FEDERAL COURT OF AUSTRALIA

May v Vero Insurance Limited [2012] FCA 1385

THE COURT ORDERS THAT:

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

2.    The Applicant is to pay the costs of the Respondent.

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

REASONS FOR JUDGMENT

1    In March 2012 Mr Stephen May filed an Originating Application in this Court seeking (inter alia) declaratory relief against Vero Insurance Limited (“Vero Insurance”). A Statement of Claim was also filed. The Statement of Claim was later amended.

2    Vero Insurance had itself commenced proceedings against Mr May in the District Court of New South Wales in December 2011.

3    On 9 July 2012 a Judge of this Court struck out Mr May’s Amended Statement of Claim and Further Amended Statement of Claim pursuant to r 16.21 of the Federal Court Rules 2011 (Cth): May v Vero Insurance Limited [2012] FCA 727. The primary Judge was of the view that Mr May’s claims were an abuse of the process of the Court. His Honour concluded that “Mr May’s defence to the proceedings raised in the District Court contains matters which are identical to the matters which he seeks to raise in his claims before this Court”: [2012] FCA 727 at [20].

4    On 11 September 2012 Mr May filed an Application for extension of time and leave to appeal. Leave is required to appeal from an interlocutory decision: Federal Court of Australia Act 1976 (Cth) s 24(1A). An order is an interlocutory order when it “… stays or dismisses an action or refuses leave to commence or proceed with an action because the action is frivolous, vexatious, an abuse of the process of the court or does not disclose a reasonable cause of action”: Re Luck [2003] HCA 70 at [9], 78 ALJR 177 at 179. An extension of time is required because any application for leave to appeal is to be made within 14 days: Federal Court Rules 2011 r 35.13(a). The grounds upon which Mr May relies in making his application were expressed as follows (without alteration):

1.    Denial of Procedural fairness

2.    A denial of natural justice

3.    Irrelevant considerations taken into account, and failure to consider the written submission.

4.    Error in Facts, as I was not a director of Belltree Constructions At all relevant times.

The first three of these Grounds are repeated in his draft Notice of Appeal.

5    Initially it was understood that both Mr May and Vero Insurance wished for the application to be resolved “without an oral hearing”: Federal Court Rules 2011 r 35.18. Thereafter there emerged uncertainty as to whether this was still the preferred course of Mr May. Attempts to contact Mr May, however, proved unsuccessful. Written submissions have been filed by both Mr May and Vero Insurance. The application for an extension of time, it is concluded, can and should be resolved “without an oral hearing”.

6    The application for the extension of time is refused. It faces at least three obstacles.

7    First, there has been no compliance with r 35.14 of the Federal Court Rules 2011, in particular r 35.14(3)(c)(ii). Rule 35.14, in its entirety, provides as follows:

Extension of time to seek leave to appeal

(1)    A person who wants to apply for an extension of time to seek leave to appeal must file an application, in accordance with Form 118.

(2)    The application may be made during or after the period mentioned in rule 35.13.

(3)    The application must be accompanied by the following:

(a)    the judgment or order from which leave to appeal is sought;

(b)    the reasons for the judgment or order, if published;

(c)    an affidavit stating:

(i)    briefly but specifically, the facts on which the application relies; and

(ii)    why the application for leave to appeal was not filed within time; and

(d)    a draft notice of appeal that complies with rules 36.01 (1) and (2);

(e)    a statement by the applicant of whether the applicant wants to have the application considered without oral argument.

Reasons for decision were published by the primary Judge on 2 July 2012. The application seeking the extension of time was filed over two months later, on 11 September 2012. Any application for leave to appeal was to be filed within 14 days after 2 July 2012. The only explanation for the delay is the Applicant’s Affidavit which states that he “attended the Federal Court to file the appeal within the specified time for an appeal” but “was advised as this was based on an interlocutory application, that the time for appeal was only 14 days …”. Had the only obstacle in Mr May’s path been a failure to comply with r 35.14(3)(c)(ii), perhaps his explanation may have been sufficient. That failure, however, does not stand alone.

8    Second, there is not considered to be any error in the reasons for decision of the primary Judge. “It is prima facie vexatious and oppressive, in the strict sense of those terms, to commence a second or subsequent action in the courts of this country if an action is already pending with respect to the matter in issue”: Henry v Henry (1996) 185 CLR 571 at 591 per Dawson, Gaudron, McHugh and Gummow JJ.

9    Third, there is no substance in any of the grounds relied upon by Mr May. Any allegation that there has been a denial of procedural fairness or natural justice has not been made out. Indeed, it follows from the evidence relied upon by Vero Insurance that Mr May was given a more than adequate opportunity to present his arguments. There is no basis upon which any conclusion could be reached that any “irrelevant consideration” has been taken into account or that Mr May was not given every opportunity to advance his submissions. Any error, assuming there to be an error, in the factual finding that Mr May was not a director of Belltree Constructions Pty Limited at all material times would not have affected the conclusion reached.

10    The grant of an extension of time in which to appeal is “not automatic”: Gallo v Dawson (1990) 64 ALJR 458 at 459 per McHugh J. The discretion to extend time is conferred “for the sole purpose of enabling the court or Justice to do justice between the parties …”: at 459 per McHugh J. See also: SZIOE v Minister for Immigration and Citizenship [2007] FCA 1176 at [26] per Gilmour J; SZLSI v Minister for Immigration and Citizenship [2008] FCA 1052 at [8]; Khondoker v Minister for Immigration and Citizenship [2012] FCA 654 at [57] per Foster J; Sochorova v Minister for Immigration and Citizenship [2009] FCA 555 at [39]-[40] per Spender J; Liprini v Liprini [2012] FCA 1103 at [26].

11    No injustice is occasioned by leaving Mr May to pursue his arguments in the District Court.

12    There is no point in extending the time in which to make an application for leave to appeal where leave would be refused.

THE ORDERS OF THE COURT ARE:

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

2.    The Applicant is to pay the costs of the Respondent.

Associate:

Dated:    6 December 2012