FEDERAL COURT OF AUSTRALIA

Krajniw v Hunt [2017] FCA 483

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The appellant pay to the respondents’ the costs of and incidental to the appeal, to be taxed, if not agreed.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

LOGAN J:

1    On 25 February 2016, Collier J ordered, pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (Federal Court of Australia Act) and r 26.01 of the Federal Court Rules 2011 (Cth), that judgment be entered for the respondents against the present applicant, Mr Tony Krajniw in respect of a proceeding commenced by him by originating application. Her Honour further ordered that Mr Krajniw pay the respondents’ costs of and incidental to the proceedings.

2    On 10 February 2017, Mr Krajniw filed an application for an extension of time within which to seek leave to appeal against that judgment, together with, if an extension were granted, an application for leave to appeal. An extension of time is necessary because the time within which to seek leave to appeal against that judgment has long since passed. A grant of leave to appeal is necessary if there is to be any appeal, because the granting of summary judgment is an interlocutory judgment for the purpose of s 24(1)(a) of the Federal Court of Australia Act: see s 24(1D)(b) of that Act.

3    Principles relevant to the granting of an extension of time were helpfully summarised by Pagone J in Finch v The Heat Group (No 3) [2017] FCA 64 at [33]. It is always relevant to consider in respect of such an application whether injustice may arise by a strict application of the proscribed time limit. In considering whether an injustice may arise, it is, in turn, always relevant to consider, materially the likelihood that there would be a grant of leave to appeal. Obviously enough, another consideration which is always relevant is whether there is a satisfactory explanation for the delay in the filing of the application for leave to appeal. And the length of the delay itself is, axiomatically, also always relevant.

4    Both before her Honour and on the hearing of the present application, Mr Krajniw acted for himself. In the English case, Tinkler v Elliott [2012] EWCA Civ 1289, the Court of Appeal for England and Wales made the following observation in respect of litigants in person and acting within time limits proscribed by rules of court:

I accept that there may be facts and circumstances in relation to a litigant in person which may go to an assessment of promptness but, in my judgment, they will only operate close to the margins. An opponent of a litigant in person is entitled to assume finality without expecting excessive indulgence to be extended to the litigant in person.

5    A number of judges of this Court, including me, have regarded these sentiments as just as apt in relation to the practice of this Court: see Ejueyitsi v Bond University [2012] FCA 1514 at [16], a judgment of mine; Ioannou v Commonwealth of Australia (Department of Human Services) [2012] FCA 1228 at [26], McKerracher J; and Huang v University of New South Wales [2014] FCA 1337 at [26], Perry J.

6    Having regard to Mr Krajniw’s affidavit evidence, it is possible to, and I do, proceed on the basis that it was not until early April last year that he became aware of the giving of summary judgment and the reasons why summary judgment was given. Thereafter, he did attempt, albeit unsuccessfully, to file a challenge to that judgment in this Court. His reaction to that initial lack of filing success was, amongst other things, to write to the Chief Justice, seemingly on the understandable but misguided basis that the Chief Justice exercised some sort of supervisory role in relation to the exercise of judicial power by members of the Court.

7    The end result, though, as I read the material filed, was that by May 2016 he was appraised by a registrar of a means by which an adverse filing decision by a registrar could be challenged. He also made other complaints to other agencies, including some of the bodies politic or officers thereof, about the giving of summary judgment. For all that, it was not until February this year that an application in due form for an extension of time and grant of leave to appeal was filed.

8    Mr Krajniw made reference to his lack of legal training. He is, I understand, an engineer by profession, although now retired. He also made reference to the demoralising effect upon him of the adverse judgment in respect of his application in the original jurisdiction. He further made reference to his impecuniosity. He is apparently reliant on a pension for his primary source of income. All of these are all too human considerations but they do not, in themselves, in my view, provide an adequate explanation for a delay which, even on a benign view, is of some 10 months duration. That said, if there were a compellingly arguable case for a grant of leave to appeal, that may well tell against an explanation for delay which was not terribly compelling.

9    In respect of any grant of leave to appeal, the relevant considerations have long been regarded as settled by judgment of the Full Court, in the Decor Corporation Pty Ltd v Dart Industries Inc. (1991) 33 FCR 397. Those considerations may be summarised as follows:

(a)    Whether the decision below is attended with sufficient doubt to warrant being considered by the Full Court; and

(b)    Whether substantial injustice would result if leave were refused, supposing the decision below to be wrong.

10    In promoting his argument that leave to appeal ought to be granted, Mr Krajniw relied particularly on his written submission, as enlarged upon in the course of oral submissions. His written submission is replete with intemperate language. There may well, though, be good reason why he chooses to express himself in that fashion. I take Mr Krajniw to be an honest man. His submission includes a reference to his having been, in his early childhood, a prisoner at the concentration camps maintained by the Nazi German regime at Dachau and Buchenwald. That particular formative experience may well explain why it is that he has reacted with such vehemence to perceived unlawful behaviour by agencies of government.

11    The pleading of the application brought in the original jurisdiction by Mr Krajniw is diffuse in expression. The learned primary judge, in my respectful opinion, made an heroic endeavour to analyse that pleading so as to discern causes of action known to law and, in particular, causes of action within the jurisdictional remit of this Court. I do not propose to repeat that analysis. It suffices to state that I agree with it.

12    The federal jurisdictional basis for the application on as fair a reading as possible of it, is that of a proceeding for injunctive relief under s 475 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the Environment Act) and related relief.

13    In turn, the factual foundation for the seeking of that relief is in respect of alleged contraventions concerning land owned by the Brisbane City Council (Council) at 1825 Creek Road, Cannon Hill and, in particular, a colony of squirrel glider possums located, so Mr Krajniw deposes, on that land. The land concerned is being developed as a golf course and related luxury residential complex by the fifteenth respondent, BMD.

14    Both BMD and the Council have the benefit of a decision made on 18 November 2005 by a delegate of the Minister for Department of the Environment and Heritage pursuant to s 75 of the Environment Act (s 75 decision). By that decision, the delegate decided that the proposed action in respect of a subdivision, golf course and related facilities on the land was not, for the purposes of that Act, a controlled action. That decision remains on foot.

15    The s 75 decision also has a very particular impact upon Mr Krajniw’s prospects of challenging the judgment. Section 18 of the Environment Act prohibits certain actions which have a significant impact on listed threatened species or an endangered community without approval under that Act. Section 18 must be read as subject to, materially, s 19 of that Act, in particular, s 19(3)(b). That provides that s 18 does not apply to an action if there is in force a decision of the Minister under Div 2 of Pt 7 that the subsection is not a controlling provision for the action. The s 75 decision is one which engages that exception.

16    Section 20 of the Environment Act provides for a requirement for approval of activities which have a significant impact on listed migratory species. The application of that section is likewise the subject of an exception where there is a s 75 decision: see s 20(2)(c). The same observation may be made in respect of the offence provision in respect of listed migratory species in s 20A of the Environment Act: see s 20A(4)(c).

17    Thus, even though the Environment Act is benign in respect of a conferral of standing to enforce by application for injunction compliance with its terms, the burden faced by Mr Krajniw is that the decision of the Minister’s delegate engaged statutory exceptions. That engagement would remain even if there were, after that decision, a listing in respect of the squirrel glider possums or, for that matter, any other species in respect of the welfare and preservation of which Mr Krajniw has a genuine concern: see s 158A of the Environment Act.

18    The Environment Act also prohibits the taking of controlled action as defined by s 67: see s 67A. At present, though, the position is that the actions of BMD are not controlled actions, because of the s 75 decision.

19    In short then, it appears to me that the invocation of this Court’s jurisdiction under the Environment Act by the originating application was always colourable. It was always colourable in the face of the s 75 decision.

20    Regard to Mr Krajniw’s pleadings and his outline of submissions in respect of his present application discloses wide ranging grievances on his part in respect of the development of the land and the related threat which he apprehends that development poses to the squirrel glider possums (and other species for that matter). There has been litigation concerning the development in the Planning and Environment Court and, on at least one occasion, an appeal from that court to the Queensland Court of Appeal. This Court has no jurisdiction in respect of state planning and environment legislation. Nor does it have any planning and environment jurisdiction in respect of other decisions of the Brisbane City Council or, for that matter, decisions of State Ministers or officials under any state legislation which may be pertinent to the development of the subject land.

21    It may be accepted that both BMD, as the developer, and the Council, as the owner of the land, were and are apt respondents in respect of a proceeding under the Environment Act. Quite how, though, the other named respondents, be they officers of the State of Queensland or individual officers of the Council, are and ever were appropriate respondents remains elusive.

22    In my view, this is not a case in respect of which Mr Krajniw enjoys sufficient prospect of success to warrant a grant of leave to appeal. Indeed, I respectfully agree with the judgment of the learned primary judge by which her Honour disposed summarily of the originating application. That being so, it would not matter even if there were an acceptable explanation for delay. The case, however one approaches it, be it through the prism of an extension of time or, even assuming that an extension were granted, through the prism of an application for leave to appeal unimpeded by an extension necessity, is without any merit. For these reasons, the application will be dismissed.

Associate:    

Dated:    9 May 2017

SCHEDULE OF PARTIES