FEDERAL COURT OF AUSTRALIA

Maiocchi v Royal Australian & New Zealand College of Psychiatrists (No 3) [2015] FCA 200

THE COURT ORDERS THAT:

1.    An extension of time in which to seek leave to appeal from orders made in the proceedings by Nicholas J be refused.

2.    The applicant’s request for a directions hearing to apply for leave to appeal against such orders be denied.

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

REASONS FOR JUDGMENT

1    The trial of this matter is listed to commence on 23 March 2015, before Griffiths J. However, the proceedings have been referred to me as duty judge to deal with a “formal request” that the proceedings be listed specially for directions so that the applicant may apply for leave to appeal against orders made on various dates by Nicholas J.

2    In order to make an application for leave to appeal against any such orders (all of which were interlocutory as I shall explain) it would be necessary for the applicant to obtain an extension of time in which to file such an application. For the reasons below, an extension of time should not be granted. A directions hearing is not necessary.

3    Consideration of an application for an extension of time in which to seek leave to appeal (or of any application for leave to appeal) arises under the appellate jurisdiction of the Court and is (subject to any contrary direction) to be dealt with by a single judge (Federal Court of Australia Act 1976 (Cth) (“the Act”), s 25(2)).

4    Section 25(2A) of the Act permits the Rules of Court to make provision for applications of that kind to be dealt with “without an oral hearing either with or without the consent of the parties”.

5    In the circumstances of the present case, having regard to the matters mentioned hereunder, I am satisfied that this is an appropriate case in which to deal with the applicant’s request without any need for an oral hearing.

6    Section 37M of the Act states the overarching purpose and a number of objectives of civil practice and procedure provisions. The objectives include:

37M    The overarching purpose of civil practice and procedure provisions

…

(2)    …

(b)    the efficient use of the judicial and administrative resources available for the purposes of the Court;

(c)    the efficient disposal of the Court’s overall caseload;

(d)    the disposal of all proceedings in a timely manner;

…

7    Section 37M(4) stipulates that the civil practice and procedure provisions include the Rules of Court made under the Act. Rule 36.41 of the Federal Court Rules 2011 (Cth) (“the Rules”) permits the Court (generally upon application) to deal with some applications without an oral hearing. They include applications for an extension of time within which to institute an appeal. The Court may exercise a power under the Rules on its own initiative (r 1.40), may make any order it considers appropriate in the interests of justice (r 1.32), may dispense with compliance with any rule (r 1.34) and may make an order inconsistent with the Rules (r 1.35).

8    The proceedings were commenced on 15 June 2012 against thirteen respondents including the Royal Australian & New Zealand College of Psychiatrists, the State of New South Wales - Northern Sydney Local Health District, the Medical Council of New South Wales, the Health Care Complaints Commission, and a number of medical practitioners, other persons and enterprises. The applicant’s claims concern allegations of racial discrimination against her in the practice of her profession. The proceedings were docketed to Nicholas J. Commencing on 19 July 2012, Nicholas J has made many interlocutory orders. Most were orders of a procedural kind. Some of those orders had final effect, even though interlocutory. It will not be necessary to refer to them all. The applicant’s request did not distinguish amongst them, although she did particularly mention orders made on 22 August 2014, to which I will refer hereunder.

9    The background to the applicant’s claims was set out by his Honour in a judgment given on 23 October 2013 (Maiocchi v Royal Australian & New Zealand College of Psychiatrists [2013] FCA 1046). In that judgment his Honour dealt with procedural and pleading issues. For reasons which his Honour set out, he dismissed the proceedings summarily against a number of individual and other respondents. So far as the remaining respondents were concerned, the applicant was required to re-plead her case.

10    Subject to leave to re-plead her case, the application and an amended statement of claim were struck out.

11    The orders made on 23 October 2013 were interlocutory orders. They could not be appealed unless leave to appeal was given. Any application for leave to appeal was required to be filed within 14 days.

12    On the morning of a directions hearing on 21 February 2014, the applicant filed an application for an extension of time in which to appeal against the orders made on 23 October 2013. Nicholas J ordered that the application be expedited for hearing.

13    On 28 March 2014, Robertson J granted an extension of time, but refused the application for leave to appeal against the orders made on 23 October 2013. No further appeal in this Court is available against those orders.

14    Nicholas J dealt with the matter further in a judgment given on 22 August 2014 (Maiocchi v Royal Australian & New Zealand College of Psychiatrists (No 2) [2014] FCA 907). His Honour recorded difficulties which had arisen for the applicant in complying with the orders that she re-plead her case. After some months of delay in complying with the orders in question, the applicant served further draft documents on 21 July 2014 but the documents bore the appearance of being incomplete and were otherwise not in a satisfactory form upon which the matter could proceed. Nicholas J recorded:

11    Dr Maiocchi is not legally represented and has no legal qualifications. She has told me on numerous occasions that she has tried to obtain legal representation but without success. There is nothing before me to indicate that Dr Maiocchi is likely to obtain legal representation in the future. However, she is intelligent and well educated, and able to understand, at least in a general sense, the substance of the complaints made about her pleading. Her main difficulty, it seems to me, stems from her desire to bring within the scope of her proceeding all manner of grievances against a large number of entities and individuals against whom she does not appear to have had any discernible cause of action.

15    Some of the remaining respondents sought summary dismissal of the claims against them. Nicholas J decided that some such claims had no reasonable prospects of success and dismissed them at that time. In respect of two medical practitioners, the first respondent and the Northern Sydney Local Health District, Nicholas J ordered that the matters should go to trial. To overcome the unsatisfactory nature of the applicant’s pleadings, Nicholas J distilled a statement of issues from her complaints so far as they concerned the respondents against whom the proceedings were to continue. Orders giving effect to those findings were made on 22 August 2014. The statement of issues appeared as a schedule to the judgment and the orders. Nicholas J fixed the matter for a five-day hearing commencing on 23 March 2015. Order 8 stated:

8.    Any application for leave to appeal from this judgment must be filed by 4.00pm, 29 August 2014.

16    No application for leave to appeal was filed against those orders.

17    The matter was listed for pre-trial directions on 11 September 2014. On that date, Nicholas J gave directions for the filing and service of outlines of evidence and the matter was listed for further directions on 20 February 2015.

18    Owing to the arrangement of business within the Court, and for reasons which were unconnected with the applicant, the matter was re-docketed to Griffiths J earlier this year on the basis that the hearing arrangements would, subject to any direction from his Honour, remain in place. At the directions hearing on 20 February 2015, Griffiths J made final directions for the preparation of the trial.

19    Notwithstanding the history to which I have referred, on 9 March 2015 the applicant wrote to the Registry, purportedly pursuant to liberty to apply granted by Griffiths J on 20 February 2015 “on the giving of 24 hours’ notice”, stating as follows:

[4] I am writing to formally request, pursuant to Order 8 of the Orders issued by His Honour Justice Griffiths on 20 February 2015, to re-list the matter for directions, so I can formally apply for leave to appeal from all the Orders previously issued by the Hon Justice Nicholas.

20    The orders made on 23 October 2013 may not be subject to any further attempt to appeal from them. The applicant has allowed the matter to go forward towards the hearing on 23 March 2015 pursuant to the orders made on 22 August 2014, the orders made on 11 September 2014 and the orders made on 20 February 2015 until, less than two weeks before the trial was to commence, the present request was made. To permit the applicant at this late stage to call into question orders made by Nicholas J last year would risk abandonment of the trial dates. In those circumstances, careful attention is needed to whether the applicant should be permitted simply to call for a fresh directions hearing for that purpose. A number of matters bear upon that evaluation.

21    The orders made by Nicholas J on 22 August 2014 and 11 September 2014 (and other orders at various times) were all interlocutory in nature. Most concerned matters of practice and procedure. A challenge to any of the orders would require leave to appeal. Under the Rules, applications for leave to appeal must be brought within 14 days of the order in question (r 35.13). The time in which to apply for leave to appeal has long since expired in every case. At a minimum, therefore, the applicant would require an extension of time to permit any application for leave to appeal to be made. It would not be open to her, as she appears to think, to simply apply for leave to appeal should another directions hearing take place, assuming an application for leave to appeal would be received orally. Normally, it would not.

22    An extension of time will not normally be granted where it would be futile to do so. For that reason, as a matter of ordinary principle, some assessment of the applicant’s prospects of obtaining leave to appeal, if an extension of time was granted, is first required whatever form such an application might take.

23    The applicant’s letter of 9 March 2015 explained the reason for her desire to now challenge the orders made by Nicholas J. The letter identified, as the foundation for her desire to apply for leave to appeal, “the existence of a genuine apprehension of bias against His Honour Justice Nicholas” which was based upon the allegation that his Honour had withdrawn from the proceedings without written explanation. The applicant contended in her letter that a written explanation was required. The applicant also contended that the fact that his Honour will no longer hear her case would be contrary to his duties as a judge and indicates that he withdrew in response to a suggestion (made by her at an earlier time) that he was biased against her. There is no foundation for any of the contentions made in the letter and none of them could afford any reason to grant leave to appeal against earlier orders.

24    In light of the reasons advanced by the applicant for her request, an oral hearing is not necessary or appropriate. The fact that the matter has been re-docketed to Griffiths J is an irrelevant circumstance. Reallocation of the proceedings to the docket of Griffiths J was, as I have indicated, unconnected with the applicant. No purpose would be served by permitting any discussion about the allocation of cases to individual judges.

25    Having regard to her own explanation for her request, in my view there is no prospect at all that if the applicant was granted an extension of time she could obtain leave to appeal to challenge the orders made on 22 August 2014, or any of the other procedural directions for the preparation of the matter for trial. It would, therefore, be futile to permit an extension of time in which to seek leave to appeal. Any listing of the matter for directions for that purpose would likewise be futile.

26    For all those reasons, I have decided, without the need for an oral hearing, to refuse an extension of time in which to seek leave to appeal against any orders made by Nicholas J and to deny the request that the matter be listed for directions for that purpose.

Associate:

Dated:    11 March 2015