I have referred appears to have been challenged by Mr Jin in the proceedings before the Federal Magistrate.  Mr Jin did not put any affidavit before the Federal Magistrate.  He did, however, hand up a document which appears at page 48 of the attachments to his affidavit made on 6 April 2010 before this Court.

23                   By that document, Mr Jin told the Federal Magistrate that he had been unable to carefully study all of the University’s affidavits before the mediation; that he was rushed into the mediation; that what he calls “the draft” (but what appears to be a reference to the settlement agreement) was provisional, not translated and that it did not truly represent his feelings.  He referred to the stress in the mediation.  He said that he was not allowed to have a lunch although he was allowed a 20 minute break and he went on to say that he did not dare to take a telephone call that was scheduled for him at 2 pm. 

24                  At the hearing before the Federal Magistrate Mr Jin made submissions, including statements from the bar table (the University indicating that it was prepared to have the Magistrate take into account those statements without Mr Jin giving sworn evidence).  In summary, Mr Jin emphasised that he had not been prepared for the mediation; said that he had been absent from Australia between July and October 2009 and that that had impacted upon his capacity to get legal representation; that he did want to leave the mediation, was thinking of doing so but in the end did not; and that he felt exploited by the University. 

25                  I now turn to the decision of O’Dwyer FM.  The Federal Magistrate accepted that the parties had reached an agreement that was signed off on 19 November 2009 and that subsequently Mr Jin has sought to resile from that agreement, in broad terms, on the basis that the consent he gave to the agreement was not an informed consent and that it was brought about at the end of an arduous mediation which amounted in real terms, to a denial of a willing consent on the part of Mr Jin.

26                  The Federal Magistrate noted that Mr Jin had attended the mediation unrepresented and that Mr Jin claimed to have been taken by surprise and claimed that he was unprepared for the mediation.  The Federal Magistrate referred to Mr Jin’s complaint about the length of the mediation and the limited period of 20 minutes given to him for lunch.  The Federal Magistrate concluded at [7]-[10]:

…………

[7]        I am satisfied that the terms of settlement were read to him and he acknowledged his understanding.  I am further satisfied that he never expressed any confusion about the settlement reached, nor did he ask for an adjournment, or a break that was denied him (See affidavit of Andrew Peter Kanis affirmed 2 December 2009).

[8]       I am satisfied that the consent was reached voluntarily and that it was an informed consent.  Because of that, I am satisfied that the proceeding before the court was compromised and there is no basis for me to proceed today;

…………….

[10]      For the above reasons, I am satisfied the agreement reached by the parties at the mediation is one enforceable by the respondent and is not invalidated for any reason proffered by the applicant.  That agreement, in part, required the parties to execute consent orders to withdraw the proceedings. So I intend to make orders one to three as has been presented to me in the minute from the respondent.

27                  The Federal Magistrate made the following orders:

(1)        The Application filed 29 May 2009 and each of the orders sought in Section C of the accompanying Statement of Claim be discontinued.

(2)        The Response dated 26 June 2009 and each of the orders sought in paragraphs 6 and 7 therein be discontinued.

(3)        There be no order as to costs.

(4)        Pursuant to s. 61 of the Federal Magistrates Act (1999), in order to prevent prejudice to the administration of justice, the parties are prohibited from publishing the terms and conditions of the terms of settlement reached on 19 November 2009.

28                    Mr Jin has filed a draft notice of appeal.  In the proceeding today I asked Mr Jin to explain to me his grounds of appeal and in particular, to identify what error he contends was made by the Federal Magistrate.  Mr Jin indicated that he does not seek to rely on ground number 1 of the draft grounds of appeal and I need not deal with that further.  Ground number 2 of the grounds of appeal is in the following terms:

The “agreement” was not legally completed for the order made on 3 December 2009.

29                  Mr Jin explained what he meant by this ground of appeal.  He explained that it was his contention that the Federal Magistrate had erred in concluding that there was a settlement, by failing to take into account that Mr Jin had refused to sign the consent orders for the discontinuance of the proceedings in the Federal Magistrates Court.  He said he relied on Division 13.04 of the Rules of the Federal Magistrates Court which is in the following terms:

Application for order by consent

(1)  The parties to a proceeding may apply for an order in terms of an agreement reached about a matter in dispute in the proceeding by filing a draft consent order signed by each party.

(2)  The draft consent order must state that it is made by consent.

(3)  The Court may make such orders as the Court considers appropriate in the circumstances.

(4)        If a Registrar has power to make the order, the Registrar may, unless the Registrar considers that the matter should be brought before the Court, make an order in accordance with the terms of the draft consent order.

30                  There was evidence before the Federal Magistrate that Mr Jin had refused to sign the draft consent orders presented to him by the University.  However, the issue agitated by this ground of appeal was not raised by Mr Jin and, unsurprisingly, it was not dealt with by the Federal Magistrate in his decision.

31                  Even if leave to raise a new issue on appeal was granted, Mr Jin is bound to fail on this argument.  The terms of settlement were not contingent upon consent orders being agreed to.  The terms of settlement do not expressly refer to consent orders at all although an implication about an obligation to approach the court by consent arises from the terms of the settlement made.  The request made to Mr Jin to sign consent orders was no more than a mechanism to effectuate the settlement agreement and Mr Jin’s failure to consent was of no consequence to the validity of the settlement agreement.  The Rules of the Federal Magistrates Court are of no assistance to Mr Jin.

32                  Next, Mr Jin asserts that the Federal Magistrate erred by failing to take into account that during the mediation, the mediator gave him advice.  He concedes, however, that this was a matter that he did not raise with the Federal Magistrate.  In fact, the transcript does not suggest Mr Jin made any complaint at all about the conduct of the mediator save for his point that the mediation was long and the lunch break afforded to him short.  Accordingly, Mr Jin, having not raised the issue, the learned Federal Magistrate could not have erred in relation to it.

33                  Mr Jin says further that the Federal Magistrate erred by failing to make an inquiry as to his health and by failing to suggest that the hearing be adjourned.  The short answer to these complaints is that these were not matters for the Federal Magistrate to raise and he made no error in not doing so.  If Mr Jin wanted to raise his health, either for the purpose of challenging what occurred at the mediation or for the purpose of having the hearing before the Federal Magistrate adjourned, he should have done so.  The material he has put before me in relation to his health (which was not put before the Federal Magistrate), relates to his physical condition, not his mental capacity to comprehend.  Even if it had been presented to the Federal Magistrate, it would not have been a basis upon which the Federal Magistrate could have come to the view that the settlement agreement made was thereby vitiated. 

34                  Ground 3 of the draft notice of appeal says:

The respondent covered relevant information (breached its promise on 6 July).

35                  Mr Jin explained that this ground related to the Federal Magistrate’s failure to consider the University’s failure to provide Mr Jin information as to the extent of use of his copyright by the University.  Mr Jin said that that failure was contrary to a promise made to him by the University on 6 July 2009.  Again, Mr Jin concedes that this matter was not raised with the Federal Magistrate.  In any event, I fail to see the relevance of it to the validity of the settlement agreement. 

36                  It is obvious from the submissions made to the Federal Magistrate and those made to me, that Mr Jin unfortunately does not appreciate that the law generally treats an agreement made between parties as binding and that in only very limited circumstances does the law recognise that a person who has made an agreement should not be held bound to it. 

37                  Those circumstances do not, without more, encompass the matters upon which Mr Jin seeks to rely upon such as stress, confusion, unpreparedness, lack of legal advice or a lack of understanding about legal processes.  Agreements may be vitiated by duress, unconscionable dealing, undue influence, misleading or deceptive conduct or other forms of unfair dealing recognised by the law. 

38                  Ultimately, the Federal Magistrate came to the view that nothing had been put before him which vitiated or rendered invalid the settlement agreement made between Mr Jin and the University.  He made no error in that respect.  Mr Jin has not demonstrated that if leave were granted, his appeal has a prospect of success. 

39                  It is unfortunate for Mr Jin and I understand his distress. However, he made and signed an agreement which, despite the fact that he thinks it unfair, is an agreement which he is bound to honour as a matter of law.

40                  The University has indicated that it does not seek an order for its costs of this application. 

41                  I will dismiss the application with no order as to costs. 

Associate:

Dated:         14 May 2010