FEDERAL COURT OF AUSTRALIA

Ezekiel-Hart v Law Society of the Australian Capital Territory [2013] FCA 725

THE COURT ORDERS THAT:

1.    The application to extend time within which to seek leave to appeal from the Court’s judgment of 25 March 2013 be refused.

2.    The applicant pay the respondents’ costs.

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

REASONS FOR JUDGMENT

1    The applicant, Mr Ezekiel-Hart, seeks leave to appeal from a judgment given on 25 March 2013 (Ezekiel-Hart v Law Society of the Australian Capital Territory [2013] FCA 257), in which it was ordered that the applicant’s application to amend his statement of claim filed on 26 November 2012 be dismissed and that the proceeding be wholly dismissed.

2    As the application for leave to appeal was filed out of time on 31 May 2013, the applicant also seeks an extension of time within which to seek that leave.

3    There is no dispute that leave to appeal is required and that, accordingly, an extension of time within which to seek that leave is required as a threshold matter.

Background: the applicant’s fundamental complaint

4    The proceeding before the primary judge was commenced on 26 November 2012 when the applicant filed an originating application supported by a statement of claim. The claims for final relief in the originating application were expressed as follows:

1.    damages for loss of employment caused by the respondents reckless acts and omissions and breach of duty of care owed to the Applicants

2.    damages for loss of reputation caused by the respondents acts or omissions arising from loss of employment and business

3. damages for loss of business caused by respondent reckless and dishonest acts and omission.

4.     damages for loss of income caused by respondent failure to observe duty of care and reckless acts and omissions of the respondents

5.    damages for detriment suffered due to ill health caused by acts and or omissions of the respondent and failure to take care and warn the Applicant before loss of employment and business.

6. exemplary, aggravated and special damages for knowingly or negligently adopt acts or omissions and reckless as to hardship the loss of employment will cause the Applicant and failure to investigate the 2nd Respondent recommendation before causing the Applicant to loss employment and business. In light of the Respondents expertise and knowledge, the Respondents deliberately deny the Applicant procedural fairness and natural justice to inflict hardship unexpectedly to the Applicant by causing him to loss employment and business at the same time and become helpless and fall sick as a result of unexpected simultaneous loss of business and employment.

7. damages for breach of common law duty of care, breach of section 117 of the Commonwealth Constitution, Section 8 of the Discrimination ACT 1991 (ACT), Civil Law (Wrongs) Act 2002 ch 4(ACT), s.9 Racial Discrimination Act 1975 (Cth) and other statutes named in the statement of claim.

8. any other Orders or damages that the court deemed appropriate in the interest of justice. The Respondents acts and omissions causing loss and damages to Applicant’s health, business and employment cannot be demonstrably justified.

5    The statement of claim is attached to the primary judge’s reasons.

6    In his reasons, the primary judge summarised “the applicant’s fundamental complaint” as follows:

4    In 2002, the applicant graduated from the University of Tasmania with a law degree. Shortly thereafter, he moved to Canberra. In 2003, he was admitted as a solicitor in the Australian Capital Territory.

5    In 2008, the applicant decided to establish his own law firm. In order to practise on his own account, the applicant was required to hold a current unrestricted practising certificate. By letter dated 11 August 2008 sent to the Law Society of the Australian Capital Territory (the Law Society), which is the first respondent in this proceeding, the applicant applied for an unrestricted practising certificate. In the period from about 2003 until August 2008, the applicant had worked as an employed solicitor with a restricted practising certificate.

6    In September 2008, the Law Society refused to issue an unrestricted practising certificate to the applicant until such time as he had satisfactorily completed the Society’s Practice Management Course. The applicant had enrolled in the July/August 2008 Practice Management Course but had failed to complete that course to the satisfaction of the Law Society. The applicant contends that he should have been assessed as having passed that course but was unfairly prevented from doing so by those who ran the course.

7    The applicant believes that he was denied a pass in the July/August 2008 Practice Management Course and then denied an unrestricted practising certificate for the 2008–2009 Practice Year because certain individuals (officers and employees of the Law Society) conspired to prevent him from being given an unrestricted practising certificate and otherwise acted unlawfully for the purpose of denying to him his legitimate entitlement to such a practising certificate. He has sued those individuals whom he holds responsible for what occurred: The second respondent (Mr Reis), who was employed by the Law Society as its Professional Standards Director; the third respondent (Mr King), who was employed by the Law Society as its Executive Director; and the fourth respondent (Mr Barnett), who was the Law Society’s President at the relevant time.

7    To these facts can be added the uncontroversial fact that the first respondent subsequently issued the applicant with an unrestricted practising certificate, with effect from 1 July 2009.

Proceedings in the Supreme Court of the ACT

8    On 17 March 2009, the applicant commenced a proceeding in the Supreme Court of the Australian Capital Territory (the Supreme Court) against the current respondents claiming damages which he alleged flowed from the delay in issuing him with an unrestricted practising certificate (the 2009 proceeding). The respondents applied to strike out the claim and sought summary judgment. On 31 August 2009, the Supreme Court (Higgins CJ) acceded to that application and entered judgment for the respondents. The applicant appealed to the Court of Appeal. On 19 March 2010, the appeal was dismissed. The applicant sought special leave to appeal to the High Court. On 29 September 2010, special leave was refused. The applicant then filed an application seeking orders setting aside the original judgment. On 2 September 2011, that application was dismissed by Higgins CJ.

9    On 7 September 2011, the applicant commenced a fresh proceeding in the Supreme Court against the respondents (the 2011 proceeding). This proceeding was based on substantially the same allegations and causes of action that had been pleaded in the 2009 proceeding. The applicant obtained default judgment against the respondents. However, on their application, the default judgment was set aside. The respondents then applied to strike out the claim and sought summary judgment. Amongst other things, the respondents said that the 2011 proceeding was an abuse of process because it was substantially identical to the 2009 proceeding. The applicant also sought to appeal from the order setting aside the default judgment. It is not necessary to deal with that application in these reasons, save to note that it was unsuccessful. On 29 June 2012, Refshauge J struck out the statement of claim in the 2011 proceeding and entered judgment for the respondents.

10    In doing so, his Honour made a number of key findings. First, the first respondent did not owe the applicant any duty of care, on the facts pleaded by the applicant. Secondly, the allegation in the statement of claim that the second, third and fourth respondents “closed” the applicant’s business could not be sustained and, in any event, that allegation was unlikely to lead to any damages being recoverable. Thirdly, s 587A of the Legal Profession Act 2006 (ACT) (the Legal Profession Act) was a complete answer to the applicant’s claims. Section 587A provides that a person is not civilly liable for anything done or omitted to be done honestly and without recklessness in the exercise of a function under the Legal Profession Act or in the reasonable belief that the act was in the exercise of a function under that Act. No allegation had been made that the respondents were not acting in the exercise of a function under the Legal Profession Act or that any of the respondents had acted dishonestly or recklessly. Fourthly, the applicant’s various other claims did not provide a remedy. Fifthly, the 2011 proceeding was an abuse of process. In this connection, Refshauge J noted that:

•    despite attempts to appeal against the judgment in the 2009 proceeding and to seek to have it set aside, the applicant had not been successful;

•    based on his independent assessment, the statement of claim in the 2011 proceeding disclosed no reasonable cause of action; and

•    the causes of action pleaded in the statement of claim in the 2011 proceeding were relevantly identical to causes of action pleaded in the statement of claim in the 2009 proceeding.

The proceeding in this Court: application to strike out and for summary dismissal

11    By an interlocutory application filed on 13 December 2012, the respondents sought to strike out the originating application and statement of claim that had been filed in this Court on 26 November 2012.

12    The respondents relied on rule 16.21(1) of the Federal Court Rules 2011 (Cth) (the Rules), which provides:

    A party may apply to the Court for an order that all or part of a pleading be struck out on the ground that the pleading:

(a)     contains scandalous material; or

(b)     contains frivolous or vexatious material; or

(c)    is evasive or ambiguous; or

(d)     is likely to cause prejudice, embarrassment or delay in the proceeding; or

(e)     fails to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading; or

(f)     is otherwise an abuse of the process of the Court.

13    They also sought an order under rule 26.01(1) of the Rules that the proceeding be dismissed. Rule 26.01(1) provides:

    A party may apply to the Court for an order that judgment be given against another party because:

(a)    the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding; or

(b)    the proceeding is frivolous or vexatious; or

(c)     no reasonable cause of action is disclosed; or

(d)     the proceeding is an abuse of the process of the Court; or

(e)     the respondent has no reasonable prospect of successfully defending the proceeding or part of the proceeding.

14     The interlocutory application was fixed for hearing on 7 February 2013. Prior to that day, the applicant sent an email to the Chambers of the primary judge in which the applicant expressed some difficulties he expected to have if the matter were to proceed on 7 February 2013. On 7 February 2013, the respondents served written submissions on the applicant in support of their application that the proceeding be struck out and dismissed.

15    On 7 February 2013, the primary judge required the respondents to make all their oral submissions in support of the orders sought in the interlocutory application. His Honour then made directions for the filing and service of written submissions by the applicant. These submissions were to be responsive to the respondents’ written and oral submissions in support of their interlocutory application. His Honour made a direction concerning written submissions in reply by the respondents. The hearing of the interlocutory application was adjourned to, and completed on, 5 March 2013.

16    At the hearing on 5 March 2013, the applicant sought leave to amend his statement of claim by including two additional paragraphs. This proposed amendment was foreshadowed on 4 March 2013 and was in the following terms:

59.    The Law Society and others’ (the Respondents) conducts, acts or omission was deceptive, misleading and unconscionable in all circumstances and contrary to sections 4, 18, 22, 21, 20 and 151(1)(m) of the Australian Consumer Law, Schedule 2 of the Competition and Consumer Act 2010, sections 7 and 11 of the Fair Trading (Australian Consumer Law) Act 1992.

60.    The respondents conducts, acts, or omission was contrary to section 98(1)(c) and (d) of the Competition and Consumer Act 2010 in that the plaintiff/applicant was treated less favourably and in terms disadvantageous to the plaintiff, and the Respondents did act in a manner to coerce and harass the plaintiff contrary to section 168 of the Australian Consumer Law, Schedule 2 of the Competition and Consumer Act 2010, sections 7 and 11 of the Fair Trading (Australian Consumer Law) Act 1992.

17    It should be noted that the contraventions of the Australian Consumer Law alleged in these paragraphs range from allegations of misleading or deceptive conduct and unconscionable conduct to allegations of undue harassment or coercion in the supply of goods or services. These allegations of contravention bear no necessary or obvious relationship to any one or more of the various factual allegations pleaded in the statement of claim, although they appear to have been proposed by the applicant as alternative causes of action embodying his fundamental complaint. Inexplicably, the proposed amendment also introduces an apparent allegation arising under the Competition and Consumer Act 2010 (Cth) (the Competition and Consumer Act) concerning the withholding of goods in the context of resale price maintenance.

The primary judge’s reasons

18    In his reasons, the primary judge set out the history and nature of the 2009 proceeding and the 2011 proceeding. His Honour then made a number of important observations about the way in which the applicant had pleaded his case in this Court.

19    First, his Honour observed that it was readily apparent from a perusal of the statement of claim that the applicant had again pursued his fundamental complaint, amplified in much the same way as it had been in the 2009 proceeding and the 2011 proceeding.

20    Secondly, his Honour observed that the statement of claim in this proceeding included an additional allegation, namely, that the second respondent had acted dishonestly and recklessly. His Honour noted that this allegation had not been supported by particulars. He said that he would not permit the applicant to make that allegation without providing detailed particulars of it. In that connection, his Honour observed (at [37]):

… It seems to me that Mr Ezekiel-Hart has merely made that allegation in order to defeat an argument based upon s 587A of the LPA Act which was one of the matters relied upon by Refshauge J in his Reasons for Judgment to which I have referred … as justifying the summary dismissal of the 2011 proceeding. Section 587A does not, of itself, provide a cause of action in favour of an aggrieved person. Rather, it provides an immunity to officers and employees of the Law Society provided that they do not act dishonestly or recklessly.

21    I also note that another paragraph of the statement of claim makes a rolled-up allegation that the conduct of all the respondents was “dishonest, reckless and contrary to s 587A of the Legal Profession Act”. That allegation is not supported by particulars.

22    Thirdly, his Honour observed that the primary cause of action relied upon by the applicant was, once again, the tort of negligence.

23    Later in his reasons, the primary judge said:

52    There is no doubt that Mr Ezekiel-Hart is seeking to litigate in this Court claims for relief and grievances which have been twice dismissed in the ACT Supreme Court. Furthermore, in the case of the 2009 proceeding, all possible appeals have now been exhausted. In the case of the 2011 proceeding, one level of appeal has been availed of. Mr Ezekiel-Hart did not try to take that matter to the High Court.

53    This Court, like other superior courts, has an implied incidental power to prevent abuse of its processes. One such abuse is to invoke the procedures of the Court to attempt to relitigate controversies which have already been decided by the Court. This principle is not confined to circumstances where the prior determination is one made by this Court. It would be an abuse of the processes of this Court for a party to bring proceedings in this Court in order to relitigate controversies which have already been decided by a Supreme Court of a State or Territory in Australia or, for that matter, a State District or County Court.

24    The primary judge then quoted from the reasons for judgment of French J (when in this Court) in Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699 at [59]-[70]. The quoted passage discusses the circumstances in which the Court will intervene to prevent an abuse of its process by the relitigation of disputes previously determined in court proceedings. The primary judge observed that the principles discussed in Spalla were apt to be applied in the present case. In that connection, his Honour again noted that there was no difference in substance between the case sought to be made in the present case and the case the applicant had sought to make in the 2009 proceeding and the 2011 proceeding.

25    Further in that connection, his Honour said:

59    The substance of the decision made by Higgins CJ on 31 August 2009 was that Mr Ezekiel-Hart’s proceeding should be dismissed because the pleadings which he had filed disclosed no reasonable cause of action. Refshauge J dismissed the 2011 proceeding for a number of reasons. Those reasons included, once again, that the pleadings filed in the 2011 proceeding did not disclose a reasonable cause of action.

60    Although there has been no trial in the ACT Supreme Court of the case which Mr Ezekiel-Hart seeks to have determined, that Court has nonetheless determined that his fundamental complaint does not give rise to any arguable cause of action. That is the matter which has been twice determined against him. Given that I have come to the conclusion that the case which he seeks to litigate in this Court is, in substance, the same case, it follows that the ACT Supreme Court has twice determined that the case which Mr Ezekiel-Hart seeks to litigate in this Court has no prospects of success.

61    In my judgment, although there has been no trial “on the merits”, the principles explained by French J in Spalla apply with equal force in the circumstances of the present case. It is an abuse of the processes of this Court for Mr Ezekiel-Hart to engage this Court’s jurisdiction for the purpose of relitigating a case which the ACT Supreme Court has twice held ought to be summarily dismissed because it has no prospect of succeeding.

26    For these reasons, the primary judge dismissed the whole of the proceeding as an abuse of the Court’s process.

27    Further, the primary judge refused leave to the applicant to amend his statement of claim. His Honour did so for two reasons. First, the making of the proposed amendment could not overcome the fundamental difficulty that the commencement of the present proceeding was an abuse of the Court’s process. Secondly, as a matter of form, the proposed amendment did not contain an arguable basis for relief in relation to the statutory causes of action sought to be relied on.

The draft notice of appeal

28    The applicant’s draft notice of appeal contains the following grounds:

1.    His Honour by exercising his discretion to dismiss my Originating Application and constitutional questions did overrides my rights brought under the federal law which was never before any Court, and in effect denied me natural justice and amendment to my statement of claims.

2.    His honour err in law and in fact in that he misapplied or miscomprehend the case of Spalla v St George Motor Finance Ltd (ACN 007 656 555) (No 6) [2004] FCA 1699 and the fact taken into consideration,

3.    His Honour acknowledged the fact that the matter between the parties were never tried and decided on merit in the ACT, His Honour heard that the Appellant lost his job and business for one whole year, but ask himself the wrong question in that it fail to ask himself why did the appellant lost his job and business for one year, and in the light of the admissions made by the Respondents whether the Respondent owe duty of care to the appellant and whether loss of job and business for one year was compensable?

4.    The Appellant drew His Honour’s attention to the case of Spalla but His Honour refused to allow the Appellant the opportunity to address the case and other cases submitted before the Court

5.    His Honour’s exercise of further discretion a day after his original decision to make further orders without seeking further submissions or being invited through Application of either party was bias and improper exercise of power and denied the Appellant natural justice.

6.    His Honour identified the questions and issues before the Court, heard that previous affidavits were never read in Court, saw evidence of wrong, and that no reason/s for decision was provided in relation to the issues between the parties yet declined hearing the matter.

7.    His Honour exercise of discretion to dismiss the originating Application and refused amendment put undue weight to the principles of case management, as opposed to the overriding importance of ensuring justice is done between the parties. State of Queensland & Anor v JL Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146,

8.    His Honour exercise of discretion breached the Commonwealth Constitution mandate and power of the Court to settle and decide matters between the parties. In that person acting under a statutory power cannot confer power upon himself by misconstruing the statute which is the source of his power.

The parties’ submissions

29    The parties filed written submissions. These submissions addressed the need for the applicant to seek an extension of time within which to seek leave to appeal as well as the substantive question of whether leave to appeal should be granted in all the circumstances. The parties supplemented their written submissions with oral argument on the hearing of the application. The applicant did not methodically address the specific grounds of the draft notice of appeal.

The application to extend time

30    An application for leave to appeal must be filed within 14 days after the date on which the judgment was pronounced or the order was made: r 35.13(a) of the Rules. As I have noted, judgment was given on 25 March 2013 and the applicant’s application for leave to appeal was filed on 31 May 2013.

31    In an affidavit affirmed and filed on 31 May 2013, the applicant proffered the following explanation for not seeking leave to appeal within time:

71.    I could not make this application earlier because I was very sick and compressed with family law and my children matters, making it so difficult. It was not more than two week before I brought my application to the court. The reason it was not filed at the time I brought it was because the Registry needed to confirm the state of the law relating to interlocutory orders from Sydney, on 9 May 2013.

72.    I believe that it is equitable to hear the matter and the respondents will not be unduly prejudiced. It is equitable in that, the respondents took similar long time in making application to set aside my default judgment against them, the Court allowed their application after an affidavit of Mr Phelps stating that he was on holidays and that I will not be unduly prejudiced, I was never compensated for the expenses in obtaining the default judgment. I strongly believe that it will be unfair and inequitable for the respondents with all its resources and as custodian of the law to benefit from the discretions of the court while at all times such discretion eludes me, an individual and officer of the Court. I believe the respondents will not be unduly prejudiced…

32    The applicant did not elaborate on these matters in his affidavit. As to the matters raised in [71] of his affidavit, the applicant did not seek to explain the nature of his sickness or the nature of the “family law” or “children matters” or how these matters precluded him from filing his application for leave to appeal within time or made it difficult to do so. His statement that “[i]t was not more than two week[s] before I brought my application to the court” is not correct. The application for leave to appeal was made substantially out of time. In the course of oral submissions, the applicant said that, on about 7 or 8 May 2013, he had tried to file an application for leave to appeal, but it was rejected because of his own erroneous statement of a date. There is no evidence of this fact. In oral submissions, the applicant also reiterated that the Registry had raised, on about 9 May 2013, whether leave to appeal was necessary in any event. Even if the applicant had succeeded in filing his application for leave to appeal on 7 May 2013, when he said that he first attempted to do so, his application would still have been substantially out of time.

33    As to the matters raised in [72] of his affidavit, the applicant’s argument – based on an indulgence granted to the respondents in the 2011 proceeding – provides no sound discretionary reason why time should be extended in the present case.

34    In my view, the applicant has not provided a satisfactory explanation as to why his application for leave to appeal was not filed within time. Moreover, I am not satisfied that the applicant has demonstrated a sufficient discretionary reason as to why time should be extended in the particular circumstances of this case. That view is informed, in large measure, by my assessment of the merits of the applicant’s substantive application for leave to appeal, which I will now consider.

The merits of the application for leave to appeal

35    The test for the granting of leave to appeal from an interlocutory judgment of this Court is whether the decision is attended with sufficient doubt to warrant it being reconsidered by a Full Court, and whether substantial injustice would result if leave were to be refused, supposing the decision to have been wrong: Decor Corporation Pty Ltd and Another v Dart Industries Inc (1991) 33 FCR 397 at 398-400.

36    In my view, the primary judge’s judgment, insofar as it concerns the dismissal of the proceeding as an abuse of process, is not attended by sufficient doubt to warrant reconsideration by a Full Court. In my respectful view, the primary judge identified the correct principles in his quotation from Spalla and correctly applied those principles to the case before him.

37    In Spalla, French J (at [64]-[70]) identified the finality of judicial dispositions of particular controversies as an important principle in maintaining the integrity of the system of the administration of justice. The applicant did not seek to challenge the correctness of the principles discussed in Spalla, nor did he dispute the primary judge’s finding that the applicant was seeking to relitigate in this Court claims for relief and grievances which had been dismissed twice in the Supreme Court. In his written and oral submissions, the applicant’s principal attack was that neither the 2009 proceeding nor the 2011 proceeding had been determined on the merits. Therefore, according to the applicant, the Supreme Court had not quelled the underlying controversy between the parties. Indeed, the applicant went further and argued that the primary judge had not even quelled the controversy between the parties by summarily dismissing the application.

38    There has been a judicial disposition of the controversy between the parties by the Supreme Court’s dismissal of the 2009 proceeding and, separately, of the 2011 proceeding. The applicant’s pleaded case, in each proceeding, disclosed no reasonable cause of action. In the 2011 proceeding, Refshauge J gave detailed consideration to the applicant’s pleaded claims and was satisfied that they could not be maintained. The applicant availed himself of avenues of appeal in each proceeding. He was unsuccessful in that pursuit. The applicant appears incapable of accepting these rulings, even though, as a legal practitioner with an unrestricted practising certificate, he should well-understand the nature and legal significance of them. The controversy embodied in the 2009 proceeding and the 2011 proceeding has been quelled as a matter of law. It did not require a hearing on the merits in order for it to be quelled. The applicant cannot now improve his position by simply “switching courts” to embark upon yet another attempt to litigate the same controversy. In my respectful view, the primary judge was correct to find that the commencement of the proceeding in this Court in an attempt to relitigate the same controversy was an abuse of the Court’s process.

39    The only material addition to the proceeding commenced in this Court is the now-pleaded allegation that the respondents acted dishonestly and recklessly. The primary judge was, in my respectful view, correct to treat those unparticularised assertions as having been made as no more than a pleading device employed in an attempt to circumvent, by means of mere form, the unassailable finding by Refshauge J in the 2011 proceeding that s 587A of the Legal Profession Act provided a complete answer to the applicant’s claims. On the hearing of the present application, the applicant’s answer was that the primary judge should simply have allowed the applicant’s assertions, in that form, to proceed to trial, where their merits could be determined. In my respectful view, the primary judge was plainly correct in rejecting that course. In any event, none of this gainsays the additional finding that, on the facts pleaded in the 2011 proceeding, Refshauge J had found, between the same parties, that no duty of care as alleged was owed to the applicant.

40    In my view, the primary judge’s judgment, insofar as it concerns his refusal to permit the applicant to amend his statement of claim, is not attended by sufficient doubt to warrant reconsideration by a Full Court. In my respectful view, the primary judge was correct to conclude that the form of the amendment did not raise an arguable basis for relief. The proposed amendment merely asserted contraventions of the Australian Consumer Law and did not plead material facts germane to those alleged contraventions. It is well-established that where statutory provisions of this kind are sought to be used as the foundation of a cause of action or claim for relief, it is imperative that the factual basis upon which the provisions are alleged to be brought into play is stated with appropriate clarity in the statement of claim: Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (1998) 42 IPR 1 at 3; McKellar and Another v Container Terminal Management Services Ltd and Others (1999) 165 ALR 409 at [21]-[31]; Toben v Jones (2012) 298 ALR 203 at [26]-[34]. This was not done by the proposed amendment. It is not necessary for me to engage with the applicant’s bizarre and unexplained reliance on what appears to be a resale price maintenance allegation arising under the Competition and Consumer Act.

41    Moreover, as his Honour found, the application for amendment was made in a context where the commencement of the proceeding, as revealed by the pleaded case, was an abuse of process. Plainly, the proposed amendment could not overcome that fundamental defect.

42    As I have noted above, the applicant did not methodically address the specific grounds of his draft notice of appeal. The respondents did. They submitted that grounds 1 and 4 assert, but the applicant has failed to demonstrate, a denial of procedural fairness. They submitted that ground 2 raises a bare assertion that the primary judge misunderstood or misapplied the decision in Spalla, but that this has not been demonstrated by the applicant. They submitted that grounds 3 and 6 are answered by the primary judge’s dismissal of the proceeding as an abuse of process. They submitted that ground 5 is wholly without substance. It relates to a complaint that, after determining in the reasons that the respondents were entitled to indemnity costs, it was an error for the primary judge to thereafter make an order giving effect to that decision without inviting further submissions on that question. They submitted that ground 7 is no more than a formulaic invocation of a principle stated in The State of Queensland and Another v J L Holdings Pty Limited (1997) 189 CLR 146 which ignores the manner in which the primary judge actually decided the applicant’s application to amend. They submitted that ground 8 appears to be an allegation that the Court is duty-bound to conduct a hearing on the merits even when a proceeding is an abuse of the Court’s process. They submitted that that proposition cannot be sustained.

43    In general, I accept these submissions. In my view, there is no real prospect that the applicant would be able to sustain any of the draft grounds of appeal.

44    In the circumstances, it is not necessary for me to address in detail the question of whether substantial injustice would result from a refusal to grant the leave that the applicant seeks, supposing the primary judge’s decision to be wrong. It is sufficient to note that the injustice claimed by the applicant is the denial of a hearing of his claim on the merits. In the circumstances of this case, that cannot constitute substantial injustice, given that the same controversy between the parties has been twice disposed of by the Supreme Court. Moreover, I am unable to see how a refusal of leave to appeal with respect to the refusal of the applicant’s amendment application could result in substantial injustice, particularly having regard to the manifestly deficient form and peculiarities of the amendment that was proposed.

Disposition

45    The application for an extension of time within which to seek leave to appeal should be refused, with costs.

Associate:

Dated:    26 July 2013