FEDERAL COURT OF AUSTRALIA

Coady v Yachting Victoria [2017] FCA 1290

ORDERS

THE COURT ORDERS THAT:

1.    The proceeding be dismissed with costs.

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

REASONS FOR JUDGMENT

PAGONE J:

1    Ms Stephanie Coady applies for leave to appeal from two orders made by Judge McNab of the Federal Circuit Court on 6 April 2017. The first order from which leave to appeal is sought dismissed, pursuant to r 13.10 of the Federal Circuit Court Rules 2001 (Cth), certain paragraphs of her points of claim. The second was an order reserving the costs of the application for summary dismissal of her proceedings. Ms Coady requires leave to appeal pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth).

2    The application for leave to appeal from his Honour’s orders arises in the context of an ongoing application in the Federal Circuit Court by Ms Coady against Yachting Victoria Inc (“Yachting Victoria”) for discrimination in alleged contravention of s 22 of the Sex Discrimination Act 1984 (Cth). Yachting Victoria was the organising authority which had conducted a yachting regatta in December 2014 in which Ms Coady had sought to participate. The regatta was known as the ISAF Sailing World Cup Melbourne and was conducted under the racing rules of sailing of the International Sailing Federation. Ms Coady and her father registered to compete in the regatta in a class known as the Men’s 49er. They took part in some races on 8 and 9 December but they were both excluded from the regatta on 9 December 2014. The exclusion followed a decision of an international jury convened under the ISAF racing rules and Ms Coady contends that she was excluded from the race because of her sex in contravention of s 22 of the Sex Discrimination Act 1984 (Cth).

3    She commenced proceedings in the Federal Circuit Court of Australia seeking a remedy in relation to her exclusion, and on 16 September 2016 articulated her claims against Yachting Victoria in points of claim. On 31 October 2016 Yachting Victoria filed its defence to the points of claim and also applied for summary judgment in its favour under s 17A of the Federal Circuit Court Act 1999 (Cth) or in the alternative for an order that the proceeding be dismissed under r 13.10 of the Federal Circuit Rules 2001 (Cth). The application was heard on 3 February 2017 and on 6 April 2017 orders were made by Judge McNab which included the order pursuant to r 13.10 of the Federal Circuit Rules 2001 (Cth) dismissing claims in certain parts of Ms Coady’s points of claim, and also the order reserving the costs of the application for summary dismissal.

4    The parties agreed about the principles to be applied in determining whether leave to appeal should be granted as those found in Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399:

In Sharp v Deputy Commissioner of Taxation (Cth) (1988) 88 ATC 4,184 at 4,186 (and see also Mennan Pty Ltd v Cockburn Cement Ltd [1989] 11 ATPR 49,951 at 49,954; Tetijo Holdings Ply Ltd v Keeprite Australia Pty Ltd (unreported, French J, 15 January 1991) Burchett J stated the “major consideration[s]”, to be applied by the court upon an application for leave, for which Niemann (supra) is authority. The first test, which relates to the prospects of the proposed appeal, is “whether, in all the circumstances, the decision is attended with sufficient doubt to warrant its being reconsidered by the Full Court”. The second

“is whether substantial injustice would result if leave were refused, supposing the decision to be wrong.

…

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.”

In our opinion, the major considerations to be derived from Niemann do provide an appropriate litmus test for the general run of cases in which leave to appeal from an interlocutory decision is sought. If differently constituted courts are to give consistent rulings, it is necessary that they be guided by relevant principles. There is a considerable body of authority which supports the approach taken in Niemann. But we do not understand the judges who decided Niemann to have laid down any rigid rules that might destroy a court's discretion in all cases but those falling within them. That, so far as this Court is concerned, would be contrary to the unqualified terms of s 24(lA) of the Federal Court of Australia Act 1976 (Cth) which confer on the court an unfettered discretion.

The application of these principles requires consideration of the decision from which leave is sought to determine whether in all the circumstances the decision is attended by sufficient doubt to warrant its being reconsidered and whether substantial injustice would result if leave were refused supposing the decision to be wrong. The application of these principles is cumulative, although they bear on each other: see Sekigawa v Minister for Immigration and Border Protection (2016) 237 FCR 276 at [12]; ACE Insurance Ltd v Trifunovski (2012) 291 ALR 46 at [6]; Cavar v Greengate Management Services Pty Ltd [2016] FCA 961 at [5]. Ms Coady submitted that she should be granted leave to appeal because the decision from which leave is sought is attended with sufficient doubt to warrant it being reconsidered and that substantial injustice would result if leave were refused supposing the decision to be wrong.

5    Ms Coady had made a number of claims against Yachting Victoria in the Federal Circuit Court proceedings of discrimination contrary to s 22 of the Sex Discrimination Act 1984 (Cth). Yachting Victoria had sought summary judgment or dismissal of the entire proceedings on the basis that all of Ms Coady’s claims against it were hopeless, were bound to fail or had no reasonable prospects of success. His Honour did not accept the submissions by Yachting Victoria that Ms Coady did not have reasonable prospects of success in relation to a claim on the grounds that she had been excluded from a men’s yachting event because she was a woman, but determined that some grounds had no prospects of success and ordered that those grounds of the claim in paragraphs 12, 14(b) and (c), 16(a)(ii), (b) and (c), 18(a) and (b) of the points of claim be dismissed pursuant to r 13.10.

6    Ms Coady contended in the application for leave to appeal that she has been denied procedural fairness by the dismissal of those paragraphs because the decision to dismiss the paragraphs did not reflect the nature of the hearing of the application which had been made by Yachting Victoria and because his Honour’s decision was based on a misconstruction of certain rules which applied to the regatta. The application by Yachting Victoria was, as already mentioned, for summary judgment pursuant to s 17A of the Federal Circuit Court Act 1999 (Cth) or, in the alternative, for an order pursuant to r 13.10 of the Federal Circuit Court Rules 2001 (Cth) that the proceedings be dismissed. The application, in other words, did not in form seek dismissal of particular claims or the striking out of particular paragraphs within the claims, but, rather, sought summary judgment or dismissal in favour of Yachting Victoria in respect of all of the grounds claimed by Ms Coady in her points of claim.

7    In disposing of that application his Honour engaged with the issues raised by the respondent’s interlocutory application by identifying the grounds of Ms Coady’s claims which his Honour considered had, and those which his Honour considered did not have, prospects of success. His Honour sought to do that by identifying those paragraphs within the points of claim which related to those grounds of her claim which he considered had no reasonable prospects of succeeding and ordered that those paragraphs be dismissed. His Honour ordered the dismissal of paragraphs 12, 14(b) and (c), 16(a)(ii)(b) and (c), and 18(a) and (b) of Ms Coady’s points of claim. At [45] his Honour had concluded that Ms Coady had not provided any basis for the allegation that officials of Yachting Victoria followed the boat which had been sailed by her. That had been the factual allegation in paragraph 12 of her points of claim which his Honour ordered be dismissed. At [42] his Honour had determined that claims made by Ms Coady in relation to the effect of findings by the international jury against her father were highly problematic and had no reasonable grounds of success. Those had been the factual allegations in paragraphs 14(b) and (c) of her points of claim which his Honour ordered be dismissed. At [47] his Honour had determined that Ms Coady had no reasonable prospects of success in relation to a claim that Yachting Victoria had any responsibility for the conduct of other competitors who were said to have verbally abused her because she was a woman competing in a man’s event. That had been the factual allegation in paragraph 18(a) of the points of claim which his Honour ordered be dismissed. His Honour also ordered the dismissal of the bulk of the allegations in paragraph 16 of the points of claim, although he did not refer to the paragraph in his reasons. Paragraph 16 had alleged that certain acts of a Mr Papantoniou were done as an employee or agent of Yachting Victoria. The paragraphs which his Honour ordered to be dismissed were those linked to the matters in paragraphs 12 and 14 of the points of claim and, although not expressly referred to in his Honour’s reasons, it can reasonably be concluded that his Honour’s reasons for ordering the dismissal of parts of paragraph 16 were consequential upon his decision in relation to the matters alleged in paragraphs 12 and 14. It can be seen, therefore, that the orders made by his Honour were the consequence of his Honour’s conclusions from a dispute about whether any of the grounds of Ms Coady’s claim had reasonable prospects of success. The only exception to that conclusion would seem to be his Honour’s order dismissing paragraph 18(b) which may have been a slip. The allegation in 18(b) was that Ms Coady was humiliated by her exclusion and his Honour’s reasons do not consider paragraph 18(b).

8    Ms Coady’s claim that his Honour denied her procedural fairness therefore has insufficient prospect of success to warrant the grant of leave to appeal except in relation to the possible error of having included paragraph 18(b) in the orders. An application for leave to appeal is not the same as the hearing of the appeal, and the appeal itself, if leave to appeal were granted, is not a hearing de novo (Railpro Services Pty Ltd v Flavel (2015) 242 FCR 424 at [77]) but the exercise of appellate jurisdiction for the correction of error (Robertson v Knott Investments Pty Ltd (No 3) [2010] FCA 1074 at [33]). A litigant may be denied procedural fairness by a primary judge making findings without forewarning: see Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commissioner [2016] FCAFC 184. In that case the primary judge was found to have denied procedural fairness to the appellants by making a finding, without forewarning the appellants, based on evidence which had been located in a lengthy and complex financial report which had been tendered specifically for reasons other than the findings which were made by his Honour. The Chief Justice at [17] described the issue which had been found by the primary judge as being “a matter of some gravity” which “should have been raised with the parties for it to be relied upon”. Jessup J (with whom Allsop CJ and North J agreed) described the evidence relied upon by his Honour as having been “buried” in a “lengthy and complex financial report which was tendered specifically for other reasons”. At [82]-[84] his Honour said:

82    Does the reasoning in these Full Court judgments support the Director’s submission in the present case? Including notes but not the auditor’s report, the branch accounts were a 26-page document. They were part of an exhibit to the affidavit of Brendan James Charles sworn on 26 November 2015 which was read, without objection, by counsel for the Director at the hearing before the primary judge. Counsel used the exhibit to establish Mr Myles’ position in the branch, and then made the following submission to her Honour:

Whilst your Honour has the affidavit, the only other aspect of it which we directly rely upon are paginated pages 169 and 170 … [w]hich show as at the year ended 31 December 2014, on 169, the CFMEU had a net surplus from its operations of $2,982,143, and that it has net assets of fifty-eight and some — over 58 million in cash, and cash equivalents of over 14 million, and those matters are dealt with in our submissions. They’re the only aspects of those matters that we rely upon, and we don’t put it that because they have a lot of money they should be penalised a lot of money, but, obviously, there’s no question of any discount or mitigation, having regard to capacity to pay.

Page 169 was the Profit and Loss Statement and page 170 was the Statement of Financial Position, setting out the assets and liabilities of the branch. The line entry “operating grant receipts” appeared not on either of these pages but on page 172, which was the Statement of Cash Flows.

83    It is apparent that, on the facts, the present case does not come within the principle for which Sinnathamby and Telstra are authority. This involved more than a failure to disclose a reasoning process. The evidence on which the primary judge relied was buried (I do not believe that to be too harsh a metaphor) in a lengthy and complex financial report which was tendered specifically for other reasons. Not only did counsel for the Director make no reference to the controversial line entry — as the extract set out above shows, he made it clear that the passages in the report to which he did refer, and those passages alone, were the ones on which he relied.

84    Neither was the financial report of such a nature that the relevance of its contents would reasonably have been self-evident to the appellants. As a document, it was not controversial. The litigation was not about the branch’s financial affairs. Rather, the report was tendered as incontestable evidence of those specific matters to which counsel for the Director referred in his submissions to her Honour. In my view, the appellants were entitled to take counsel at his word, and to conduct their defences by reference to the premise that the financial report would be used only for the purposes stated.

The facts of that case stand in contrast with those of the present. The application before his Honour in the present case had been for summary judgment on the basis that the whole of the proceeding was to be determined in favour of Yachting Victoria against the applicant. The course adopted by his Honour was not that specifically sought in the application by Yachting Victoria, nor had it been raised by his Honour in form before decision, but the viability of each of the causes of action raised by Ms Coady had been put in issue and was the subject of the proceeding before his Honour. Each of the particular grounds of Ms Coady’s claim was challenged by Yachting Victoria as part of the challenge to the entire claim and each was necessary to be defended. It was by that process that his Honour was persuaded that some claims had prospects of success but that others did not. The orders made by his Honour gave effect to his conclusion upon the issues raised and engaged by the parties, and Ms Coady was not denied procedural fairness by his Honour making orders giving effect to the disposition of the issues in dispute as they had been raised and engaged by the parties.

9    The Federal Circuit Court is not a court ordinarily governed by pleadings and the points of claim should not be construed otherwise. Ms Coady had brought a claim of discrimination which Yachting Victoria contended to have no reasonable prospects of success. A hearing was conducted in which the parties were heard and had filed written submissions. His Honour held that part of the claim had no reasonable prospect of success consistently with the submissions which had been made on behalf of Yachting Victoria, but decided that part of the claim did have reasonable prospects of success consistently with the submissions which had been made on behalf of Ms Coady. His Honour may not have notified the parties in advance of his decision that he might decide partly in favour of one party and partly in favour of the other party but the claim that Ms Coady had not been given an opportunity to be heard, as articulated in the draft notice of appeal, has insufficient foundation to cast doubt upon the correctness of the decision to warrant the grant of leave to appeal.

10    The draft notice of appeal also sought leave to appeal on the basis of what was said to have been his Honour’s misconstruction of the effect of rr 89.2 and 91(b) of the Racing Rules of Sailing. In particular at [43] his Honour described the effect of r 91(b) to be that the jury “is” appointed by the ISAF under r 89.2 where the event is an ISAF event. Counsel for Ms Coady conceded that his Honour would not have been in error if the word “is” had been replaced by “may be”, because, as a consideration of r 89.2 reveals, it would not be accurate to say (on the assumption that his Honour should be understood to have said) that a jury was necessarily to be appointed by the ISAF. The appointment of the jury by the ISAF was, in other words, one of the options available rather than the only option under the rules. The supposed misconstruction by his Honour of the effect of r 91(b), however, did not affect the way in which his Honour decided the matter before him. At [44] his Honour expressed his conclusion that Ms Coady had no prospects of succeeding in a claim which asserted that the international jury was acting as an agent of the organising authority when it deliberated in relation to the conduct of Mr Coady. That conclusion was reached because of his Honour’s view at [44], namely, that the scheme of the rules established that the international jury “works independently of the organising authority when making its decision”. The alleged mis-description of the effect of r 91(b), therefore, assuming it to be a mis-description, had no bearing upon a conclusion by his Honour in the case of a jury appointed by the ISAF under r 89.2

11    Several other proposed grounds of appeal in the draft notice, or which were in the written submissions or emerged from oral argument on the application, disappear when his Honour’s reasons are properly understood. The central case by Ms Coady was of her exclusion from the regatta on the basis of her sex. The claims which his Honour determined against Mr Coady were identified and explained at paragraphs [42]-[48] as follows:

42.    The claims made in relation to the effect of findings by the International Jury against Mr Coady are highly problematic and in my view have no reasonable grounds of success.5 The racing rules make provision for the organising authority to appoint a race committee and when appropriate a protest committee and umpires (r.89.2). That rule provides further:

However, the race committee, an international jury and umpires may be appointed by the ISAF as provided in the ISAF regulations.

43.    Rule 91(b) provides that where the event is an ISAF event, the jury is appointed by the ISAF under r.89.2 and therefore not by the organising authority. Rule N1.1 under Appendix N to the rules provides:

An international jury shall be composed of experienced sailors with excellent knowledge of the racing rules and extensive protest committee experience. It shall be independent of and have no members of the race committee, and be appointed by the organising authority, subject to approval by the national authority if required (see rule 91 (b)), or by the ISAF under rule 89.2(B).

44.    In my view, the scheme of the rules, which were tendered into evidence, establishes that the International Jury works independently of the organising authority when making its decision. Given that the event was an ISAF event, the jury was appointed by that body rather than the organising authority. I do not believe that the applicant has any reasonable prospect of succeeding in a claim that asserts that the International Jury was acting as an agent of the organising authority when it deliberated in relation to the conduct of Mr Coady.

45.    The applicant has not provided any basis for the allegation that officials of the respondent followed the boat sailed by the applicant.6 There has been no basis set out for the allegation that the International Jury, convened under the rules of racing, are officials of the respondent and no submission was put by the applicant in support of that claim that the jury or officials (undefined) were employees or agents of the respondent.

46.    The substance of the applicant’s claim is that she was excluded from the regatta and her results were not recorded. The claims involving her father, who is not a party, will unduly prolong the hearing of this matter and are not necessarily a part of the claim. The allegation in paragraph 14(c)(1) in relation to the conduct of Mr Coady before the International Jury, does not impact on the claim of discrimination on the grounds of sex made by the applicant.

47.    In relation to the claim of damage said to have been suffered by the applicant, I do not accept the applicant has any reasonable prospect of success in relation to a claim that the respondent has any responsibility for the conduct of other competitors who are said to have verbally abused the applicant because she was a woman competing in a men’s event.7

48.    Similarly I find that the applicant has no reasonable prospect of successfully establishing that the International Jury’s findings against her father of gross misconduct, gross breach of the rules, bad manners, and poor sportsmanship constitute discrimination against her on the grounds of sex. Those findings were made against Mr Coady. The applicant was not present at the hearing before the International Jury where it is alleged that he said things to the jury members.

The proposed ground of appeal that his Honour gave no, or inadequate, reasons for his decision has no prospect of success in light of these reasons. The notice of appeal, for example, proposed as a ground that his Honour had erred “in finding that the appellant had not provided a basis for the allegation that the international jury were officials of the respondent”, but the ground expressed in those terms does not sufficiently engage with his Honour’s reasons. It is true that at [45] his Honour had said that Ms Coady had not “provided any basis for the allegation that officials of” Yachting Victoria had followed the boat she sailed and that there had “been no basis set out for the allegation that the International jury, convened under the rules of racing, are officials of the respondent”, but such statements in his Honour’s reasons were not findings of fact upon evidence. His Honour was explaining, rather, why his earlier conclusion at [44] that the international jury working independently of organising authorities meant that the agency or employment relationship which had been alleged could not succeed. To complain, as counsel for Ms Coady sought to do in the application, of a “finding” on no or insufficient evidence thus misunderstands what his Honour was doing and establishes no error to warrant the grant of leave to appeal.

12    It may not be necessary to deal with each of the other individual actual, potential or suggested, grounds of appeal in great detail, but for the sake of completeness it may be desirable to say something about each of them. In doing so it may assist to bear in mind that it was not easy to discern a clear and exact relationship between the orders made in respect of which leave to appeal was sought, the proposed grounds of appeal and the submissions in support of the proposed grounds of appeal. The orders made by his Honour were, as explained above, essentially to dismiss grounds in an application to a court without pleadings by identifying where those grounds appeared in points of claim and dismissing those paragraphs. The draft notice of appeal purported to identify errors in his Honour’s reasons without sufficiently articulating the content or particular which was claimed to be erroneous. The written submissions, for their part, did not in terms address the proposed grounds of appeal although they sought to address matters in the draft notice of appeal and the terms of his Honour’s orders.

13    It might seem curious, on the face of the points of claim, for a paragraph such as that paragraph 12, to be “dismissed”. The paragraph on its face contained a factual assertion rather than expressed a claim. The fact asserted in paragraph 12 was:

Officials of the respondent including members of the respondent’s international jury followed the applicant’s boat during the 3 further races in which she participated on 9 December 2014.

The application which Yachting Victoria had made was not to strike out paragraphs from a statement of claim but, rather, for a claim to be dismissed. It follows, as mentioned above, that his Honour’s orders must be understood as the consequence of dismissing claims rather than the determination of a pleadings summons or a strike out application. His Honour’s decision to dismiss the claim in paragraph 12 cannot, therefore, be understood as if paragraph 12 stood in isolation. It was one element of a series of matters which together made up one of the complaints brought by Ms Coady against Yachting Victoria. Others included what was set out in paragraphs 14(b) and (c), 16(a)(ii), (b) and (c), 18(a) and (b) of the points of claim.

14    The relevant part of what appeared in paragraph 14(b) and (c) were also expressed as facts leading to that part of Ms Coady’s claim of the actions of the International jury being those of Yachting Victoria as employee or agent. Paragraph 14(b) and (c) relevantly stated:

On 9 December 2014 the respondent excluded the applicant from further participation in the Regatta by reason that she is female:

…

(b)    the respondent convened an international jury to hear allegations that Paul Coady was guilty of gross misconduct in participating in the Regatta by reason that the applicant was female;

(c)    the international jury of the respondent determined:

(i)    that Paul Coady was guilty of committing gross misconduct, gross breach of the rules, bad manners, poor sportsmanship and exhibited poor conduct by competing in breach of the rules by reason that the applicant was female;

(ii)    that the applicant’s boat was not eligible to compete in the men’s 49er class by reason that the applicant was female; and

(iii)    that the applicant’s boat was excluded from the Regatta, that all scores were to be disregarded and that no ISAF ranking points were to be awarded from the Regatta.

The link between these factual claims and the claims against Yachting Victoria was made in the points of claim by paragraph 16(a), (b) and (c) as follows:

16.    The acts of each of:

(a)    Mr Papantoniou, referred to (i) in the particulars to paragraphs 10 and (ii) in paragraph 14; and

(b)    the officials of the respondent, referred to in paragraph 12; and

(c)    the international jury, referred to in paragraphs 12 and 14, was done as an employee or agent of the respondent.

15    Ms Coady’s complaint that his Honour’s orders did not reflect the hearing before his Honour can have no prospect of success once it is understood that his Honour’s orders gave effect to the decision on the hearing as conducted. The hearing before his Honour was about whether claims made had prospects of success. His Honour’s decision, partly in favour of Ms Coady and partly in favour of Yachting Victoria, required the identification of those parts of the points of claim which his Honour considered had no reasonable prospects of success. That is not to say, however, for example, that a fact asserted in one of the paragraphs dismissed by his Honour might not be relevant evidence for the claim which his Honour decided remained against Yachting Victoria. It may be, for example, that facts within paragraph 12 may be relevant and probative as part of the evidence of the remaining claim against Yachting Victoria. Paragraph 12 was dismissed as part of the claim for the reasons explained by his Honour but evidence of the facts asserted in paragraph 12 may conceivably be relevant to the remaining claims that officials of Yachting Victoria had followed Ms Coady’s boat during the three further races in which she participated on 9 December 2014. The claim in paragraph 12 as formulated, however, had contained other assertions to the effect that the international jury were members of Yachting Victoria’s international jury and were officials of Yachting Victoria. It was appropriate for the claim as formulated to be dismissed whilst bearing in mind that the dismissal did not also make adverse findings of fact about the claims that his Honour had decided had prospects of success. The dismissal was also not a ruling about the relevance of evidence about the claims which remained in dispute in the proceeding for subsequent ultimate determination.

16    General claims in the application for leave to appeal of matters having been found by his Honour without evidence similarly misunderstand his Honour’s orders and reasons. His Honour had not embarked upon a hearing with evidence but upon the determination of whether the claims as brought by Ms Coady in the Federal Circuit Court had insufficient merit to proceed. The exclusion of that part of the continuing claim relating to Ms Coady’s father is an aspect of case management in respect of which his Honour gave reasons at [46], namely, that it was not central to the case maintained by her and would unnecessarily prolong the proceeding. Nothing was shown in the application for leave to appeal to indicate any error in the exercise by his Honour of the discretion concerning the management of the proceeding: AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; House v R (1936) 55 CLR 499.

17    The application for leave to appeal also sought, curiously, to appeal from his Honour’s order reserving costs. The written submissions for Ms Coady made no attempt to justify granting leave to appeal from the order made by his Honour reserving the costs of the application which he had determined. When pressed at the hearing of the application counsel for Ms Coady claimed that his Honour ought to have asked counsel whether they wished to be heard on the question of costs when his Honour delivered judgment on 5 April 2017. However, the order to reserve costs ensures the very thing which counsel for Ms Coady claimed his Honour had denied. His Honour’s order was for costs to be reserved and thereby preserved the rights of the parties to be heard about costs at an appropriate time. No one was denied costs, nor an opportunity to be heard on the question of costs, by his Honour’s order. The application for leave to appeal the costs order made by his Honour, therefore, lacks any merit and was ultimately not pressed.

18    Accordingly, leave to appeal will be granted only to appeal from his Honour’s order to dismiss Ms Coady’s claim to the extent that his Honour dismissed paragraph 18(b) unless the parties inform the Court that his Honour’s dismissal of paragraph 18(b) was agreed to be an error or that evidence of the matters alleged in paragraph 18(b) can be relied upon by Ms Coady (subject to relevance and admissibility) in the proceeding in the Federal Circuit Court on the claims determined by his Honour to have reasonable prospects of success. The proceeding will otherwise be dismissed with costs.

Associate:

Dated:    8 November 2017