Federal Court of Australia

Roberts-Smith v Roberts [2022] FCA 524

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal dated 7 February 2022 be dismissed.

2.    The applicant pay the respondents’ costs.

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

REASONS FOR JUDGMENT

WIGNEY J:

1    On 1 June 2021, Mr Ben Roberts-Smith VC MG sought and obtained interlocutory relief against his former wife, Ms Emma Roberts. That interlocutory relief included, in summary, an order that required Ms Roberts to deliver up to the Court any information in her possession, custody or control which had been obtained from Mr Roberts-Smith’s email account with RS Group Australia Pty Ltd and an order that Ms Roberts provide an affidavit to the Court which deposed to, amongst other things, her “strict compliance” with the delivery up order, the circumstances in which she had obtained the information delivered up, and the identity of any persons to whom she had provided access to the information (the June interlocutory orders). Mr Roberts-Smith and Ms Roberts were both directors of RS Group at the time. The final relief sought by Mr Roberts-Smith in the proceeding commenced by him was an order which, in summary, restrained Ms Roberts from using, disseminating or destroying any information she had obtained from Mr Roberts-Smith’s email account.

2    Ms Roberts delivered some documents to the Court and filed an affidavit in accordance with the June interlocutory orders. Her compliance with the orders, however, became the subject of heated controversy, at least so far as Mr Roberts-Smith was concerned. He contended, amongst other things, that Ms Roberts’s affidavit was deficient and did not disclose all of her dealings with the information in question. The controversy culminated in Mr Roberts-Smith filing further interlocutory applications in which he sought an order that Ms Roberts attend court to be examined in relation to her compliance with the interlocutory orders, and that two other persons, Ms Danielle Scott and Mr Darren Pill, be joined to the proceeding (the further interlocutory applications). Ms Scott was a close friend of Ms Roberts and Mr Pill was Ms Scott’s husband.

3    Mr Roberts-Smith’s interlocutory applications were filed and pursued against the backdrop of highly charged defamation actions that Mr Roberts-Smith had commenced against various media organisations and journalists. It was expected at the time that Ms Roberts would give evidence in the media respondents’ defences to those actions. The allegation that essentially lay behind the proceeding commenced by Mr Roberts-Smith against Ms Roberts was that Ms Roberts had accessed confidential information in his email account and passed that information on to the media respondents in the defamation proceedings.

4    Ms Roberts opposed the making of an order that she be examined in court in respect of her compliance with the June interlocutory orders. She remained neutral in relation to the joinder application. Mr Roberts-Smith vigorously pursued the further interlocutory applications, perhaps unsurprisingly in all the circumstances. Numerous affidavits were sworn or affirmed, and read in support of or in opposition to, the further interlocutory applications. Those affidavits included at least four affidavits sworn by Mr Roberts-Smith and three affidavits sworn by Ms Roberts, as well as affidavits sworn by Mr Roberts-Smith’s solicitor and an affidavit affirmed by RS Group’s director and accountant.

5    In her affidavits, Ms Roberts maintained that she had complied with the June interlocutory orders and sought to explain what were said to be errors or omissions in the affidavit which she had initially furnished in compliance, or purported compliance, with those orders. Mr Roberts-Smith’s affidavits sought to demonstrate that Ms Roberts had not been full and frank in detailing her compliance with the June interlocutory orders.

6    None of the deponents of the affidavits were cross-examined.

7    The primary judge dismissed the further interlocutory applications: Roberts-Smith v Roberts [2022] FCA 18 (Judgment).

8    In relation to the application to examine Ms Roberts, the primary judge found, in summary: that Ms Roberts had “overall provided full and frank responses to multiple assertions by Mr Roberts-Smith” concerning her alleged non-compliance, or deficient compliance, with the June interlocutory orders (Judgment at [136]); that Mr Roberts-Smith’s “litany of complaints” provided no “proper basis” for any concern that Ms Roberts had “concealed the true position” (Judgment at [141]); and that “[n]o sufficient basis ha[d] been established for the examination of Ms Roberts on the limited question of compliance with the … orders”: Judgment at [142].

9    In relation to the joinder application, the primary judge considered that the “thrust” of Mr Roberts-Smith’s case for the proposed joinder was that it could be inferred from the evidence adduced by him that Ms Roberts must have provided information to Ms Scott and Mr Pill to enable them to access Mr Roberts-Smith’s email account: Judgment at [145]. His Honour held, however, that there was no basis for disbelieving Ms Roberts’s evidence that she had not provided Ms Scott and Mr Pill, or anyone else, with access to Mr Roberts-Smith’s email account and that the basis for the joinder application accordingly “falls away”: Judgment at [145]-[146].

10    Mr Roberts-Smith filed an application for leave to appeal the primary judge’s dismissal of the further interlocutory applications. The leave application was listed before a single judge of the Court to determine whether leave should be granted or refused, or whether a direction should be made that the application be heard and determined by a Full Court: see s 25(2)(a) and (e) of the Federal Court of Australia Act 1976 (Cth) (FCA Act).

11    Ms Roberts opposed the grant of leave. Neither party submitted that a direction should be made that the application be heard and determined by a Full Court.

12    Mr Roberts-Smith’s application for leave to appeal should be dismissed with costs for the reasons that follow.

LEAVE TO APPEAL – RELEVANT PRINCIPLES

13    An applicant for leave to appeal must generally demonstrate: first, that the decision in question is “attended with sufficient doubt to warrant its being reconsidered by the Full Court”; and second, that “substantial injustice would result if leave were refused, supposing the decision to be wrong”: Re Décor Corporation Pty Ltd and Rian Tooling Industries Pty Ltd v Dart Industries Inc (1991) 33 FCR 397; [1991] FCA 844 at 398 (Sheppard, Burchett and Heerey JJ); Advanced Holdings Pty Ltd v Commissioner of Taxation (2020) 281 FCR 149; [2020] FCAFC 157 at [35] (Steward J, with Allsop CJ and Bromwich J agreeing); Davidson v Official Receiver [2021] FCAFC 73 at [15] (Allsop CJ, Markovic and Anastassiou JJ). The two criteria are cumulative and both must ordinarily be made out: Rawson Finances Pty Ltd v Deputy Commissioner of Taxation [2010] FCAFC 139 at [4]-[5] (Ryan, Stone and Jagot JJ); Ah-Chee v Stuart [2019] FCAFC 165 at [12] (Reeves, Griffiths and Charlesworth JJ). They are also related and should not be divided into “separate compartments”: Ah-Chee at [12]; Cabcharge Australia Ltd v Australian Competition and Consumer Commission [2010] FCAFC 111 at [20] (Kenny, Tracey and Middleton JJ).

14    While the two Décor criteria may not represent a “hard and fast rule” (Samsung Electronics Co. Ltd v Apple Inc. (2011) 217 FCR 238; [2011] FCAFC 156 at [29] (Dowsett, Foster and Yates JJ)), they nevertheless provide “general guidance which the Court should normally accept”: Rawson Finances Pty Ltd v Commissioner of Taxation [2016] FCAFC 95 at [39] (Robertson, Moshinsky and Bromwich JJ).

15    In relation to the first of the two Décor criteria, an applicant for leave to appeal does not have to demonstrate that the proposed grounds of appeal are strongly arguable, or that the proposed appeal will or is likely to succeed. An applicant need only demonstrate that there is sufficient doubt about the correctness of the decision to warrant appellate reconsideration. Where, however, the decision of the primary judge is a discretionary decision, the applicant will generally need to demonstrate that the doubts as to the correctness of the decision involve errors or matters of principle of the kind described in House v The King (1936) 55 CLR 499; [1936] HCA 40 at 504-505 (Dixon, Evatt and McTiernan JJ). It will generally not be sufficient to merely demonstrate that the discretion could or even should have been exercised differently because, for example, the relevant considerations could or should have been weighed differently to the way they were weighed by the primary judge: Ah-Chee at [13]; Construction, Forestry, Mining and Energy Union v Australian Competition and Consumer Commission (2016) 242 FCR 153; [2016] FCAFC 97 at [16]-[17] (Dowsett, Tracey and Bromberg JJ).

16    As for the second of the Décor criteria, an applicant seeking leave to appeal an interlocutory decision is likely to suffer substantial injustice, supposing the decision to be wrong, if the decision has the practical effect of finally determining the rights of the parties, or determines “a substantive right”: Décor at 400. The existence of those circumstances will generally provide a prima facie case, or at least a strong ground, for the grant of leave to appeal: Ex parte Bucknell (1936) 56 CLR 221 at 225-226 (Latham CJ, Rich, Dixon, Evatt and McTiernan JJ); Construction, Forestry, Maritime, Mining and Energy Union v One Key Workforce Pty Ltd [2020] FCAFC 27 at [44] (McKerracher, Farrell and Markovic JJ); Hastwell v Kott Gunning [2021] FCAFC 70 at [26], citing Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564; [2000] FCA 1572 at [43] (French J, with whom Beaumont and Finkelstein JJ agreed); Aardwolf Industries LLC v Tayeh [2020] NSWCA 301 at [1] (Bell P), [54] (Macfarlan JA) and [87] (Leeming JA).

17    Different considerations generally apply, however, where the decision in question is a discretionary decision relating to a matter of practice and procedure and no questions of general principle are at stake. In such cases, appellate intervention requires the “exercise of particular caution”: Hogan v Australian Crime Commission (2010) 240 CLR 651; [2010] HCA 21 at [34] (French CJ, Gummow, Hayne, Heydon and Kiefel JJ). In Adam P Brown Male Fashions Pty Ltd v Phillip Morris Incorporated (1981) 148 CLR 170 at 177, Gibbs CJ, Aikin, Wilson and Brennan JJ approved the following “oft-cited” statement of Sir Frederick Jordan in In re the Will of F. B. Gilbert (dec.) (1946) 46 SR (NSW) 318 at 323:

… there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal.

18    It is convenient to first address whether it can be said that Mr Roberts-Smith would suffer substantial injustice supposing that the judgment of the primary judge was wrong.

NO SUBSTANTIAL INJUSTICE

19    There is no basis upon which it could be considered that Mr Roberts-Smith would suffer substantial injustice if the primary judge erred in dismissing either his application that Ms Roberts be examined or his joinder application. Mr Roberts-Smith’s submission to the contrary must be rejected.

20    Both decisions were interlocutory discretionary decisions concerning quintessential matters of practice and procedure. Neither decision could be said to have determined a “substantive right”. Nor could it be said that either decision had the practical effect of finally determining the rights of the parties.

21    Mr Roberts-Smith had no “substantive right” to examine Ms Roberts about her compliance with the June interlocutory orders. The most that could be said is that the primary judge had a discretion to permit such an examination if the circumstances warranted or justified such a course. The primary judge was not taken to any authority which supported the contention that Mr Roberts-Smith had a substantive right to examine Ms Roberts in the circumstances. Nor was any authority to that effect identified in support of the leave application.

22    The only relevant authority that was identified in relation to the application to examine Ms Roberts was the judgment of Beaumont J in Trade Practices Commission v Arnotts Limited (No 2) (1989) 21 FCR 306. That judgment concerned the procedure which might be followed when a subpoena is called on and the party calling on the subpoena wishes to cross-examine the person answering the call about their possession of documents caught by the subpoena but not produced. After considering a number of authorities, Beaumont J ultimately concluded (at 314) that “an issue having arisen as to the existence of any of these documents, it becomes a matter for the exercise of a judicial discretion as to the appropriate method to be adopted for the determination of this adjectival question” (emphasis added). Beaumont J considered that the appropriate direction, given the circumstances of the case, was to permit the person who answered the subpoena to be examined about the existence of the documents sought, though his Honour noted (at 315) that the examining party “may not be able to pursue its inquiries exhaustively”. His Honour also held that none of the evidence given during the examination would be admissible in the substantive proceeding, or in any subsequent proceeding in which it was alleged that the subpoena had not been complied with.

23    As can readily be seen, Arnotts is not authority for the proposition that Mr Roberts-Smith had a substantive right to examine Ms Roberts about her compliance with the June interlocutory orders. Mr Roberts-Smith could, in the circumstances, seek to persuade the primary judge to exercise a “judicial discretion” to permit him to examine Ms Roberts concerning her compliance with the June interlocutory orders. He did not, however, have a substantive right to examine Ms Roberts. The primary judge’s decision not to exercise the discretion in Mr Roberts-Smith’s favour accordingly did not constitute a determination of any substantive right. It was no more than a discretionary decision in respect of a matter of practice and procedure.

24    The primary judge’s decision not to permit the proposed examination also did not have the practical effect of finally determining the rights of the parties. Because that decision was an interlocutory decision, it is by its very nature not final: Windsor v Sydney Medical Service Co-operative Ltd (No. 2) [2009] FCA 704 at [25] (Edmonds J). The Court retains a discretion to set aside, vary or discharge an interlocutory order up to the time of the final disposition of the proceedings: Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 at 46 (McLelland J).

25    There has been no final disposition of the proceedings. It therefore remains open to Mr Roberts-Smith to revisit the issue concerning Ms Roberts’s compliance with the June interlocutory orders and seek again to persuade his Honour to permit him to examine her. That may not be a particularly fruitful exercise unless Mr Roberts-Smith is able to demonstrate that the facts or circumstances have materially changed. That is, however, beside the point. The point is that the primary judge’s decision to refuse to exercise the discretion to permit the examination of Ms Roberts did not have the practical effect of finally determining the rights of the parties in respect of that issue.

26    The interlocutory decision in question in this matter is plainly distinguishable from, for example, summary judgment or a decision which otherwise results in the summary dismissal of an application. Such a decision, while interlocutory in nature, has the practical effect of ending the proceeding. That is not the case here.

27    It should also be noted, in this context, that after the primary judge handed down his decision, Ms Roberts, as had been anticipated, gave evidence in the defamation proceedings. It is common ground that Mr Roberts-Smith, through his counsel, cross-examined Ms Roberts. It is also common ground that the cross-examination, which proceeded over approximately two days, touched on Ms Roberts’s access to Mr Roberts-Smith’s email account and the allegation that she had communicated information obtained from that access to other persons. If Ms Roberts’s evidence during cross-examination in the defamation proceedings revealed anything further about her communication to others of confidential information obtained from Mr Roberts-Smith’s email account, that evidence could potentially provide the basis for a further application before the primary judge for leave to examine Ms Roberts about her compliance with the June interlocutory orders. That underlines the point that no substantial injustice would result if leave to appeal was refused, even supposing the primary judge to have been wrong in refusing to permit Ms Roberts to be examined in the first instance.

28    Mr Roberts-Smith submitted that he had a substantive right to protect his confidential information. So much so may be accepted. But that substantive right did not necessarily extend to a right to examine Ms Roberts about her compliance with the June interlocutory orders. The primary judge’s decision to refuse to exercise his discretion to permit Mr Roberts-Smith to examine Ms Roberts also did not determine, let alone finally determine, Mr Roberts-Smith’s right to protect his confidential information. The decision involved no more than an exercise of discretion on a point of practice and procedure in the substantive proceeding.

29    Mr Roberts-Smith also argued that the interlocutory orders under consideration were likely to have a significant impact upon the scope and outcome of the proceedings: cf Johnson Tiles at [43]. As was noted earlier, the final relief sought by Mr Roberts-Smith in the substantive proceeding is an order restraining Ms Roberts from using or disseminating any information she had obtained from Mr Roberts-Smith’s email account. It would appear that Ms Roberts will not oppose a final injunction being granted in the terms sought by Mr Roberts-Smith. She said as much in one of her affidavits. It is in those circumstances difficult to see how it could be said that the primary judge’s refusal to make an order permitting Ms Roberts to be examined could have any impact at all on the scope and outcome of the proceedings. It appears likely, if not inevitable, that Mr Roberts-Smith will obtain the final relief that he seeks in any event.

30    The primary judge’s decision to refuse Mr Roberts-Smith’s interlocutory application to join Ms Scott and Mr Pill to the proceeding also did not involve the determination of any substantive right, or have the practical effect of finally determining the rights of the parties. Mr Roberts-Smith had no substantive right to join Ms Scott and Mr Pill. He had no more than a procedural right to seek to have the primary judge exercise a discretionary power to join Ms Scott and Mr Pill as additional respondents to his proceeding. Nor could it be said that the primary judge’s decision to refuse the joinder application had the practical effect of finally determining any right or rights that Mr Roberts-Smith may have had in respect of the allegations concerning Ms Scott and Mr Pill. The primary judge’s dismissal of the joinder application involved no more than an exercise of a discretion in respect of a matter of practice and procedure. As the decision was interlocutory in nature, it would again be open to Mr Roberts-Smith to re-agitate the issue of joinder at some later stage of the proceeding, particularly if the circumstances change in any material way.

31    The absence of any substantial injustice flowing from the dismissal of the joinder application, supposing it was wrong, is also demonstrated by the fact that it would, in any event, be open to Mr Roberts-Smith to commence separate proceedings against Ms Scott and Mr Pill if he maintains that he has a reasonably arguable case against them. It is difficult to see how the fact that Mr Roberts-Smith might, as a result of the dismissal of the joinder application, have to commence separate proceedings against Ms Scott and Mr Pill rather than pursue them in the existing proceedings against Ms Roberts, could possibly be said to amount to a substantial injustice. It is true that the multiplicity of proceedings that would result from separate proceedings against Ms Scott and Mr Pill might be said to be inefficient and not entirely in keeping with the overarching purpose identified in s 37M of the FCA Act. That is, however, a far cry from a substantial injustice.

32    Mr Roberts-Smith drew attention to the fact that the primary judge observed that if separate proceedings were commenced against Ms Scott and Mr Pill, “there may be live questions as to the propriety of that taking place”: Judgment at [146]. That obiter observation, which appeared to be based on the fact that his Honour was not satisfied that Mr Roberts-Smith had established an even faintly arguable case against Ms Scott and Mr Pill in the context of the joinder application, did not finally determine any right that Mr Roberts-Smith had to commence proceedings against Ms Scott or Mr Pill. Nor does it have that practical effect.

33    It follows that Mr Roberts-Smith’s leave to appeal application does not meet the second of the two Décor criteria. That alone would be a sufficient basis upon which to dismiss the application. It is nevertheless appropriate to briefly address whether the application meets the first of the two Décor criteria: that the judgment is attended with sufficient doubt to warrant consideration by the Full Court.

THE DECISION IS NOT ATTENDED WITH SUFFICIENT DOUBT

34    Mr Roberts-Smith’s draft notice of appeal contains six grounds, though his submissions tended to focus mainly on the first and second grounds, which were said to be his “two primary grounds”.

35    Ground 1 of the draft notice of appeal challenges the primary judge’s finding that there was no sufficient reason to doubt Ms Roberts’s compliance with the June interlocutory orders and that Mr Roberts-Smith had therefore not established a sufficient basis to justify the examination of Ms Roberts.

36    As has already been noted, the primary judge found, on the basis of the affidavit evidence, that the “litany of complaints” that Mr Roberts-Smith had advanced did not reveal a “real basis to be concerned that Ms Roberts has concealed the true position”: Judgment at [141]. In short, his Honour accepted Ms Roberts’s affidavit evidence, including her evidence explaining the errors or omissions in the affidavit she had filed in accordance with the June interlocutory orders.

37    Mr Roberts-Smith’s submissions in support of this ground amounted to little more than complaints that the primary judge gave insufficient weight to some of the evidence adduced by him and assertions that some of the primary judge’s factual findings were wrong. While some of Mr Roberts-Smith’s submissions were couched in terms which suggested that the primary judge had ignored or failed to consider certain evidence, a fair reading of his Honour’s judgment reveals that he carefully considered and weighed up all the evidence. Mr Roberts- Smith’s real complaint appears to be that the primary judge did not weigh up the evidence in a way which favoured him. It is, in those circumstances, at best doubtful that Mr Roberts-Smith’s arguments about the primary judge’s factual findings are capable of amounting to an error of principle of the sort referred to in House.

38    I am, in any event, unpersuaded that the primary judge’s factual findings concerning Ms Roberts’s compliance with the June interlocutory orders are attended with sufficient doubt to warrant consideration by the Full Court. It was open to the primary judge, having regard to the evidence as a whole, to find that there was insufficient reason to doubt Ms Roberts’s evidence concerning her compliance with the June interlocutory orders. Mr Roberts-Smith has failed to demonstrate any reasonably arguable basis to disturb that finding.

39    Much the same can be said concerning ground 2 of the draft notice of appeal. Ground 2 challenges the primary judge’s conclusion that Mr Roberts-Smith had not demonstrated that he had an arguable case against Ms Scott and Mr Pill for injunctive relief.

40    The primary judge accepted Ms Roberts’s evidence that she had not provided information to Ms Scott and Mr Pill which would have enabled them to access Mr Roberts-Smith’s email account. His Honour considered that the material relied on by Mr Roberts-Smith to prove to the contrary rose no higher than “bare possibilities and suspicions”, many of which had been shown to be “ill-founded”: Judgment at [147]. There was, in those circumstances, no reasonably arguable basis for Mr Roberts-Smith’s claim that Ms Scott and Mr Pill possessed any of his confidential information and therefore no reasonably arguable basis for the relief which Mr Roberts-Smith proposed to seek against Ms Scott and Mr Pill.

41    Mr Roberts-Smith’s submission in support of ground 2 again rose no higher than assertions that the primary judge’s factual findings relevant to his claim that Ms Scott and Mr Pill had accessed his email account were wrong. It may again be doubted that the asserted errors are capable of amounting to House-type errors, but, even if they were, I am unpersuaded that there is sufficient doubt about the relevant factual findings to warrant reconsideration by the Full Court.

42    Grounds 3 and 4 of the draft notice of appeal assert that the primary judge took into account irrelevant considerations. Those irrelevant considerations are said to be: first, that Mr Roberts-Smith had sought to conduct a “wider-ranging inquiry” during his examination of Ms Roberts than the type of inquiry that Beaumont J had countenanced in Arnotts (ground 3); and second, that Mr Roberts-Smith had applied to examine Ms Scott and Mr Pill in circumstances where no such application had been made (ground 4).

43    I am not persuaded that there is sufficient merit in either of these grounds to warrant leave to appeal. Neither of the allegedly irrelevant considerations were material to the primary judge’s ultimate finding that Mr Roberts-Smith had not demonstrated that there was a proper basis for the interlocutory orders sought by him.

44    As has already been noted, the primary judge found that he accepted Ms Roberts’s evidence concerning her compliance with the June interlocutory orders. There was therefore no basis for the making of an order that Mr Roberts-Smith be permitted to examine her in relation to her compliance. His Honour’s reference to a “wider-ranging inquiry” related to the potential scope of the examination or, more particularly, how the evidence given by Ms Roberts during the examination could be deployed, if Mr Roberts-Smith had demonstrated that there was a proper basis to make an examination order. It played no part in his Honour’s finding that an examination order was not warranted.

45    The same can be said about the primary judge’s observation concerning the potential examination of Ms Scott and Mr Pill. It is true that Mr Roberts-Smith had not sought an order permitting the examination of Ms Scott and Mr Pill, though there appeared to be some indications that the joinder application was the first step in the possible pursuit of that outcome. Be that as it may, the primary judge’s suggestion that Mr Roberts-Smith had sought such an order played no part in his Honour’s finding that Mr Roberts-Smith had not demonstrated that there was a proper basis to join Ms Scott and Mr Pill. That finding was based on the primary judge’s acceptance of Ms Roberts’s evidence and his rejection of Mr Roberts-Smith’s claim that the evidence showed that Ms Roberts must have given Ms Scott and Mr Pill information that permitted them to access his email account.

46    Grounds 5 and 6 may be dealt with shortly. They allege that it was legally unreasonable for the primary judge to both refuse to make an order permitting the examination of Ms Roberts and to refuse to join Ms Scott and Mr Pill. Mr Roberts-Smith’s submissions barely touched on these proposed grounds of appeal. The claim of legal unreasonableness appeared to be based on the contention that the primary judge’s refusal to make either order was “so unreasonable that no reasonable authority could ever have come to it”: Minister for Immigration & Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [28] (French CJ), quoting Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 234 (Lord Greene MR). The arguments advanced by Mr Roberts-Smith in support of that contention, however, appeared to be the same arguments advanced in support of the other proposed grounds of appeal. Those grounds have little, if any, merit for the reasons already given. I do not consider it to be even faintly arguable that the primary judge’s dismissal of the further interlocutory applications was legally unreasonable.

47    I am not persuaded that any of the proposed grounds of appeal have sufficient merit to warrant the grant of leave to appeal. The decision of the primary judge is not attended with sufficient doubt to warrant reconsideration by the Full Court.

EXTENSION OF TIME

48    An issue arose as to whether Mr Roberts-Smith’s application for leave to appeal was filed within the time prescribed in r 35.13(a) of the Federal Court Rules 2011 (Cth). Mr Roberts-Smith asserted in his submissions that the application was lodged on the last day of the time period, but that the lodgement was via email, as opposed to electronic filing, because the Court’s “eLodgement Portal” was out of order that day. Despite the absence of any evidence in respect of this issue, it may be accepted that the leave application was effectively filed within time and that accordingly Mr Roberts-Smith was not required to apply for an extension of time. It would, in any event, plainly have been appropriate to grant an extension of time, if that was necessary, given that any delay arising from the late filing was satisfactorily explained and did not cause any prejudice to Ms Roberts.

conclusion

49    Mr Roberts-Smith has failed to demonstrate that the decision of the primary judge is attended with sufficient doubt to warrant it being reconsidered by the Full Court, or that substantial injustice would result if leave were refused, supposing the decision to be wrong.

50    This is a case where the words of Sir Frederick Jordan in Gilbert, referred to earlier, are particularly apposite. It is undoubtedly necessary to keep a “tight rein” upon interference with interlocutory decisions concerning practice and procedure of the sort in issue in this case. That is because the disposal of proceedings would otherwise be “delayed interminably, and costs heaped up indefinitely” as a result of the actions of a litigant with a “long purse or a litigious disposition” which would “in effect transfer all exercises of discretion in interlocutory applications” from the trial judge to the Full Court. Appellate intervention in such cases requires the exercise of particular caution.

51    The application for leave to appeal should be dismissed with costs.

Associate:

Dated:    16 May 2022