FEDERAL COURT OF AUSTRALIA

Finch v The Heat Group Pty Ltd (No 3) [2015] FCA 1084

THE COURT ORDERS THAT:

1.    Notwithstanding the operation of Order 3 made on 5 February 2015 by the determination of the applicant’s application for leave to appeal on 5 May 2015, the proceeding be reinstated nunc pro tunc.

2.    The time within which the applicant was to make the application referred to in Order 2 made on 5 February 2015 be extended to 19 April 2015.

3.    The applicant’s Interlocutory Application of 19 April 2015 be accepted as a sufficient application for the purposes of Order 2 made on 5 February 2015.

4.    The stay for which Order 1 made on 5 February 2015 provided be lifted.

5.    The claims made in paras 1 and 2 of the applicant’s Interlocutory Application filed on 19 April 2015 otherwise be rejected.

6.    The applicant pay the respondents’ costs.

7.    The proceeding be listed for case management at 9:30 am on 6 November 2015.

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

REASONS FOR JUDGMENT

1    On 5 February 2015, for reasons which I then pronounced, I made the following orders in this proceeding:

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).

2    2 March 2015 passed without any application having been made conformably with Order 2 made on 5 February 2015. However, on 19 February 2015, the applicant applied for leave to appeal from the orders made on 5 February 2015.

3    On 5 March 2015, on the hearing of an application by the applicant for leave to appeal from my orders of 5 February 2015, Murphy J made the following 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.

4    On 5 April 2015, the applicant filed (in the proceeding before Murphy J) a medical report, dated 20 March 2015, which addressed the matters required by Order 2 made on 5 February 2015.

5    What happened next was the subject of the following paragraphs in reasons given by Murphy J for dismissing the applicant’s application for leave to appeal, which his Honour did on 5 May 2015:

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.

….

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.

6    By an Interlocutory Application in the proceeding filed on 19 April 2015, the applicant sought, amongst other things, the reinstatement of the proceeding. She did not seek an extension of the time limited under Order 2 made on 5 February 2015. Rather, the basis of the application was that the applicant would demonstrate “proper cause” why Order 3 should not operate according to its terms. No application was made for the operation of that order to be stayed pending the determination of that Interlocutory Application.

7    As mentioned above, on 5 May 2015, Murphy J dismissed the applicant’s application for leave to appeal from the orders made on 5 February 2015. Thereupon the stay of the operation of those orders was lifted, and the present proceeding stood dismissed by the operation of Order 3 made on that day.

8    Notwithstanding that circumstance, it was not argued on behalf of the respondents that the court did not have the jurisdiction, or the power, to make an order of the kind sought by the applicant. The Interlocutory Application was, therefore, heard on the merits.

9    The respondents’ first contention is that, for the applicant to rely on the “proper cause” exception to the operation of Order 3 provided for, she needs to provide an acceptable explanation for her failure to have made her application for the lifting of the stay by 4:00 pm on 2 March 2015, as was her opportunity under Order 2. I would not regard this as an indispensable condition for the applicant’s success in the present application, but it is, on any view, a discretionary consideration of some importance. It is, in effect, the obverse of the applicant’s justification for the reinstatement order which she seeks.

10    The applicant’s case is that she applied for leave to appeal from the orders made on 5 February 2015, she secured a stay of the operation of those orders, she did as she was bid in Murphy J’s orders of 5 March 2015, and she filed a medical report which, in point of content, the respondents are prepared to accept would have satisfied the court’s requirements. It was, she submitted, the logistical complications of securing that report which prevented her from complying with the time limits imposed under the orders of 5 February 2015. So far, so good. Had the applicant accepted the invitation which was extended to her to have the court rule on the sufficiency of the medical report as soon as it had been received, there is a fair prospect that the court would have ruled in her favour. Indeed, as I read the respondents’ position at the time, they would not have stood in her way.

11    However, as Murphy J pointed out, the applicant then adopted a surprising position. On 9 April 2015, she rejected the notion that I should make any such ruling, either way. Save that she has since applied for me to recuse myself on the ground of apprehended bias, there appeared to be no rational basis for her to have adopted this position. Effectively, the applicant was not pressing any claim to have the medical report received, considered, and used as the basis for lifting the stay (which, by the stay order of Murphy J, remained in place).

12    No less surprising was the applicant’s application of 19 April 2015, which is now before the court. It is not easy to see how that was to be reconciled with the position which she adopted on 9 April 2015, but it had the following consequence. Before the application was listed, which it was on 27 May 2015, Murphy J had made his order of 5 May 2015 dismissing the application for leave to appeal. As mentioned above, the result was that the proceeding stood dismissed on that day. Thus the applicant’s present case is for the reinstatement of her proceeding rather than, as it would have been on 9 April 2015, for the deferral of the date provided for in Order 3 made on 5 February 2015 and the subsequent lifting of the stay for which Order 1 provided.

13    As to the curious aspects of the applicant’s conduct of her case to date to which I have referred, I am disposed to take a tolerant approach to her situation, being unrepresented as she is. Although she has proceeded in ways that were almost bound to lead to procedural difficulties, there was no period when she conspicuously sat by and allowed time to pass. She made the application which is now before the court during the currency of the stay imposed by Murphy J, and it was not her doing, at least so far as I can see, that the matter was not listed for about five weeks.

14    There is, I would find, an explanation for the applicant’s failure to make application under Order 2 made on 5 February 2015 by the time limited in that order. In part, that explanation lies in the applicant’s inability to obtain a medical certificate within the time available, although, I would have to say, her evidence as to the attempts which she made in that regard is not very satisfactory. In part, the explanation lies in her intention to apply for leave to appeal against the making of that order, and the orders with which it was associated. That was a legitimate procedural step to take, notwithstanding that the application ultimately failed. But she made that application in time to secure a stay of the operation of Order 3 before her proceeding was brought to an end by the operation of that order. In summary, the view I take is that the applicant’s explanation qualifies to be taken into account, but is not of sufficient strength to produce the outcome which she now seeks without consideration of other discretionary factors which bear upon the question whether the proceeding should be reinstated. It is to them that I next turn.

15    Among all the confusing aspects of the history to which I have referred, three things at least may be said. First, there never has been any doubt but that the applicant wishes to prosecute her cause. Secondly, by providing the medical report on 5 April 2015, the applicant did resolve the concerns which led to the making of the original orders on 5 February 2015. And thirdly, save with respect to costs, the respondents would not be prejudiced by the reinstatement of the proceeding, compared with the position that would have obtained had the applicant made her application under Order 2 in a timely way. They have not, for example, changed their position in reliance upon the operation of the self-executing order on the expiration of Murphy J’s stay on 5 May 2015. If the respondents can be protected for the costs that they have incurred, these three factors, of themselves, favour the reinstatement of the proceeding, and they do so unambiguously.

16    Perhaps recognising the reality of that situation, in submissions made on behalf of the respondents opposing the reinstatement application, their counsel contended that the proceeding was an abuse of process and, for reasons which included that circumstance, had negligible prospects of success. He constructed this submission around a detailed written submission filed on 27 January 2015 in support of an Interlocutory Application, made by the respondents on 28 November 2014, for the Further Amended Statement of Claim filed on 8 October 2014 to be struck out on the grounds that it was ambiguous, had no reasonable prospect of success, was vexatious, failed to disclose a reasonable cause of action, and/or was an abuse of process. He accepted that the applicant’s present Interlocutory Application did not directly involve any question as to the sufficiency of her pleading, but he submitted that it was the Further Amended Statement of Claim which gave content to the nature of her intended case and which, therefore, should be used as a reference point for the court’s consideration of his clients’ opposition to the reinstatement of the proceeding.

17    I would not accept that approach. It was in the environment of the hearing of other aspects of the respondents’ Interlocutory Application of 28 November 2014 that I made my orders of 5 February 2015. If I take the view, by reference to other discretionary factors, that the applicant’s reinstatement application should be granted, I do not think it would be appropriate to set up a further hurdle in her path by making that application the occasion for the agitation of the issues that would arise on the respondents’ strike-out application. However strong the respondents’ case on that application may be, it is a case, in my view, which should be advanced and considered within the environment of an existing proceeding in which the pleading being challenged has been filed, rather than acting as a gate through which the applicant must pass to restore herself to the position which she occupied when I first raised doubts as to her capacity to represent herself in the proceeding.

18    It will be apparent from what I have written above that I do take the view that, absent considerations of the kind referred to in the two preceding paragraphs, the applicant’s reinstatement application should be granted. I propose to make an order to that effect.

19    As to the remaining steps required to place this proceeding back on the rails, as it were, I propose to order that the applicant’s Interlocutory Application of 19 April 2015 be accepted as a sufficient application for the purposes of Order 2 made on 5 February 2015, and that time be extended accordingly. Having read the medical report which the applicant filed on 5 April 2015, and in the absence of any argument on behalf of the respondents that the report is insufficient for the purposes intended, I am satisfied that the doubts which I entertained as to the capacity of the applicant to represent herself have been resolved. In the circumstances, it would be appropriate now to lift the stay for which Order 1 made on 5 February 2015 provided.

20    The respondents submitted that they should have their costs of the reinstatement application, even if it were successful, upon the ground that it was, in effect, an application for an indulgence. The only response of any substance made by the applicant to this submission was that, in the spirit of ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth), the respondents should not have contested the application. I do not accept that response. The need for the proceeding to be reinstated arose from no act or omission of the respondents. They have conducted themselves conventionally and, I would have to say, patiently since the hearing and disposition of their Interlocutory Application of 28 November 2014 was deferred in circumstances to which I have referred, in which respect I refer particularly to the matters referred to in paras 11-12 above. The arguments which they advanced on the applicant’s Further Amended Statement of Claim, notwithstanding that they failed, were legitimately so advanced, and did not extend the hearing of the applicant’s application beyond a single day. The strength of the applicant’s reinstatement claim was by no means self-evident before the hearing of that application.

21    I consider this an obvious case for the application of the principle that a party who is required to respond to an application by another party for an indulgence should generally have his or her costs.

Associate:

Dated:    9 October 2015