FEDERAL COURT OF AUSTRALIA

Ejueyitsi v Bond University [2014] FCA 587

THE COURT ORDERS THAT:

                     1.    The applicant’s application for an extension of time to seek leave to appeal and for leave to appeal be dismissed.

 2.    The applicant pay the respondent’s costs of and incidental to the application.

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

REASONS FOR JUDGMENT

1    The applicant seeks an extension of time to seek leave to appeal and leave to appeal from an order of Judge Jarrett of the Federal Circuit Court given on 17 May 2013. The order that the applicant seeks to challenge is an order that he pay the respondent’s costs of and incidental to a proceeding that his Honour had previously summarily dismissed, such costs fixed in the sum of $11,171.09.

2    Section 24(1)(d) of the Federal Court of Australia Act 1976 (Cth) provides that the Federal Court has jurisdiction to hear and determine appeals from judgments of the Federal Circuit Court exercising original jurisdiction under a law of the Commonwealth. Section 24(1A) provides that an appeal shall not be brought from an interlocutory judgment unless the Federal Court or a judge of the Federal Court gives leave to appeal. An order dealing with costs, even if it disposes of the only remaining dispute between the parties, is interlocutory: Kyriackou v Australian Securities and Investments Commission [2010] FCA 253 at [13]. Accordingly, the applicant requires leave to appeal against the costs order.

3    The Court has a wide discretion as to whether to grant leave to appeal from an interlocutory judgment, but generally leave will not be granted unless the decision in question is attended with sufficient doubt to warrant the grant of leave and substantial injustice would result from a refusal of leave to appeal: DÉcor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 399; Minogue v Williams [2000] FCA 125 at [19]. An application for leave to appeal against a costs order is rarely granted: Merit Protection Commissioner v Nonnemacher (1999) 86 FCR 112 at [22]; Rickus v Motor Trades Association of Australia Superannuation Fund Pty Limited [2010] FCAFC 16 at [113].

4    Rule 35.13 of the Federal Court Rules 2011 (Cth) requires the person who wants to apply for leave to appeal to file the application within 14 days after the date on which the judgment was pronounced. The applicant seeks an extension of time to seek leave to appeal pursuant to r 35.14(1) of the Federal Court Rules. The success of his application for an extension of time will depend upon whether he has provided a satisfactory explanation for the delay and whether he can demonstrate that there is some prospect of success in the proposed appeal: Wilson v Alexander (2003) 135 FCR 273 at [24]-[26].

5    It is necessary to set out something of the history of the proceedings between the applicant and the respondent. The applicant commenced proceedings against the respondent on 7 February 2012 in the Melbourne Registry of the Federal Magistrates Court, as it was then called. The applicant had been enrolled as a student at the respondent’s university and blamed his failure in certain subjects upon his lecturers and tutors. He sought external review of his results, but that was refused. The applicant then brought his proceedings, claiming damages for breach of the Australian Consumer Law (Sch 2 of the Competition and Consumer Act 2010 (Cth)) and breach of contract and negligence.

6    On 21 March 2012, Turner FM (as he then was) transferred the proceedings to the Brisbane Registry of the Federal Magistrates Court upon the respondent’s application. On 20 September 2012, Jarrett FM (as he then was) summarily dismissed the proceeding pursuant to r 30.10(a) of the Federal Magistrates Court Rules 2001 (Cth).

7    The applicant then applied to the Federal Court for an extension of time to seek leave to appeal and for leave to appeal against the order summarily dismissing the proceeding. On 20 December 2012, Logan J ordered that the application for an extension of time to seek leave to appeal be dismissed.

8    On 17 October 2012, the respondent applied to the Federal Magistrates Court to recover its costs of the proceeding pursuant to r 21.02(1) of the Federal Magistrates Court Rules. On 4 March 2013, the costs application was heard by Judge Jarrett. The applicant did not appear and costs were awarded against him. The applicant then applied to have that order set aside and, on 6 May 2013, Judge Jarrett ordered that the order be set aside. Following a further hearing on 17 May 2013, Jarrett J decided that the applicant should pay the respondent’s costs fixed in the sum of $11,171.09, such sum to be paid within 28 days.

9    On 27 November 2013, the applicant filed an application in the Federal Court seeking leave to appeal against the costs order. He discontinued that application on 21 February 2014.

10    On 5 March 2014, following the applicant’s non-compliance with the costs order and apparent failure to comply with a bankruptcy notice, a creditor’s petition was filed by the respondent in the Federal Circuit Court. The applicant then filed the present application on 10 April 2014, seeking an extension of time to seek leave to appeal and leave to appeal.

11    The applicant has not provided any explanation for his delay in filing the present application. As I have indicated, he had commenced an application seeking the same relief, but had then discontinued it. He offered no explanation for why the initial application had been discontinued and for the delay between that discontinuance and filing the present application. I would refuse the application for that reason alone.

12    In addition, however, I do not consider that any appeal against the costs order would have sufficient prospects of success to warrant an extension of time or leave to appeal. The applicant’s proposed grounds of appeal are as follows:

1.    The costs discretion was inaccurate and did not take into account the effect of the powers of the rules of the court into account with other factors in awarding the cost and miscarried

2.    There was irregularities in cost application filed by the respondent

3.    The court may have examined judicially the cost in line with the judgment of 17th May 2013

but did not take into account the effect of the errors, apparent omissions, substantial impact of the judgments had on before the cost decision given the case history

4.    There was departure from usual rule of justice

[Errors in original.]

13    As argued, the applicant relied upon only one ground. He argued that Judge Jarrett had ruled, in giving summary judgment, that the Federal Circuit Court had no jurisdiction to hear and determine his proceeding. The applicant’s argument continued that, if the Court had no jurisdiction to hear and determine the proceeding, the Court could have no jurisdiction to entertain the application for costs brought by the respondent.

14    In his reasons for summarily dismissing the applicant’s proceeding, Judge Jarrett did say, “What is clear is that unless he has a cause of action which is within the jurisdiction of this Court, his claims for damages for negligence and breach of contract cannot succeed.” His Honour then noted that the applicant had sought to bring his proceeding within the jurisdiction of the Federal Circuit Court by relying on s 18 of the Australian Consumer Law. Judge Jarrett did not decide the case on the basis that the court lacked jurisdiction to hear and determine the proceeding. Rather, his Honour held that the applicant’s claim under the Australian Consumer Law had no reasonable prospects of success, that his Honour was not persuaded that the applicant could establish any relevant duty of care in respect of his negligence case and his Honour could see no basis for the alleged breach of contract. In other words, his Honour held that the proceeding had no merit, not that the Court lacked jurisdiction.

15    In any event, s 79(2) of the Federal Circuit Court of Australia Act 1999 (Cth) provides:

The Federal Circuit Court of Australia or a Judge has jurisdiction to award costs in all proceedings before the Federal Circuit Court of Australia (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which any other Act provides that costs must not be awarded.

16    Therefore, even if Judge Jarrett had dismissed the proceeding because the Federal Circuit Court lacked jurisdiction, he would still have had jurisdiction to award costs.

17    Further, the applicant has not satisfied me that he has prospects of demonstrating any other error on appeal of the type described in House v The King (1936) 55 CLR 495 at 504-505. In these circumstances, the application should be dismissed with costs.

Associate:

Dated:    6 June 2014