FEDERAL COURT OF AUSTRALIA

Bilaczenko v Bochner [2016] FCA 1207

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The South Australia District Registrar is, by 25 October 2016 to deliver a copy of these reasons to each of the respondents by their last known email address or, if no email address for a respondent is known, by way of ordinary post to the respondent’s physical address for service.

3.    Any application for costs by the second or third respondent is to be filed and served on or before 1 November 2016.

4.    In the event that no application is filed by a respondent in accordance with the order in paragraph 2 of these orders, there is to be no order as to costs in relation to that respondent.

5.    In the event that the second or third respondent files and serves an application for costs in accordance with paragraph 2 of these orders, the application is to be set down for hearing at a date to be fixed by the District Registrar.

6.    There is to be no order for costs in relation to the first respondent and the fourth respondent.

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

REASONS FOR JUDGMENT

CHARLESWORTH J:

1    This is an application for leave to appeal from a decision of a single judge of this Court dismissing an application for an extension of time in which to commence judicial review proceedings.

2    For the reasons that follow, the application for leave to appeal should be dismissed.

BACKGROUND

3    In July 2015, the applicant, Mr Bilaczenko, lodged for filing in the South Australia District Registry of this Court (Registry) an originating application and supporting affidavit. The first respondent to this application (Ms Bochner) was, at that time, the South Australia District Registrar. Ms Bochner decided not to accept the applicant’s documents for filing. She notified the applicant of her decision by letter dated 20 July 2015, delivered by ordinary post.

4    In September 2015, Mr Bilaczenko again lodged for filing an originating application and supporting affidavit. The second respondent to this application (Ms Baldwin) was, at that time, the South Australia District Registrar. Ms Baldwin decided not to accept the applicant’s documents for filing. She notified Mr Bilaczenko of her decision by letter dated 22 September 2015, delivered by ordinary post.

5    I will refer to the two proceedings sought to be commenced by Mr Bilaczenko in July and September 2015 as “the proposed actions”.

6    Each of the proposed actions sought to challenge determinations made or purportedly made by the Financial Ombudsman Service (FOS) and the Australian Securities and Investments Commission (ASIC). There were six respondents named on each of the proposed actions: FOS, Commonwealth Securities Ltd, E-Trade Australia Securities Ltd, Direct Shares, Third Party Platform trading as Bill Direct, and ASIC. FOS and ASIC are respectively joined as the third and fourth respondents on this application. No other respondents are joined.

7    In an affidavit sworn on 8 July 2015 and lodged in support of the first of the proposed actions, Mr Bilaczenko confirmed that he sought to have the following issues determined:

Whether the decisions of a private body the Financial Ombudsman Service [FOS] performing public duties and public law functions for a public purpose is subject to judicial review.

Whether FOS is bound by the established principles of administrative law in its public law functions, in particular, the process of procedural fairness, which used to be called natural justice.

8    Ms Bochner and Ms Baldwin refused to accept Mr Bilaczenko’s documents for filing because they viewed the proposed actions as an attempt to re-agitate matters that had already been judicially decided. Accordingly, they determined that the proposed actions amounted to an abuse of process: see r 2.26 of the Federal Court Rules 2011 (Cth).

9    In order to understand the District Registrars’ reasons, it is necessary to cast back further in time to 2006. In that year, Mr Bilaczenko instituted complaints with FOS about the services provided to him by a stockbroker. FOS at that time was a public company limited by guarantee. It operated a dispute resolution scheme approved by ASIC. The service had previously been operated by another entity with which FOS eventually merged, although nothing for present purposes turns on that history. Evidence in earlier proceedings showed that Mr Bilaczenko entered into a contract with FOS governing the parties’ rights and obligations in relation to the dispute resolution scheme (Contract). Mr Bilaczenko was, and to this day remains, dissatisfied with the dispute resolution service provided by FOS.

10    In 2012, Mr Bilaczenko commenced two applications under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) in the Federal Circuit Court (the 2012 actions). The 2012 actions were heard together in the Federal Circuit Court (FCC). FOS was the only respondent joined on each of the 2012 actions.

11    FOS applied for orders that both actions be summarily dismissed pursuant to r 13.10 of the Federal Circuit Court Rules 2001 (Cth) and s 17A of the Federal Circuit Court Act 1999 (Cth) on the grounds that Mr Bilaczenko had no reasonable prospect of success in prosecuting them, the proceedings were frivolous or vexatious and the proceedings were an abuse of process. On 31 May 2013, a judge of the FCC dismissed both of the 2012 actions because there was no reasonable basis to argue that the determinations made by FOS were decisions “under an enactment” so as to be amenable to review under the ADJR Act: Bilaczenko v Financial Ombudsman Service Ltd [2013] FCCA 420 (the FCC judgment). One of the actions was dismissed on the additional basis that it sought to reopen and re-argue a decision of FOS which was, according to the Contract, “final”.

12    In the proceedings before the FCC, Mr Bilaczenko argued that, notwithstanding that his legal relationship with FOS was contractual, FOS was amenable to judicial review by reason of the principle stated in the English case of R v Panel on Takeovers and Mergers; ex parte Datafin PLC [1987] 1 QB 815 (Datafin). More particularly, he contended that the effect of the so-called Datafin principle was that FOS was amenable to judicial review because its determinations of his complaints were made in the performance of a public duty and otherwise had a public element. It was, and remains, Mr Bilaczenko’s contention that the so-called Datafin principle applies in Australia.

13    The FCC did not determine whether the principles in Datafin applied, because the determinations of FOS made or purportedly made in accordance with the dispute resolution scheme were not decisions “under an enactment” within the meaning of the ADJR Act and were not therefore amenable to review under that Act.

14    On 21 August 2013, the applicant made an application to this Court for leave to appeal against the FCC judgment and an application for an extension of time in which to do so. Both applications were refused by Mansfield J: Bilaczenko v Financial Ombudsman Service Ltd [2013] FCA 1268. Mansfield J (at [37]) held that the FCC was “clearly correct” in concluding that the determinations of FOS were not decisions “under an enactment” within the meaning of s 5 of the ADJR Act.

15    As I have said, Mr Bilaczenko lodged the proposed actions for filing in July and September 2015.

16    Then, on 24 December 2015, Mr Bilaczenko filed an originating application in the form prescribed by the Federal Court Rules 2011 (Cth) for applications under the ADJR Act seeking review of the two decisions of the District Registrars to refuse to accept the proposed actions for filing. FOS and ASIC were named as respondents.

17    In his accompanying affidavit, Mr Bilaczenko referred to the “Administrative (Judicial Review) Decisions Act 1971” [sic]. The applications came on for hearing before White J on 9 March 2016. White J treated the application as one made under the ADJR Act. Mr Bilaczenko made no submission before this Court to the effect that White J erred in so treating the application.

18    By reason of ss 11(1)(c) and 11(3) of the ADJR Act it was necessary for the application to have been filed within 28 days of Mr Bilaczenko receiving reasons for the decisions sought to be reviewed, or within such further time as the Court allowed. At the commencement of the hearing, White J drew Mr Bilaczenko’s attention to the requirement that he apply for an extension of time in which to commence the application. His Honour permitted Mr Bilaczenko to make such an application orally.

19    By orders made on 22 March 2016, White J refused the application for the extension of time: Bilaczenko v Bochner [2016] FCA 275. That is the interlocutory judgment from which Mr Bliaczenko now seeks leave to appeal: see s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (FCA Act).

THE REASONS OF THE PRIMARY JUDGE

20    In the proceedings before White J, Mr Bilaczenko explained that he had not filed his applications within the time limit prescribed in the ADJR Act because he was not aware of the limit. White J accepted that explanation (at [9]). His Honour continued (at [10]):

Prominent among the considerations bearing upon the grant of an extension of time is the prejudice to an applicant if the extension is not allowed. In a case like the present, this turns on whether the applicant would lose the chance to prosecute proceedings which were otherwise meritorious. In those circumstances, I explained to the applicant that I would hear his submissions on the substantive application and that my decision on his application for an extension time [sic] would be very much influenced by the view which I formed about the merits of his underlying claim.

21    The reasons of White J indicate that Mr Bilaczenko had not provided the Court with copies of all of the documents which he alleged the District Registrars had refused to accept for filing. White J noted (at [13]) that the Court had in its own records a copy of the application and supporting affidavit which Mr Bilaczenko had lodged for filing in July 2015. The reasons state that Mr Bilaczenko was invited to confirm that the documents in the possession of the Court were copies of those he had attempted to file. The transcript of the proceedings confirms that Mr Bilaczenko did so. Mr Bilaczenko exhibited to an affidavit filed on 24 December 2015 a copy of the affidavit dated 14 September 2015. White J inferred (at [13]) that this was the affidavit Mr Bilaczenko had sought to file in support of the second proposed action in September 2015.

22    White J referred to the well-established principle that an attempt to relitigate a case that has already been judicially determined may constitute an abuse of the Court’s processes: Walton v Gardiner (1993) 177 CLR 378 (Walton) at 393 (Mason CJ, Deane and Dawson JJ); Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at [33] (French CJ) and Plaintiff S3/2013 v Minister for Immigration and Citizenship (2013) 297 ALR 560; [2013] HCA 22 at [11] (Gageler J). Against that principle, his Honour examined the subject matter of each of the proposed actions, with particular reference to the affidavit material sought to be filed in support of them, concluding that, with the exception of one issue, the proposed actions sought to relitigate issues that had been judicially determined in the FCC judgment (from which there had been an unsuccessful application for leave to appeal). The exception concerned an apparent attempt by Mr Bilaczenko to “agitate a separate question altogether” concerning a speeding offence which had been dealt with by the Magistrates Court of South Australia.

23    White J noted (at [40]) that Mr Bilaczenko had acknowledged more than once that he wished to argue, again, the same matters that he had litigated in the FCC. Mr Bilaczenko submitted that he was entitled to do so because the FCC judgment did not create any issue estoppel. White J rejected that submission on the basis that an attempt to relitigate matters may constitute an abuse of process even in the absence of issue estoppel (at [41]): see Walton; Dallas Buyers Club LLC v iiNet Ltd (No 5) (2015) 115 IPR 544; [2015] FCA 1437 at [13] – [14] (Perram J); Windsor v Sydney Medical Service Co-operative Ltd (No 2) [2009] FCA 704 at [25] – [26] (Edmonds J); Sea Culture International Pty Ltd v Scoles (1991) 32 FCR 275 at 279 (French J); Pedra Holdings Pty Ltd v Westfield Shoppingtown Carousel Pty Ltd [2005] FCA 909 at [20] (Nicholson J) and Coffey v Secretary, Department of Social Security (1999) 86 FCR 434 at 443 (von Doussa, Branson and Sundberg JJ).

24    His Honour concluded (at [42]):

The circumstances which in my opinion indicate that the District Registrars were correct to regard the applicant’s attempt to re-litigate the issues determined by the FCC Judge as an abuse of process are these. First, the earlier proceedings were resolved adversely to the applicant on a question of law, and not as a matter of evidence. Secondly, the remedy available to the applicant if dissatisfied with the decision of the FCC was that of appeal, and the applicant sought to exercise those rights, albeit belatedly. Mansfield J held that the FCC Judge had been clearly correct in finding that the applicant was not entitled to review of the decisions of FOS under the ADJR Act. In addition, Mansfield J considered that the applicant had not shown an entitlement to any more general form of judicial review. This indicates that the applicant has already invoked the means allowed by the law by which to seek reconsideration of the FCC judgment. Thirdly, this is not a case in which an applicant seeks to re-agitate a matter on the basis of new evidence or material, and in particular, evidence or material which was not available at the time of the first hearing. The applicant’s submissions make it plain that he wishes to do no more than to argue anew the same matters which he previously argued.

25    The circumstance that Mr Bilaczenko had sought to join as respondents in the proposed actions persons who were not parties to the FCC proceedings did not alter White J’s conclusion. In that regard, his Honour said (at [44]):

… To my mind that is immaterial. First, the applicant does not seek any orders against these additional parties. Secondly, the presence of the additional respondents does not alter the underlying character of the applicant’s proposed proceedings.

26    As to the issue concerning Mr Bilaczenko’s speeding offence, White J found (at [45]) that this Court lacked jurisdiction with respect to such matters and that it constituted an abuse of process for Mr Bilaczenko to commence proceedings in this Court in relation to them.

27    Accordingly, White J determined (at [47]) that even if an extension of time were granted to commence the proposed application under the ADJR Act, the application would necessarily fail. It was, in that circumstance, inappropriate to grant the application for the extension of time.

THIS APPLICATION

28    This application for leave to appeal is heard by a single judge in accordance with s 25(2)(a) of the FCA Act. Where a single judge of the Court hears an application for leave to appeal from an interlocutory judgment of another single judge, it is appropriate to take into account whether there is sufficient doubt about the correctness of the decision of the primary judge to warrant reconsideration by a Full Court: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 (Decor Corporation) at 398 — 399 (Sheppard, Burchett and Heerey JJ), Rawson Finances Pty Ltd v Commissioner of Taxation [2016] FCAFC 95 at [39] (Robertson, Moshinsky and Bromwich JJ). A second consideration is whether substantial injustice would result if leave were refused, supposing the decision to be wrong. In a passage approved by the Full Court in Decor Corporation, Burchett J, in Sharp v Deputy Commissioner of Taxation (Cth) (1988) 19 ATR 908; (1988) ATC 4,184 (Sharp) said, of these two considerations (at 910):

In my opinion, the sufficiency of the doubt in respect of the decision and the question of substantial injustice should not be isolated in separate compartments. They bear upon each other, so that the degree of doubt which is sufficient in one case may be different from that required in another. Ultimately, a discretion must be exercised on what may be a fine balancing of considerations.

29    Mr Bilaczenko appeared self-represented on his application before White J and on the present application. White J noted (at [6]) that the documents relied upon by Mr Bilaczenko in the proceedings before him reflected that circumstance. The same observation can be made about the documentary material relied upon in support of this application. I take into account Mr Bilaczenko’s status as a self-represented litigant in reading and interpreting the written materials.

30    The originating application in the proceedings before me contains the following three paragraphs under the heading “Grounds of application”:

1.    The documents that the registrar provided to his Honor were not complete.. I refer to the associates email dated 22/2/16. These are the documents now tabled for appeal.

2.    No oportuneaty given the applicant to amend the original affidavit. Now amended and submitted for appeal.

3.    The Honorable Justice White has erred in dismissing the application, the 3rd and 4th Respondents and FOS are not subject to his honours ruling. As outlined in the appeal

(original grammar and spelling retained)

31    Although referred to as “grounds of application” these grounds may be fairly understood as constituting the grounds of appeal to be relied upon by Mr Bilaczenko should leave to appeal be granted.

32    There is attached to the originating application a document with the title “APPEAL OF THE RULING OF THE HONOURABLE JUSTICE WHITE”. This text then follows:

Whether the Appellant is correct in asserting that FOS is amenable to judicial review or, in the alternative FOS is contractually bound to the Appellant (Bilaczenko) in a way which gives rise to similar duties.

Whether the Financial Ombudsman Service [FOS] is bound by the established principles of administrative law in its functions, in particular, the process of procedural fairness, which used to be called natural justice.

Whether the Datafin principle provides a methodology for the court to establish jurisdiction for the review of the decisions of a private body FOS, performing public law functions and duties for a public purpose.

Legislation: Legislative instruments ASIC’s Regulatory Guide 139 (RG 139) and (RG 156)

s 912A and s 1017G Note 2: of the Corporations Act 2001 (Cth)

s 3 & 5 of the Administrative Decisions ( Judicial Review ) Act 1977

Key words : Outsourcing federal government functions to private bodies -­ legislative frame work -- subordinate [Legislative instruments] legislation under an Act -- a private body performing Public law functions and public duties for a public purpose -- public law consequences-- Datafin principle -- FOS breach of contract

Orders Sought: remit the matter to the originating court and the Honorable Justice White alternatively if unavailable another Justice

(original grammar and spelling retained)

33    At the hearing before me, Mr Bilaczenko confirmed that it was his intention to allege on his proposed appeal that the primary judge erred by failing to find that (adopting his words):

1.    FOS is amenable to judicial review or, alternatively, contractually bound to the applicant in a way that gives rise to similar duties;

2.    FOS is bound by the established principles of administrative law in its functions, in particular, the process of procedural fairness, which is to be called natural justice;

3.    the Datafin principle provides a methodology for the Court to establish jurisdiction for the review of the decision of a private body performing public law functions and duties for a public purpose.

34    Taken together, these propositions may be fairly summarised in a single contention that the primary judge erred in determining the extension of time application on the basis that FOS is a body that is not amenable to review under the ADJR Act. I will proceed on the basis that the error alleged in the third proposed ground of appeal set out at [30] above is intended to include particulars to that effect.

35    Immediately following the words I have recited above, there appears the heading “AFFIDAVIT”. Each of the 26 pages of the material that follows is signed by the applicant and apparently initialled by a justice of the peace. This portion of the annexure to the originating application contains 87 paragraphs of written material. Mr Bilaczenko confirmed that the document I have just described is an affidavit upon which he intended to rely in the proceedings before White J. He submitted that he had, in the proceedings before White J, mistakenly relied upon an earlier draft of that document. The mistake was said to have been caused by technical difficulties affecting Mr Bilaczenko’s personal computer. Mr Bilaczenko confirmed that he would seek leave to rely on the 26 page affidavit now before me, should he be granted leave to appeal. He confirmed that I should understand [2] of his grounds of appeal in that way.

36    There is then annexed to the originating application a document exceeding 500 pages. The annexure is, unhelpfully, not paginated. It consists of a combination of written materials apparently prepared by Mr Bilaczenko himself, together with documentary evidence upon which he seeks to rely on this application. There is also, among the material, a copy of the decision of Finkelstein J in Financial Industry Complaints Service Ltd v Deakin Financial Services Pty Ltd (2006) 157 FCR 229. I will treat that particular document as an authority upon which Mr Bilaczenko relies.

the respondents abide the event

37    The first to third respondents filed submitting notices confirming that they did not seek to be heard on this application. Only the second and third respondents have reserved their positions as to costs. Although the fourth respondent, ASIC, was served with the application, it filed no submitting notice on the basis that it did not consider itself to be a party that had been properly joined. It confirmed that position in a letter to Mr Bilaczenko, a copy of which has been provided to the Court.

CONSIDERATION

38    It is convenient to consider Mr Bilaczenko’s proposed grounds of appeal in reverse order.

Proposed Ground 3

39    By his submissions on this application, Mr Bilaczenko urged the Court to find that the FCC judgment was erroneous. He sought to demonstrate that the principle stated in Datafin applied so as to render FOS amenable to judicial review. His voluminous documentary materials largely concern that issue. They also concern the merits of the underlying complaints that Mr Bilaczenko had sought to have dealt with by FOS from 2006, presumably to demonstrate that FOS had committed reviewable errors in the discharge of its functions.

40    Mr Bilaczenko’s submissions were typified by this statement made in the course of his oral submissions:

… his Honour ruled that the decisions of the Financial Ombudsman were not amenable to do a judicial review. And I disagree. That’s what I’m here for. That’s what I would have liked to have done better in the first place.

41    Mr Bilaczenko’s submissions were misdirected. The submissions fail to recognise that the issue of the amenability of FOS to judicial review has been judicially determined previously in the FCC, and that his 2013 application for leave to appeal the FCC judgment had been refused by Mansfield J. He cannot erase that procedural history by seeking to demonstrate that the FCC or, for that matter, Mansfield J, erred in determining the question of whether FOS was amenable to judicial review in accordance with any principle stated in Datafin. The fact would remain that the issues had been judicially determined, albeit adversely to Mr Bilaczenko.

42    The third ground of appeal reflects Mr Bilaczenko’s repeatedly stated intention to agitate, on the proposed appeal itself, those same issues afresh. The material I have extracted at [32] above make that patently clear.

43    Mr Bilaczenko’s oral submissions and written materials do not effectively address the question to be determined on the application now before this Court. The question may be expressed in this way: is there sufficient doubt warranting reconsideration by the Full Court of White J’s determination that the District Registrars were correct in determining that the proposed actions constituted an abuse of process because they sought to re-agitate issues that had already been judicially determined?

44    In my opinion, that question must be answered no.

45    It is neither necessary nor appropriate in these reasons to embark on an examination of whether the Datafin principle applies to FOS in the performance of its contractual obligations, for three reasons. First, as I have said, the issue does not properly arise for determination on this application. Second, and relatedly, even if I were to determine that issue in favour of Mr Bilaczenko, it would not follow that his proposed actions did not constitute an abuse of process. Third, determining that issue would not yield an answer to the question of whether each of the FOS determinations was properly to be regarded as a “decision under an enactment” for the purposes of the ADJR Act. Mr Bilaczenko did not address that discrete issue before me. I do not propose to consider or determine it of my own motion because, coming full circle, the issue was judicially determined by the FCC in 2013.

Proposed Ground 2

46    By this ground, Mr Bilaczenko alleges that he was, in the proceedings before White J, deprived of an opportunity “to amend the originating affidavit”. I am not satisfied on the material before me that Mr Bilaczenko was deprived of any such opportunity in such a way that casts doubt on the correctness of the decision of the primary judge. Rather, Mr Bilaczenko seeks to adduce on the proposed appeal affidavit material that, by virtue of his own technical problems, he did not adduce at the hearing before White J.

47    I have nonetheless assessed the merits of this proposed ground of appeal by asking whether the amended affidavit could have materially altered the outcome, had it been read by White J at first instance. In my opinion, it would not have. The affidavit reinforces my conclusion that Mr Bilaczenko sought, on the proposed applications, to relitigate questions that had already been judicially determined.

Proposed Ground 1

48    On his application for an extension of time, the onus was on Mr Bilaczenko to demonstrate precisely what documents he had lodged for filing in the Registry in 2015.

49    Mr Bilaczenko stated on this application that the Associate to White J had invited him by email to provide the Court with all of the materials that had been refused for filing by District Registrar Bochner. He claims that technical difficulties prevented him from receiving that email and that he had assumed that District Registrar Bochner had provided White J with all of the documents.

50    As I have said, the reasons of White J confirm that Mr Bilaczenko did not himself provide copies of those documents to the Court in support of his application for an extension of time to commence judicial review proceedings against the District Registrars. Instead, the Court invited Mr Bilaczenko to confirm that two documents forming a part of the Court’s record were those that he had sought to file in the Registry. In response to that invitation, Mr Bilaczenko did in fact confirm that the primary judge was in possession of the correct documents. He made no reference to the existence of any additional materials he might have lodged for filing. It follows that I am not satisfied that White J proceeded on an erroneous assumption as to the documents Mr Bilaczenko had sought to file.

51    I have, in any event, had regard to the subject matter of the additional documents that Mr Bilaczenko states that he sought to file in the Registry, whether in July 2015 or September 2015 or both. The materials are contained in a box marked for identification in this proceeding MFI-A1. The materials comprise hundreds of printed pages and a further 22 compact discs containing images and other data. Many of the documents are replicated in the annexures to the originating application in the present action. The documents go to the question of whether the Datafin principle applies to FOS and to the underlying issue of whether FOS committed errors in dealing with Mr Bilaczenko’s underlying complaints concerning “stockbroker fraud”.

52    The additional material does not assist Mr Bilaczenko on this application. To the contrary, the material serves only to reinforce the conclusion of White J that, by the proposed actions, Mr Bilaczenko sought to relitigate the same matters that had been determined in the FCC proceedings in 2013. Accordingly, even if Mr Bilaczenko could demonstrate that he had been deprived the opportunity to have his application before White J decided on the basis that he had sought to file the additional materials in the Registry in July and/or September 2015, there is no reasonable basis upon which he could argue, on appeal, that the materials could or would have altered the outcome at first instance.

53    Before concluding, I should note that Mr Bilaczenko’s proposed grounds of appeal did not challenge White J’s conclusion that the joinder of ASIC as a party in the proposed actions did not alter the circumstance that the proposed actions constituted an abuse of process. The joinder of ASIC was, however, the subject of written submissions before me. Even assuming that Mr Bilaczenko properly advanced a proposed ground of appeal going to that issue, White J’s conclusion that no remedy had been sought against ASIC in the proposed actions is not attended with sufficient doubt so as to warrant reconsideration of that issue by the Full Court.

NO SUBSTANTIAL INJUSTICE

54    I have, in dismissing this application, given consideration to the circumstance that White J refused to allow the application for an extension of time by reference to the merits of Mr Bilaczenko’s application for judicial review, and to the circumstance that Mr Bilaczenko’s explanation for the delay in commencing the application had been accepted as adequate.

55    The order refusing the extension of time, being interlocutory in nature, is one in respect of which there is no right of appeal except with the leave of this Court. Had Mr Bilaczenko been granted the extension of time, he would have enjoyed a right of appeal to the Full Court from any judgment dismissing the substantive application on its merits. In circumstances where there is an acceptable explanation given for the delay, and where no prejudice is said to have been suffered by the proposed respondents on the appeal, the Court should not refuse an application for an extension of time under s 11 of the ADJR Act unless satisfied that the proposed grounds of review are hopeless or, to adopt a like expression, have no reasonable prospects of success. In my opinion, the misapplication of that test may result in substantial injustice of the kind warranting the grant of leave to appeal: compare MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110, AZAFX v Federal Circuit Court of Australia [2016] FCA 1139. As explained by Burchett J in Sharp, the question of whether an applicant may suffer substantial injustice cannot be considered in isolation from the question of whether the judgment of the Court at first instance is attended with sufficient doubt so as to warrant reconsideration on an appeal.

56    Notwithstanding Mr Bilaczenko’s lengthy and detailed written submissions on this application, I am satisfied that White J adopted the correct test in determining the application for an extension of time. It is clear from the reasons of White J as a whole that his Honour considered the proposed application for review of the District Registrars’ decisions to be hopeless. I respectfully agree with his Honour’s conclusion.

57    The application for leave to appeal should be dismissed.

COSTS

58    There is to be no order as to costs in favour of the first and fourth named respondents.

59    I will make orders providing for the filing and service of applications for costs (if any) by the second and third respondents.

60    I will otherwise hear Mr Bilaczenko as to costs.

Associate:

Dated:    11 October 2016

SCHEDULE OF PARTIES