FEDERAL COURT OF AUSTRALIA

Finch v The Heat Group Pty Ltd (No 2) [2015] FCA 416

THE COURT ORDERS THAT:

1.    The application for leave to appeal is dismissed.

2.    The Applicant pay the Respondents’ costs of the application.

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

REASONS FOR JUDGMENT

introduction

1    By way of an application dated 19 February 2015 the applicant, Jo-Anne Finch, seeks leave to appeal from interlocutory orders of the primary judge (Jessup J) on 5 February 2015 (“the Orders”) (Finch v Heat Group Pty Ltd (No 2) [2015] FCA 88). Ms Finch is representing herself in the application. The application is opposed by the first respondent, The Heat Group Pty Ltd (“Heat Group”) which is Ms Finch’s former employer, and the second to sixth respondents who were officers or employees of Heat Group in the relevant period.

2    In the Further Amended Statement of Claim (“FASOC”) in the substantive proceeding, Ms Finch alleges various causes of action against the respondents which arise out of her employment with Heat Group, including claims of defamation, misleading or deceptive conduct, unconscionable conduct, breach of contract, negligence, breach of the Disability Discrimination Act 1992 (Cth), breach of the Occupational Health and Safety Act 2004 (Vic) and breach of the Long Service Leave Act 1992 (Vic).

3    In summary, Order 2 of the Orders provided that the proceeding be stayed, but allowed Ms Finch to apply to lift the stay by 2 March 2015 by filing a medical report stating that she was able, without risk to her health, to instruct lawyers or to represent herself in the proceeding. Order 3 of the Orders provided that if the stay was not lifted by 5 March 2015, “subject to any further order made on proper cause demonstrated”, the proceeding would stand dismissed.

4    At first blush the Orders appear unusual but it is necessary to see them in the context that a medical report of her treating psychiatrist, Dr Rigby, dated 8 March 2014 and filed by Ms Finch at that time, indicated that she suffered from a significant psychological injury. In March 2014 the proceeding was stayed by the primary judge because of Ms Finch’s psychological condition, and his Honour was later persuaded to lift the stay.

5    On 5 February 2015 Ms Finch represented herself and opposed an order for security for costs. The primary judge explained (at [1]-[2]) that the nature and scope of her submissions and the nature of the material upon which she relied gave his Honour grounds for disquiet as to the risks that might be presented by allowing the proceeding to go ahead according to normal forensic procedures. His Honour requested the production of some medical evidence as to Ms Finch’s psychological condition but Dr Rigby’s report (which was not current) was all that was available in the hearing. The primary judge said that he became concerned about what might be the consequences, both for Ms Finch and for the Court, if his Honour were to permit the case to proceed without some further medical evidence which qualified Dr Rigby’s report.

6    Ms Finch did not, within the time allowed by the Orders, file a medical report that provided that she was able, without risk to her health, to instruct lawyers or if necessary to represent herself in the proceeding. The proceeding was stayed by operation of Order 2 and stood dismissed on 5 March 2015 by operation of Order 3.

7    On 19 February 2015, Ms Finch filed the application for leave to appeal now before the Court and was successful in obtaining a stay of the Orders (Finch v The Heat Group [2015] FCA 182) (“the stay judgment”). The stay was granted on condition of Ms Finch obtaining and filing an up-to-date medical report from Dr Rigby, which she did. Unfortunately, for reasons which are hard to understand, Ms Finch then objected to the primary judge ruling on whether Dr Rigby’s report satisfied the Orders.

8    For the reasons I explain below, I have refused leave to appeal. In essence this is because the Orders are interlocutory in nature and relate to matters of practice and procedure. In my view the Orders do not, in practical terms, presently bring Ms Finch’s proceeding to an end as it is open to Ms Finch to apply to the primary judge (as his Honour invited) to rule on whether Dr Rigby’s current report satisfies Order 2. It is also open to her to apply to the primary judge for a ruling that Dr Rigby’s current report provides a reasonable basis to lift the dismissal of the proceeding. Even if the primary judge erred in the exercise of discretion (which is unnecessary to decide) I am not persuaded that substantial injustice will result if leave to appeal the Orders is refused. My view may well have been different if, except by way of the proposed appeal, there was no avenue open to Ms Finch to continue her proceeding. However, that is not the case.

the Procedural History

9    On 21 September 2012 Ms Finch filed the substantive proceeding by way of an Originating Application and Statement of Claim. On 19 April 2013 she filed an Amended Originating Application and Amended Statement of Claim. On about 8 October 2014 Ms Finch again amended her claim by filing the FASOC. The respondents have not yet been ordered to file a Defence.

10    In November 2014, the respondents filed three interlocutory applications seeking orders for security for costs, wasted costs in relation to the earlier iterations of the Statement of Claim, and to strike out the proceeding on numerous grounds including on the basis of estoppel and/or abuse of process. Those applications were listed for hearing on 5 February 2015. As I have said, Ms Finch represented herself at the hearing.

11    In the hearing the primary judge requested that the parties address him, first, on the issue of security for costs. It appears from the transcript that when the primary judge developed concerns as to the applicant’s ability to represent herself in the proceeding without risk to her health and consequences for the Court, his Honour asked Ms Finch to consider whether she would agree to the appointment of a litigation guardian. Ms Finch did not agree to that course. In this context the primary judge requested that Dr Rigby’s report of 8 March 2014 be produced, which stated:

This is to state that I have been treating Jo-Anne Finch for the past seven years for major work-related psychiatric injury and post-traumatic symptoms associated with her participation in legal processes.

Ms Finch’s condition is triggered by attendance at, reference to, and engaging in activities at Court, by interactions with individuals in the Court environment, and by consideration of certain of her earlier matters that proved to be profoundly stressful.

In my opinion, it is likely that Ms Finch will be unable [to] represent herself at a hearing listed for the 14th of March. If she should attempt to participate directly in her current state, there is a significant probability of decompensation, that is, of release of inhibitory factors mitigating distress, anxiety, depression and anguish.

I would strongly recommend that Ms Finch receive fully qualified legal representation and would advise that if possible proceedings be suspended until this is available.

(Emphasis added.)

12    Ms Finch filed Dr Rigby’s report in March 2014 in support of a submission that, at that time, she was unable by reason of psychiatric injury to defend an interlocutory application by the respondents and to prosecute her own interlocutory application both listed to be heard on 14 March 2014. Jessup J stayed the proceeding until such time as Ms Finch could provide medical evidence that she was fit to conduct the case. That stay was lifted by orders of 27 June 2014.

13    The Orders provide:

1.    Subject to the following orders, the further conduct of this proceeding be stayed until further order of the Court.

2.    Any application by the applicant for the lifting of the said stay be filed by 4:00 pm on 2 March 2015, be returnable at 9:30 am on 5 March 2015 and be supported by a certificate of a medical practitioner:

(a)    stating that, notwithstanding the statement of Dr Byron Rigby dated 8 March 2014, the applicant is able, without risk to her health and without risk of the consequences of participation in court proceedings referred to by Dr Rigby:

(i)    to provide her solicitor and counsel with instructions sufficient for them, on her behalf, to conduct a case in court involving the allegations set out in her Further Amended Statement of Claim filed on 7 October 2014; and

(ii)    should it be necessary, to represent herself in the conduct of that case; and

(b)    stating his or her opinion as to the mental state of the applicant on 5 February 2015 and whether, on that day, she was in a condition to represent herself in court.

3.    If the said stay has not been lifted by 5 March 2015, subject to any further order made on proper cause demonstrated, this proceeding stands dismissed pursuant to rules 1.40(a) and 5.23(1)(b) of the Federal Court Rules 2011 (Cth).

The application for leave to appeal

14    Ms Finch did not adduce evidence that, in response to the Orders, she tried to obtain a medical report that she was fit to instruct lawyers or to represent herself. She did not apply to lift the stay on her substantive proceeding within the period provided. As I have said, on 19 February 2015, she filed the application for leave to appeal now before the Court including an application for a stay of the Orders.

The stay application

15    On 5 March 2015 I heard and decided Ms Finch’s application for a stay. As I said in the stay judgment (at [12]-[13]), it became apparent in the course of the stay hearing that Ms Finch’s concerns regarding the Orders included a fear that it was impossible to meet their express requirements. Amongst other things, she was concerned that she would be unable to find a doctor prepared to read the lengthy FASOC as the primary judge said was necessary, unable to obtain a report in the time allowed, and unable to have a doctor provide an opinion that her future psychological condition would not impact on her future ability to instruct lawyers or represent herself.

16    During the hearing Ms Finch accepted my suggestion that she should urgently consult Dr Rigby, provide him with a short written summary of the allegations in the FASOC, seek an urgent short medical report from him, and file it with the Court. Conditional on Ms Finch’s agreement to this course, which she provided, I made the following relevant Orders:

1.    The orders of Justice Jessup of 5 February 2015 be stayed pending the hearing and determination of the application for leave to appeal.

2.    The stay is granted conditionally upon the Applicant’s agreement to:

(a)    make an appointment to consult with her treating doctor, Dr Rigby (or if he is unavailable or unwilling, another doctor) as soon as possible;

(b)    provide Dr Rigby a short summary of the main allegations in the proceeding prepared by the Applicant (comprising no more than one page in 12 point type);

(c)    request Dr Rigby to provide a short report on an urgent basis stating, as far as he is able, that notwithstanding the report of Dr Rigby dated 8 March 2014 the Applicant is able without risk to her health and without risk of the consequences of participation in court proceedings referred to in that report:

(i)    to provide her solicitor and counsel with instructions sufficient for them, on her behalf, to conduct a case in court involving the main allegations referred to above;

(ii)    should it be necessary, to represent herself in the conduct of that case; and

(iii)    stating his opinion, so far as he is able, as to the mental state of the Applicant on 5 February 2015 and whether, on that day, she was in a position to represent herself in court;

(d)    request Dr Rigby to do the best that he can with the report, providing his opinion with whatever qualifications or limitations he considers appropriate or necessary. The Court does not require or expect an opinion providing a fixed or certain prognosis regarding the Applicant’s future mental state, but simply Dr Rigby’s current opinion as to the Applicant’s mental state and his current opinion as to the likely risks and consequences referred to in the report dated 8 March 2014.

3.    The Applicant file and serve the medical report (together with the summary of the main allegations in the proceeding) forthwith upon its receipt, and advise the chambers of Justice Murphy when that has occurred.

17    I anticipated that upon the filing of Dr Rigby’s report it would be provided to the chambers of the primary judge. If his Honour decided that the report satisfied Order 2 (although outside the timeframe provided) or decided that it provided reasonable cause to lift the dismissal of the proceeding under Order 3, there was a prospect that it would be unnecessary to decide the application for leave to appeal. In my view, without causing real prejudice to either side, this course had the potential to avoid the parties and the Court wasting significant time and resources. Unfortunately, as the events unfolded, it has proved impossible to avoid the wastage.

18    On 5 April 2015 Ms Finch filed a report from Dr Rigby dated 20 March 2015 which states that “Ms Finch suffers from a Chronic Adjustment Disorder with Mixed Anxious and Depressed Mood, equivalent to Major Depressive Disorder, involving post-traumatic symptoms and severe disruption of her well-being, family life, career, and physical and mental health.” In relation to her ability to instruct lawyers and/or represent herself in the case the report stated:

Notwithstanding my report dated 8 March 2014, which stated that at that time Ms Finch was unable for health reasons to represent herself at a hearing on the 14th of March, and should if possible secure professional representation, I confirm that throughout 2015 her health is such that she is now able to participate in Court proceedings.

I consider that Ms Finch will be able to sustain the activity of such participation without risk to her health, and without being likely to suffer subsequent health consequences as a result of her legal activity.

While self-representation is an onerous task for any litigant, and can at times involve considerable duress, it is my professional opinion that Ms Finch is now sufficiently robust in her adjustment to represent herself, insofar as I am familiar from her descriptions and those of others of the activities and factors involved in this activity.

Fitness to instruct a solicitor, being a lesser burden, is also confirmed.

And also:

A key feature of Ms Finch’s response to proceedings in the past has been her emotional reaction and distress at hearing material that she considers to be erroneous, and also at reverses, both those which seem to be a product of the way the law works, and those that may have been due to omissions or errors on the part of a range of parties to the actions concerned.

Ms Finch is now more experienced in managing her own mental state and emotions, and in understanding the procedures of the law, and I consider that she is now fit to participate in proceedings, self-represent, and instruct without damage to her health and without severe consequences.

19    On 8 April 2015 my chambers provided Dr Rigby’s report to the chambers of Jessup J for his Honour’s consideration. At the same time the parties were advised that the hearing of the application for leave to appeal was adjourned to 20 April 2015.

20    On 8 April 2015 Jessup J’s chambers sent an email to the parties in the following terms:

Jessup J has seen the letter from Dr Rigby.

Would you please advise me by return whether you would agree to his Honour ruling on the question whether the letter would have satisfied Order 2 made on 5 February 2015 if it had been received within the timeframe contemplated. If there is not consensus on this point, his Honour will list the matter before normal court hours one day next week.

In your response to this email, please also indicate your position as to the appropriate steps to be taken next if his Honour rules that the letter from Dr Rigby (1) would have and (2) would not have satisfied Order 2 made on 5 February 2015.

Because of the limited period of Murphy J’s stay, please give your prompt attention to the matters referred to.

21    Initially, on 8 April 2015, Ms Finch sent an email to Jessup J’s chambers agreeing to his Honour ruling on the question posed. Ms Finch said that if his Honour ruled that Dr Rigby’s report satisfied Order 2 she would follow the Court’s orders pursuant to usual case management. She said that if his Honour ruled that the report did not satisfy Order 2 her position on the appropriate next steps would only be known when she had seen the orders and reasons.

22    On 9 April 2015 the respondents also agreed to the primary judge ruling on the question posed. If his Honour ruled that the report satisfied Order 2 the respondents conceded that the stay of the proceeding should be lifted and said that their three interlocutory applications should be relisted for hearing. If the primary judge ruled that the report did not satisfy Order 2 the respondents said that his Honour should order that the proceedings be dismissed and provide reasons for that decision.

23    At the least, in my view Dr Rigby’s report should have given Ms Finch grounds for optimism as to the outcome of a ruling by the primary judge. I note that in argument before me counsel for the respondents effectively conceded that the report satisfies the Orders.

Ms Finch’s objection to a ruling on the medical report

24    Surprisingly, on 9 April 2015 at 11:08 pm Ms Finch sent a lengthy email to the primary judge’s chambers in which she said that his Honour could not, or should not, decide whether Dr Rigby’s medical report satisfied the Orders. The email stated, in part:

…primarily and in summary, I say as follows.

I have invoked my appeal rights and consequently his Honour Justice Murphy has stayed the orders of his Honour Justice Jessup given on 5 February 2015, and as such the orders are frozen, pending the hearing and determination of the application for leave to appeal (See: order 1).

Therefore his Honour Justice Jessup cannot, or should not, as I understand it, make any orders nor should any hearings take place, relating to the orders given on 5 February 2015, as any action/order would then, and therefore, fall into a forced jurisdictional error, until such time as:

1.    After the appeal is heard and determined and if an order is then deemed necessary; or

2.    I withdraw the appeal.

(Emphasis added)

The reasoning in the email was not clear.

25    In the face of Ms Finch’s objection the primary judge did not rule on whether Dr Rigby’s report satisfied Order 2, or on whether it would constitute reasonable cause to lift the dismissal under Order 3. Presumably because the application for leave to appeal had not been determined, his Honour took no further step in the proceeding.

Consideration

The application for leave to appeal

26    The application for leave to appeal was listed to be heard on 20 April 2015, having earlier been adjourned from 9 April 2015. On 14 April 2015 my chambers advised the parties of a case management mention on 16 April 2015 aimed at ensuring that parties were ready to proceed on the date fixed.

27    Ms Finch relies on her three affidavits sworn 19 February 2015, 26 February 2015 and 20 April 2015 together with exhibits. The respondents rely on affidavits by Alishia Prpich, the solicitor for Heat Group, sworn 4 March 2015, 16 April 2015 and 20 April 2015. Both parties filed written submissions.

The relevant principles

28    The relevant principles in an application for leave to appeal from interlocutory orders relating to practice and procedure are well established, and I briefly set them out in the stay judgment. In summary, the Court will only be justified in granting leave to appeal from an interlocutory decision involving the exercise of discretion in a matter of practice and procedure if:

(a)    there is sufficient doubt regarding whether the primary judge has made an error in the exercise of the discretion of the type described in House v The King (1936) 55 CLR 499 at 505 per Dixon, Evatt and McTiernan JJ; and

(b)    substantial injustice would result if, the decision being supposed to be wrong, leave to appeal were refused. A tight rein is to be kept on appellate interference in matters of practice and procedure: Décor Corporation Pty Ltd and Another v Dart Industries Inc (1991) 33 FCR 397 at 398-400 per Sheppard, Burchett and Heerey JJ; Adam P Brown Mail Fashions Pty Ltd v Philip Morris Inc and Another (1981) 148 CLR 170 at 177 per Gibbs CJ, Aickin, Wilson and Brennan JJ.

The grounds of appeal

29    The grounds of appeal are set out in a draft Notice of Appeal and Ms Finch has advised of further grounds in affidavits and submissions. The grounds are prolix, overlapping and lack clarity, but the thrust of the proposed appeal is clear enough. Given the view I have taken on the issue of substantial injustice it is unnecessary to decide whether leave to appeal should be granted by reference to each ground. It suffices to note that the grounds include that the primary judge erred by:

(a)    permitting a hearing of the respondents’ three interlocutory applications to take place on 5 February 2015 when they were “in default and contempt of Court” in failing to file a Defence. Ms Finch contends that the respondents were obligated to file a Defence pursuant to the Federal Court Rules 2011 (Cth);

(b)    proceeding with the hearing when his Honour had not read the documents provided and requiring that the parties make oral submissions, then after some five hours of submissions shifting the argument to Ms Finch’s medical state rather than adjourning the hearing at the outset if her medical condition was a concern;

(c)    failing to adjourn the hearing set down for 5 February 2015 to allow Ms Finch time to obtain legal advice and legal representation because his Honour:

(i)    did not properly consider the respondents’ refusal to allow Ms Finch a short extension of the timetable;

(ii)    considered Dr Rigby’s certificate of 12 months prior late in the hearing of the security for costs application and then raised issues and concerns relating to Ms Finch representing herself; and

(iii)    criticised Ms Finch for not having legal representation on the day;

(d)    permitting counsel for the respondents to make misleading submissions that it was unsafe for Ms Finch to continue to represent herself in the proceeding, and apparently accepting those submissions;

(e)    asking Ms Finch questions which were properly to be dealt with by medical experts rather than herself, and not giving her proper notice of the case against her and the right to defend herself effectively in relation to her medical condition;

(f)    reaching the view that Ms Finch was unfit to instruct lawyers when Dr Rigby’s report dated 8 March 2014, prepared at the time when she was unwell, did not provide that she was unfit to instruct lawyers;

(g)    requiring that Ms Finch obtain a medical report after having the relevant medical practitioner read the lengthy FASOC, and requiring that this be done in a short time frame;

(h)    requiring Ms Finch to incur the significant cost of having a medical practitioner read the lengthy FASOC which, given her financial circumstances, would impose a significant burden;

(i)    making self-executing orders which had the effect of terminating the proceeding when Ms Finch was not a serial defaulter and there was no proper basis for such orders;

(j)    staying the proceeding in reliance upon Dr Rigby’s report of 8 March 2014 which was almost 12 months old, including by failing to consider that the report was provided to the Court in relation to a hearing on 14 March 2014, was specific to Ms Finch’s health at that time and was the result of events that had occurred prior to the report being produced. In this regard Ms Finch alleged that she had 12 months of counselling and treatment following that medical certificate and that she was now fit to instruct lawyers and/or to represent herself;

(k)    not earlier advising Ms Finch of his Honour’s concerns about her medical condition which would have enabled her to obtain an up-to-date medical report;

(l)    failing to provide adequate reasons for the decision that the case should be stayed because of risks to Ms Finch’s health if she instructed lawyers in the proceeding or continued to represent herself;

(m)    dismissing the proceeding because of Ms Finch’s psychological condition when her condition is treatable by counselling, and if counselling was required it would render her well enough to continue to prosecute her case; and

(n)    displaying bias in making the Orders dismissing the proceeding when the respondents have previously breached orders, have failed to comply with the Rules by not filing a Defence, and have filed misleading documents in Court on three occasions and his Honour did not reprimand or discipline the respondents or make self-executing orders against them.

30    Ms Finch contends that she suffers a substantial injustice by reason of the Orders which, in reality, terminate the proceeding because, amongst other things:

(a)    her claims are meritorious and likely to succeed;

(b)    she holds a certificate from the Human Rights Commission allowing her to prosecute claims under the Disability Discrimination Act 1992 (Cth);

(c)    the FASOC was drafted by an experienced barrister;

(d)    the respondents have attempted to settle her claims;

(e)    outside the Court she has previously enjoyed success in six other claims against the respondents; and

(f)    the respondents’ insurer accepted liability for her psychological injury in November 2012.

31    In submissions Ms Finch objected to the suggestion that her email of 9 April 2015 constituted a refusal to allow the primary judge to decide whether or not Dr Rigby’s report satisfied the orders. Ms Finch stated that:

(a)    her allowing the primary judge to decide the issue would constitute a jurisdictional error;

(b)    because the Orders were stayed, any hearing held without an application was a nullity and would clash with the stay orders;

(c)    by informing the primary judge’s chambers of her position she was merely avoiding prejudicing her rights because she was “barred by the law from committing errors of law that are fatal to the administration of justice”;

(d)    because she had not had a response to an email she sent to chambers she presumed her position regarding the jurisdictional error was correct;

(e)    as a self-represented litigant the primary judge had a “paramount duty” to advise her if she was incorrect regarding her understanding of the procedures to be followed;

(f)    if the primary judge was not barred from ruling on whether Dr Rigby’s report satisfied the Orders his Honour could make appropriate orders without any involvement from her; and

(g)    allowing the primary judge to rule on the question may give rise to a waiver of her rights to make a recusal application, which she was contemplating.

The first adjournment application

32    At the mention on 16 April 2015 Ms Finch sought to adjourn her application on grounds including that:

(a)    she had not had the opportunity to obtain legal advice or representation for the hearing;

(b)    the Notice of Appeal was prepared in a rush and she wanted some time to redraft it; and

(c)    she had not planned for the hearing to occur on 20 April 2015 because she had been waiting for Jessup J to inform her whether he was satisfied with Dr Rigby’s report or not.

33    I refused the application for an adjournment. I did so, first, because I considered Ms Finch had ample opportunity to obtain legal advice and representation. It was her application for leave and it had been on foot for almost two months. In my view, if Ms Finch intended to instruct lawyers she had plenty of time to do so. In the hearing on 5 March 2015 I strongly recommended to her that she obtain independent legal representation and, through chambers, facilitated her contact with Justice Connect for pro bono assistance.

34    Secondly, in my view the main difficulty facing the leave application was the respondents’ contention that Ms Finch’s rights had not been finally decided and that she had suffered no substantial injustice. In the stay hearing, the stay judgment and in the mention I made clear my preliminary view that this was a major obstacle to a grant of leave. A redrafted Notice of Appeal could not address that concern.

35    Thirdly, I did not accept that Ms Finch had not engaged lawyers because she had been waiting for the primary judge to inform her whether his Honour was satisfied with Dr Rigby’s report or not. In fact, on 9 April 2015, she objected to the primary judge dealing with that question and his Honour had not done so. Despite this Ms Finch had taken no steps after 9 April 2015 to engage lawyers for the pending hearing.

36    In argument it became apparent that Ms Finch was also concerned about another issue regarding the fact that on 15 April 2015 she had filed an application for the primary judge to recuse himself from hearing her case on grounds of apprehended bias. Her submissions again lacked clarity, but the essence of her contention was that in those circumstances her agreement to the primary judge ruling on whether Dr Rigby’s report satisfied the Order 2 could be seen as unethical.

37    In my view Ms Finch’s concern is misconceived. The applicant said that she understood that the recusal application should be dealt with first by the primary judge. On that basis, if the primary judge considered that he should recuse himself then the proceeding would be allocated to another docket judge. If the primary judge considered that he should not recuse himself then, absent an appeal on that issue, his Honour could proceed to rule on Dr Rigby’s report.

38    I refused the application for an adjournment and gave directions for the filing of further affidavit evidence (if any) and submissions. The parties had made various submissions based on emails between the parties and the Court and I directed that an affidavit be prepared which attached the relevant emails so that they were properly before the Court at the hearing.

The second adjournment application

39    At the hearing on 20 April 2015 Ms Finch again applied for an adjournment. In part she reiterated her earlier grounds and, insofar as she did so, I refused the application for the reasons set out above. However, she also advanced some new arguments as follows.

40    First, she argued that she had been “ambushed” by three documents filed by the respondents shortly before the hearing, namely:

(a)    a supplementary affidavit of Ms Prpich dated 16 April 2015 attaching the stay judgment and email correspondence between the parties and the Court;

(b)    the further supplementary affidavit of Ms Prpich dated 20 April 2015 attaching email correspondence between the parties and the Court; and

(c)    the respondents’ outline of submissions dated 20 April 2015.

She contended that she did not have sufficient time to consider the documents.

41    I do not accept that Ms Finch was ambushed by the further affidavits and submissions. They were filed pursuant to my directions of 16 April 2015, and she herself filed a lengthy affidavit on the morning of the hearing. The respondents’ affidavits merely attached email correspondence between the parties and the Court and judgments that Ms Finch had already seen. They did not contain any new facts that required time for Ms Finch to consider or respond and she suffered no prejudice by their filing on the morning of the hearing. She must have understood the affidavits would be filed as I had directed.

42    There was also little that was new in the respondents’ written submissions from their submissions in the stay application in March 2015. They were not lengthy and could have been read in 15 minutes. However, as Ms Finch said she had not had the opportunity to read them, I gave her time to read and respond to the further affidavits and submissions. I directed that she to file any material in response within three days and Ms Finch availed herself of that opportunity.

43    Secondly, Ms Finch sought an adjournment on the basis that her recusal application was yet to be determined. She contended that the matters in both applications are linked and that the outcome of the recusal application could have an impact on her decision to proceed with the application for leave to appeal. That may be so, but I do not accept that the fact that Ms Finch has applied to recuse the primary judge which is to be heard by his Honour, warrants the adjournment of her application for leave to appeal before me. They are separate issues.

44    At present, the proceedings are at something of an impasse and I consider the application for leave to appeal should now be decided.

Should leave to appeal be granted?

45    For Ms Finch to succeed in the application she must, first, establish that the primary judge made an error in the exercise of discretion of the type set out in House v King. That is, she must establish that the primary judge acted upon a wrong principle, allowed extraneous or irrelevant matters to guide or affect him, mistook the facts, or failed to take into account some material consideration. Secondly, she must establish that substantial injustice will result if, the Orders being supposed to be wrong, leave to appeal is refused.

46    In essence Ms Finch argues that the primary judge made an error of the kind in House v King in that his Honour mistook the facts by relying on an out of date medical report which did not reflect her current medical condition, and because his Honour failed to take into account as a material consideration the fact that the report was out of date.

47    In response, the respondents contend that the primary judge’s exercise of discretion is not attended with sufficient doubt to justify a grant of leave. They point to the fact that medical evidence before the Court indicated that Ms Finch suffered from a serious psychiatric condition and that there was no material which indicated that her psychological condition had changed. The primary judge sought a more recent medical certificate but Ms Finch was unable to provide one. They note that his Honour’s decision was not based only on Dr Rigby’s report and was also informed by the nature and scope of Ms Finch’s submissions and the nature of the material upon which she relied.

48    Making a self-executing order to stay and dismiss a proceeding because of concerns about an applicant’s psychological condition, in reliance on an out of date medical report which does not reflect the applicant’s current medical condition, may be seen to involve mistaking the facts or failing to take a material consideration into account. However, in the present case the Orders invite the filing of a current medical report and in practical terms they are not final. It may be doubted that the Orders involve an error of the type in House v King.

49    In the finish it is unnecessary to decide whether the primary judge erred in the exercise of discretion. A tight rein must be kept on appellate interference with the exercise of discretion in matters of practice or procedure and in my view Ms Finch cannot establish that she will suffer substantial injustice if, his Honour’s decision being supposed to be wrong, leave to appeal is refused.

50    Primarily this is because the primary judge has not yet ruled on whether Dr Rigby’s report of 20 March 2015 satisfies the Orders. His Honour proposed to rule on the question but Ms Finch objected and his Honour did not then proceed to deal with it. If the primary judge rules on the question and is satisfied that Dr Rigby’s report satisfies Order 2 (although outside the timeframe allowed) then Ms Finch suffers no prejudice by reason of the Orders and the substantive proceeding can continue on foot. Even if the primary judge rules on the question and is not satisfied that Dr Rigby’s report satisfies Order 2, Ms Finch may rely on Dr Rigby’s report as the basis of an application to lift the dismissal on “proper cause” pursuant to Order 3.

51    Whether or not Dr Rigby’s report will satisfy the Orders, or provide a sufficient basis to lift the dismissal, is not a matter for me but it is worth noting that it is likely to do so in my view. As I have said, in argument counsel for the respondents effectively conceded that the report satisfies the Orders.

52    In my view Ms Finch’s contentions that she did not object to the primary judge ruling on Dr Rigby’s report are misconceived. There was no proper obstacle to Ms Finch accepting the primary judge’s invitation to rule on whether Dr Rigby’s report satisfies Order 2. It is though unnecessary to go to Ms Finch’s reasons in detail because, whatever the reasons for her taking the position she did in her email of 9 April 2015, it is now open to her to accept the primary judge’s invitation and, if it becomes necessary, it is also open to her to rely on Dr Rigby’s report to lift the dismissal pursuant to Order 3.

53    It may also be noted that, as the stay on the Orders has now been lifted, there is no bar to the Court ruling on whether Dr Rigby’s report satisfies the Orders whether or not Ms Finch objects to that course.

54    As I have said, my view may well have been different if there was no avenue open to Ms Finch to continue her proceeding except by way of the proposed appeal, but that is not the case.

Associate:

Dated:    5 May 2015