Federal Court of Australia

Drummond v Canberra Institute of Technology [2023] FCA 421

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application for leave to appeal filed on 20 October 2022 be dismissed.

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

REASONS FOR JUDGMENT

(Revised from transcript)

WIGNEY J:

1    In July 2015, almost eight years ago, the applicant in this matter, Dr Mark Drummond, commenced proceedings in the then Federal Circuit Court, now the Federal Circuit and Family Court of Australia, against his erstwhile employer, the Canberra Institute of Technology (CIT). In that proceeding, which will be referred to as the primary proceeding, Dr Drummond alleged that CIT had contravened various provisions of the Fair Work Act 2009 (Cth). It would perhaps be an understatement to say that the progress of the primary proceeding in the Circuit Court was torturous and unfortunate in many respects. In the application currently before the Court, Dr Drummond seeks leave to appeal a judgment and orders made by the primary judge, the effect of which was to summarily dismiss the primary proceeding. The primary judge summarily dismissed the proceeding essentially because Dr Drummond failed to appear at the final hearing of the matter, which had already been adjourned on more than one occasion.

2    The central question for determination by the Court is whether Dr Drummond has established that the judgment and orders of the primary judge are attended by sufficient doubt to warrant reconsideration by the Full Court. In other words; has Dr Drummond established a reasonably arguable case of appellable error by the primary judge?

3    For the reasons that follow, I am not persuaded that the judgment and orders of the primary judge are attended by sufficient doubt to warrant the grant of leave to appeal. Dr Drummond’s application for leave to appeal must accordingly be dismissed.

History of the litigation

4    The primary judge’s decision and Dr Drummond’s arguments concerning it must be considered in the context of the long history of the litigation to date. That history has been considered in at least three judgments of the Full Court, they being Drummond v Canberra Institute of Technology (2020) 278 FCR 436; [2020] FCAFC 131 (Drummond FCAFC (No 1)); Drummond v Canberra Institute of Technology (No 2) [2022] FCAFC 162 (Drummond FCAFC (No 2)); and Drummond v Canberra Institute of Technology (No 3) [2022] FCAFC 169 (Drummond FCAFC (No 3)). These reasons should be read and considered together with those Full Court judgments.

5    As has already been noted, the primary proceeding was commenced as long ago as July 2015. The relief sought by Dr Drummond in the primary proceeding arose under the Fair Work Act and related to the cessation of his employment with CIT. Dr Drummond alleged that CIT had taken adverse action against him and had contravened various provisions of the Fair Work Act.

6    In August 2015 the matter was referred to mediation. It is readily apparent that the mediation was unsuccessful.

7    There were a number of procedural skirmishes between the parties during 2016 and 2017, including interlocutory disputes concerning the need for an amended application and pleadings, the provision of particulars, the striking out of Dr Drummond’s pleadings and the summary dismissal of the proceeding. The four day trial of Dr Drummond’s application was eventually listed to commence from 28 November 2017. Needless to say, the trial did not commence on that date.

8    Shortly before the hearing was due to commence, Dr Drummond contacted CIT and the court and requested an adjournment. It is unnecessary for present purposes to detail Dr Drummond’s reasons for seeking an adjournment. It suffices to say that his adjournment application achieved a measure of success, though that success came at some cost to Dr Drummond. The primary judge vacated the hearing, dismissed all outstanding interlocutory applications and effectively dismissed the substantive application, though Dr Drummond was given leave to reinstate or reopen the proceeding within six months if he met certain conditions. In general terms, those conditions required Dr Drummond to file medical evidence which addressed his ability and capacity to conduct the litigation.

9    In May 2018, Dr Drummond filed an application seeking to reopen the hearing. He provided medical reports in support of his application, including a letter from his general practitioner, Dr Helen Wessell. As will be seen, reports or letters from Dr Wessell also featured prominently in later events.

10    Dr Drummond’s application to reopen the hearing was heard on 14 March 2019. Dr Drummond was represented by counsel at that hearing. As will be seen, Dr Drummond’s counsel, Mr Anton Duc, also featured in the events that followed.

11    On 20 September 2019, the primary judge dismissed, “on a final basis”, all extant applications, including Dr Drummond’s application for leave to reopen the proceeding: Drummond v Canberra Institute of Technology [2019] FCCA 2612 (Drummond FCCA (No 1)). The primary judge concluded that the medical evidence filed on behalf of Dr Drummond did not provide him with any confidence that Dr Drummond had the capacity to present his case at trial: Drummond FCCA (No 1) at [64] and [69].

12    Dr Drummond subsequently sought leave to appeal those orders. Both his application for leave to appeal and the resulting appeal were successful: Drummond FCAFC (No 1). It would seem that CIT did not oppose the grant of leave or the appeal on the basis that the primary judge had given no consideration to the potential appointment of a litigation guardian. As will be seen, the appointment of a litigation guardian became an issue in the subsequent conduct of the litigation.

13    Following Dr Drummond’s successful appeal, the matter came back before the primary judge in November 2020. Perhaps not surprisingly in the circumstances, the primary judge raised with the parties whether it would be appropriate to appoint a litigation guardian. It seems, however, that his Honour did not take that issue any further because Mr Duc had provided an assurance that he would continue to act for Dr Drummond. In the end, the primary judge made timetabling orders for the progression of the matter to a final hearing. The matter did not, however, progress. The timetabling orders were not complied with. That appears to have prompted the primary judge to reconsider whether a litigation guardian should be appointed.

14    In March 2021, the primary judge conducted a hearing in order to determine, among other things, whether a litigation guardian should be appointed. The primary judge declined to appoint a litigation guardian at that point in time, listed the matter for a four day hearing commencing on 3 August 2021, and made a number of procedural orders for the progress of the matter to a final hearing: see Drummond v Canberra Institute of Technology (No 2) [2021] FCCA 556. It appears that the primary judge was once again placated by assurances that Mr Duc would continue to represent Dr Drummond.

15    In due course, Dr Drummond filed an application for an extension of time and leave to appeal that judgment. As a result of that application, the primary judge vacated the hearing that was listed to commence on 3 August 2021. On 30 July 2021, however, Dr Drummond’s application for an extension of time and leave to appeal was dismissed by consent.

16    On 15 December 2021, the primary judge ordered that the matter be listed for a four day final hearing commencing on 26 July 2022. It seemed that there were further discussions concerning the appointment of a litigation guardian, however no such guardian was appointed.

17    The matter eventually came on for final hearing on 26 July 2022. Dr Drummond was represented by Mr Duc. Dr Drummond gave evidence-in-chief and was cross-examined for most of the first day of the hearing and much of the second day. Dr Drummond then closed his case.

18    So far so good.

19    Early in the morning of the third day of the hearing, however, Dr Drummond informed the court by email that he was in a “state of complete exhaustion and burnout” and was “unable to continue … or participate in the matter to instruct Mr Duc or otherwise”. He suggested, however, that he would be “fine” for a continuation of the hearing in October 2022.

20    Mr Duc appeared for Dr Drummond when the matter came before the court on the third day of the trial, 28 July 2022. Perhaps not surprisingly, however, Mr Duc indicated that he was unable to proceed with the hearing in the absence of Dr Drummond. He pressed for an adjournment on that basis. In the course of Mr Duc’s submissions, the potential appointment of a litigation guardian was again raised, this time by counsel for CIT. Mr Duc obtained instructions from Dr Drummond in respect of that issue and indicated that his client opposed the appointment of a litigation guardian.

21    It would seem that the hearing of the substantive application did not proceed on 28 July 2022, but some argument proceeded in respect of whether a litigation guardian should be appointed. On 4 August 2022, the primary judge ordered the appointment of a litigation guardian: Cockburn v Canberra Institute of Technology [2022] FedCFamC2G 646. The primary judge listed Dr Drummond’s substantive for a further two day final hearing commencing on 6 October 2022.

22    It is also worth noting, in the context of the application to appoint a litigation guardian, that Dr Drummond provided the court with a further report from Dr Wessell. That report indicated that Dr Drummond was unfit to continue participating in the hearing on 28 and 29 July 2022 “due to exhaustion”. The letter from Dr Wessell also suggested that Dr Drummond would “benefit from a couple of weeks mental rest and recuperation” and expressed the view that Dr Drummond would be able to continue the hearing to its conclusion after that rest and recuperation.

23    On 18 August 2022, Dr Drummond sought leave to appeal from the orders made by the primary judge on 4 August 2022. Two further interlocutory applications were filed in the context of Dr Drummond’s application for leave to appeal.

24    The first was an application by CIT to expedite the hearing of the leave application. The basis of that application was to ensure that the hearing, which was listed to commence on 6 October 2022, could proceed. That expedition application was heard and determined on 1 September 2022. The court ordered that the application for leave and the appeal (if leave was granted) would be heard at an expedited hearing, which was, in due course, listed to commence on 23 September 2022: see Drummond v Canberra Institute of Technology [2022] FCA 1030.

25    About 10 days before the hearing of the application for leave to appeal, Dr Drummond applied for an adjournment of that application for medical reasons. The Full Court convened and heard Dr Drummond’s adjournment application at short notice on 16 September 2022. After hearing evidence from Dr Drummond and Dr Wessell, the adjournment application was dismissed: Drummond FCAFC (No 2). Dr Drummond’s application for leave to appeal accordingly proceeded to hearing.

26    Dr Drummond’s application for leave to appeal was successful and his appeal was heard on 23 September 2022. While Dr Drummond’s grounds of appeal were lengthy, the Full Court was able to discern two “themes of relevance”. Those themes were, in summary: first, an allegation by Dr Drummond of apprehended or actual bias on the part of the primary judge; and second, an alleged error, on the part of the primary judge, in appointing a litigation guardian in circumstances where there was no proper basis to do so.

27    As for the first of those themes, the Full Court held that there was no basis for Dr Drummond’s allegations of actual or apprehended bias on the part of the primary judge and no grounds for the primary judge to recuse himself: Drummond FCAFC (No 3) at [68] – [93]. The Full Court concluded, however, that the primary judge erred in appointing a litigation guardian. Dr Drummond’s appeal was upheld on that basis. It is important to emphasise that the error identified by the Full Court hinged on the finding that the primary judge failed to have regard to the fact that Dr Drummond was represented by Mr Duc for the purposes of the trial. The Full Court considered that to be a highly relevant consideration: Drummond FCAFC (No 3) at [106] – [108].

28    Following the disposal of Dr Drummond’s appeal, the principal proceeding remained listed for further hearing on 6 and 7 October 2022.

Events immediately preceding the hearing on 6 October 2022

29    It is regrettably necessary to recite, in some detail, the events which immediately preceded the hearing on 6 October 2022. The following chronology has been pieced together from the rather haphazard and unsatisfactory court book prepared by the parties. It is not intended to be a complete recitation of the facts. Rather, it addresses only those facts that are of present relevance.

30    On 2 October 2022, Dr Drummond emailed the primary judge’s associate and CIT’s solicitor. In that email, Dr Drummond asserted that he was in a “very depressed and distressed state” with respect to the “court matters”, and was “concerned” that he was “not able to be able to return to [his] workplace … due to the state of depression, distress, debilitation, malaise, cognitive dissonance, etc … and burnout and exhaustion”. He said that, in those circumstances, he would “not possibly be able to either attend the hearing on 6-7 October, nor do the significant amount of document bundling for cross-examination purposes”. He added that he “simply hadn’t a chance to properly complete preparation of the document bundles”. Finally, he advised that he did not “wish for Mr Duc to be present on 6-7 October without me being there”.

31    At 11.23pm on 3 October 2022, Dr Drummond sent another email to the primary judge’s associate and CIT’s legal representative. Attached to that email were what was said to be three “medical statements” from Dr Wessell. Those so-called medical statements were in fact letters or reports from Dr Wessell that Dr Drummond had proffered in support of prior requests or applications. Dr Drummond noted in the email that he had another consultation with Dr Wessell scheduled for 7 October 2022 at 11.00am. He said that he was hoping to use the rest of the school holidays to “rest, recover, recharge etc” sufficiently to resume his work as a teacher. Perhaps more significantly, he said that he believed that he would be able to resume work on “court processes” from around 17 October 2022 and that by the end of October he could have the witness cross-examination bundle preparation work ready to pass to Mr Duc.

32    On 4 October 2022 at 1.14pm, CIT’s solicitor sent an email to the primary judge’s associate, copied to Dr Drummond and others, and advised that CIT had instructed him to oppose any adjournment application. The email also noted that CIT was ready to resume the trial with a schedule of witnesses on the morning of 6 October 2022. The email also made it clear that, if Dr Drummond wanted to rely on the opinion of Dr Wessell in support of any adjournment application, CIT required that Dr Wessell be made available for cross-examination.

33    At 5.09pm on 4 October 2022, Dr Drummond sent an email to the primary judge’s associate and CIT’s legal advisors in reply to CIT’s solicitor’s email. That email foreshadowed further correspondence in relation to a “possible consent position” in respect of CIT’s opposition to the adjournment application. As will be seen, Dr Drummond’s apparent optimism in respect of a consent position was unwarranted. No consent position was forthcoming. The email also suggested that Dr Drummond was prepared to cooperate and make Dr Wessell available for cross-examination at a “suitable later time”, the indication being that Dr Wessell would not be made available for cross-examination on 6 October 2022.

34    At 5.10pm on 4 October 2022, the primary judge’s associate sent an email to CIT’s solicitor and Dr Drummond. That email confirmed that the hearing would proceed as scheduled. The email noted that it was:

…impossible to contend that there has not been more than ample opportunity since 2017 for Dr Drummond to prepare for cross-examination of the respondent’s witnesses.

35    The email also noted that a trial plan for the remaining two days of the trial had been ordered to be provided by midday that day. That trial plan apparently had not been provided.

36    Later the same evening, Dr Drummond sent an email to CIT’s solicitor. That email, in summary, sought to encourage CIT to consent to Dr Drummond’s adjournment application. CIT’s solicitor did not immediately or directly respond to that email, which is unsurprising given the time it was sent and the position that CIT had previously taken to the adjournment application.

37    At 11.42pm on 5 October 2022, being late in the evening prior to the date that the trial was to resume, Dr Drummond sent an email to the primary judge’s associate and CIT’s solicitors. That email mostly referred to some of the previous correspondence or the assertions made therein. Relevantly, however, it included the following statement:

I wish things were different such that I could feel able to partake with Mr Duc tomorrow, but recent court events have taken far too much of a toll on me to allow me to even make it in tomorrow or allow me the time to finalise putting together of the respondent witness cross-examination bundles which only I can put together as the holder of all the documents on my side.

38    At 9.17am on 6 October 2022, that being the day that the hearing was to proceed, the primary judge’s associate sent an email to Dr Drummond and CIT’s solicitor. That email noted that the court’s registry had forwarded to the associate the correspondence from the previous evening and that the associate had discussed that correspondence with the primary judge. The email stated that the hearing would proceed at 10.15am that day “irrespective of whether the applicant himself attends”. It also noted that:

If it turns out to be the case that Mr Duc does not attend he will be called by the court to enable the cross-examination of the respondent’s witnesses to continue.

39    The email continued as follows:

The court looks forward to the evidence finalising across the next few days. To state the obvious, it would be deeply regrettable if the matter was effectively (or potentially) to conclude in any way because of non-attendance, including proceedings on an undefended basis, noting again that the dates allocated today and tomorrow were the dates specifically sought by the applicant on the last occasion for the matter to continue.

The hearing on 6 October 2022

40    The matter came on for hearing before the primary judge at 10.15am on 6 October 2022. When the matter was called for hearing there was no appearance by Dr Drummond, or Mr Duc on Dr Drummond’s behalf. CIT was represented by counsel and an instructing solicitor. In light of the non-appearance by both Mr Duc and Dr Drummond, the primary judge requested CIT’s solicitor to endeavour to contact Dr Drummond.

41    It would appear that some attempt was made to contact Dr Drummond by mobile telephone, though if such an attempt was made, it was apparently unsuccessful. Dr Drummond maintained that he received no telephone call.

42    Consistent with what was said in the email sent to the parties by the primary judge’s associate earlier that morning, the primary judge also arranged to have Mr Duc contacted by telephone. It would appear that telephone contact was made in open court and was recorded in the transcript. In the course of the conversation between the primary judge and Mr Duc, Mr Duc revealed that his instructions or brief had been terminated about one week prior to the hearing. It would seem that this came as a complete surprise to the primary judge.

43    Following the conversation between the primary judge and Mr Duc, the matter was stood down until 2.00 pm.

44    CIT’s solicitor sent an email to Dr Drummond at 11.46am. That email stated as follows:

An application for dismissal (without conditions) has been made by the respondents this morning. His Honour stood the matter down until 2.00pm with a view that you may be able to attend. Could you please indicate by return email to me if you wish to attend? In the alternative, you could just attend court at 2.00pm.

45    CIT’s solicitor received no response to that email, at least until much later in the day. That response will be referred to shortly.

46    At 2.00pm on 6 October 2022 the primary judge proceeded to make orders and deliver an ex tempore judgment: Cockburn v Canberra Institute of Technology (No 2) [2022] FedCFFamC2G 866 (Judgment).

47    The primary judge’s orders and reasons will be addressed shortly. It is important to note, however, that it was not until 4.09pm on 6 October 2022 that Dr Drummond responded to the email from CIT’s solicitor which had been sent at 11.46am. In his email, which was copied to the court’s registry, Dr Drummond referred to his “GP appointment” which had been significantly delayed. The email also attached a letter from Dr Wessell. That letter was apparently the product of consultation with Dr Wessell that day. It is important to emphasise that it is clear that Dr Drummond’s email and the attached report from Dr Wessell were not before the primary judge at the time his Honour made orders and gave the ex tempore reasons in court shortly after 2.00pm that day.

The orders and reasons of the primary judge

48    It is convenient to first address the orders made by the primary judge. Somewhat unusually, the orders are preceded by lengthy “notes” concerning the circumstances in which the orders were made. Those notes are set out in full.

THE COURT NOTES THAT:

A.    So far, there have been four attempts to conduct or to conclude a final hearing in this matter, in November 2017, August 2021, July 2022, and October 2022. On three of these occasions, in November 2017, July and October 2022, the trial either could not proceed, or conclude, due to the Applicant’s psychological/emotional well-being, despite assurances from the Applicant and/or his GP that he was, or would be, able to proceed with the hearing;

B.     This matter has been the subject of multiple appeals to the Federal Court of Australia. The most recent appeal was partially allowed in respect of a litigation guardian Order, on the basis that the Applicant has, and otherwise indicated would continue to have, Counsel representing him. In these circumstances, the Full Court held that there was an extremely limited role remaining for the Applicant to finalise these proceedings, especially on the basis that Counsel’s preparation for the final cross examination should already have been done, especially since the Respondent’s Affidavits were filed in 2017;

C.     As matters have recently turned out, and only advised to the Court by the Applicant’s Counsel during a telephone call from the Court on the morning of the resumed hearing on 6th October 2022, Counsel confirmed that he was no longer briefed by the Applicant, as of approximately 7 days ago. Counsel confirmed that he would no longer have anything to do with, or otherwise be involved in, the matter;

D.     In the week leading up to today, Chambers received a significant number of essay length emails from the Applicant, contrary to previous Orders and the Full Court’s comments of the inappropriate nature of this conduct, complaining again about his state of burnout and notifying the Court that he was not going to attend Court and instead would be attending upon his GP at the time of the hearing;

E.     In the emails from the Applicant referred to, which were copied to Mr Duc, as recently as 5th October 2022, he made regular comments regarding Mr Duc’s ongoing involvement in the matter, thereby arguably misleading the Court regarding his representation and the future conduct of the proceeding. It only needs to be observed the obvious inconsistency between Counsel’s confirmation in open Court that he was no longer briefed in the matter, and the Applicant’s repeated representation that he and Mr Duc would be preparing the matter for the adjourned future hearing;

F.     At the hearing today, the matter was stood down until 2pm. At the Court’s request, the Respondent’s solicitor emailed the Applicant to advise him of the Applications before the Court regarding (a) an adjournment, (b) dismissal for default under Part 13.2 of the Court’s Rules, and (c) the alternative course of the matter to conclude on the basis of the evidence having concluded, and that written submissions would be provided, which would be predicated upon matters being confined strictly to issues under the Fair Work Act 2009 (Cth) and the Collective Agreement. Within 7 days of the date of these Orders, the Court will identify the issues to be determined based upon the confinement of issues taken from the previously filed State of Agreed Facts and List of Issues; and

G.     Upon the resumption of the matter at 2pm, there was still no attendance by the Applicant or his Counsel. The Respondent foreshadowed that if the matter is dismissed on the basis of default, a costs application would be made. The Court delivered brief oral reasons (which would be revised and published), which led to the following Orders …

49    The orders made by the primary judge were as follows.

UNTIL FURTHER ORDER, THE COURT ORDERS THAT:

1.     The Applicant’s informal Application by email for an adjournment of the hearing listed on 6th and 7th October 2022 be rejected and dismissed.

2.     Because of the ongoing default of the Applicant, and that he chose not to attend today or continue the cross-examination of the Respondent’s witnesses, the proceedings be dismissed pursuant to Rule 13.06(1)(c), 13.04(1)(a)(b)(e), and 13.05(1), of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

3.     Order 2 be stayed pending compliance with Order 4.

4.     Within 28 days from the date of these Orders, being by 4:00pm on 27th October 3rd November 2022, the Applicant is to file and serve written submissions of no more than 15 pages in length. On the basis of Order 6 of the Orders dated 4th August 2022, which was not disturbed on appeal, these submissions are to be confined only to issues arising directly under the Fair Work Act 2009 (Cth) and/or the Collective Agreement.

5.     Defaults:

(a)     in the event that the Applicant does not file his submissions within the time prescribed, subject to submissions explaining why, the stay at Order 3 will be lifted and the proceedings may be dismissed in accordance with Order 2;

(b)     in the event that the Applicant files submissions within the prescribed time but they exceed the prescribed page limit, the Court will only have regard to the first 15 pages.

6.     Within 21 days thereafter, being by 4:00pm on 17 24th November 2022, the Respondent is to file and serve written submissions of no more than 15 pages in length, also limited to the outstanding issues arising under the Fair Work Act 2009 (Cth) and the Collective Agreement.

50    The primary judge’s reasons for making those orders may be summarised as follows.

51    First, the primary judge referred to s 190 of the Federal Circuit and Family Court Act 2021 (Cth) (FCFCOA Act). That provision outlines the “overarching purpose of the civil practice and procedure provisions”. The overarching purpose includes facilitating the resolution of disputes “as quickly, inexpensively and efficiently as possible”, “the efficient use of the judicial and administrative resources available for the purposes of the court” and “the disposal of all proceedings in a timely manner”. Having noted the content of s 190 of the FCFCOA Act, the primary judge stated (Judgment at [9]):

Simply as a statement of fact, in light of the matter having been on foot for seven years and continuing and the number of attempts to conduct or to conclude a final hearing, it is difficult to say that there has been compliance with s 190 of the FCFCOA Act.

52    The primary judge also set out rules 13.04, 13.05 and 13.06 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), being rules which deal with what may be done where a party, in particular an applicant, is “in default”. Those rules make it clear that, in circumstances where an applicant does not appear at a hearing, the court has a discretion to dismiss the application.

53    The primary judge also referred to the recent Full Court decision in Drummond FCFCA (No 2). His Honour noted three particular aspects of that judgement.

54    First, his Honour noted that Mr Drummond had applied for an adjournment of the application for leave to appeal and that the adjournment application had been refused.

55    Second, his Honour noted that the Full Court had indicated, in the context of Dr Drummond’s adjournment application, that Dr Drummond’s medical certificate and evidence from Dr Wessell was “unpersuasive”.

56    Third, his Honour noted that, in allowing Dr Drummond’s appeal, the Full Court had given considerable significance to the fact that Dr Drummond was represented by Mr Duc in the primary proceeding. His Honour observed, in that context, that he had understood that Mr Duc was still briefed and would appear at the hearing and that he had retained that understanding until he was advised otherwise during the course of the telephone conversation with Mr Duc in court after his non-appearance on the third day of the hearing. His Honour indicated, perhaps not surprisingly in all the circumstances, that he was most unimpressed that the court had not been told that Mr Duc was no longer retained or would no longer appear at the hearing.

57    The primary judge referred to the past history of the proceedings and noted, among other things, that there had been many defaults by Dr Drummond during the course of the proceedings over many years. Those defaults had been documented in “multiple earlier judgments”: Judgment at [32]. His Honour also noted, in respect of Dr Drummond’s apparent contention that he was not in a position to finalise the cross-examination bundles or cross-examine CIT’s witnesses, that he had been served with CIT’s affidavits in 2017.

58    Having noted Dr Drummond’s defaults in the conduct of the proceedings, including his non-appearance on the third day of the hearing, the primary judge concluded as follows (Judgment at [35]):

As already noted, in my view, there are significant grounds upon which the matter can and should be dismissed because of the ongoing defaults of the Applicant and the extraordinary number of times he has been granted every concession and indulgence, very significantly more than most other litigants. His recent non-attendance at the adjourned final hearing, together with the termination of his Counsel’s retainer, are matters of extreme concern, particularly in the light of the his non-attendance in late July for the final two days of the hearing. The potential mis-leading of the Court, and the failure to notify the Court of the removal of instructions from Counsel are especially egregious.

59    While the primary judge considered that there was “ample evidence that would justify the immediate dismissal of the proceeding in its entirety” (Judgment at [36]), his Honour effectively gave Dr Drummond one more chance to conclude the hearing, albeit on a limited basis. As has been seen, while his Honour ordered that the proceeding be dismissed, the orders also provided that if Dr Drummond filed and served written submissions within 28 days of the orders, the order dismissing the proceeding would be stayed. It should be noted that while the orders permitted Dr Drummond to file written submissions, they made no provision for Dr Drummond to cross-examine CIT’s witnesses.

60    As events transpired, Dr Drummond did not file any submissions in compliance with the orders. The order staying the dismissal of the proceedings was therefore inoperative, with the result that the primary proceeding was dismissed. It would appear that Dr Drummond elected to proceed with this application for leave to appeal, as opposed to filing submissions in accordance with the orders made by the primary judge.

Relevant principles

61    It was ultimately common ground that Dr Drummond required leave to appeal because the orders which had the effect of dismissing the primary application were interlocutory in nature. CIT had previously erroneously submitted that the dismissal was final in nature and leave to appeal was therefore not required.

62    The principles that apply in considering an application for leave to appeal are settled and well-known. It suffices to note that, in the frequently cited and applied decision of the Full Court in Décor Corporations v Dart (1991) 33 FCR 397; [1991] FCA 844 (Décor v Dart) at 397, it was said that the principal criteria that must be addressed in considering any application for leave to appeal are: first, whether in all the circumstances, the decision or order of the primary judge is attend by sufficient doubt to warrant it being reconsidered by the appellate court; and second, whether substantial injustice would result if leave were refused, supposing that the decision made by the primary judge was wrong.

63    I should note at that this stage that I am persuaded that the second limb of the test in Décor v Dart has been satisfied in this matter. That is essentially because the effect of the orders made by the primary judge is that Dr Drummond’s primary proceeding has been dismissed. Unless reversed on appeal, the interlocutory dismissal of the primary proceeding is effectively final. I am on that basis satisfied that Dr Drummond would suffer substantial injustice if leave were refused and the primary judge’s decision was incorrect.

64    It follows that the principal question in respect of Dr Drummond’s leave application is whether, in all the circumstances, the primary judge’s orders and decision are attended by sufficient doubt to warrant reconsideration by the Full Court.

65    It is important to note that the decision and orders made by the primary judge were undoubtedly discretionary in nature. To demonstrate appellable error in respect of a discretionary decision, it is well settled that it is generally necessary to establish that the primary judge acted either upon a “wrong principle”, allowed “extraneous or irrelevant matters to guide or affect him”, had mistaken the facts, or failed to take into account some “material consideration”: House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505.

Proposed grounds of appeal and submissions

66    Dr Drummond’s draft grounds of appeals are lengthy, prolix and, in many respects, difficult to follow. There are 26 grounds of appeal, though many of those grounds contain multiple contentions. Dr Drummond has also filed equally lengthy, discursive and prolix written submissions in respect of his appeal grounds. Despite the length and complexity of Dr Drummond’s draft notice of appeal and submissions, it is possible to distil and group the proposed grounds of appeal into three broad contentions.

67    First, Dr Drummond contends that the primary judge failed to have regard to, or give sufficient regard or weight to, the letters or reports of Dr Wessell.

68    Second, Dr Drummond alleges that the primary judge was biased, or that there was at least an apprehension of bias. The allegation of bias, or apprehended bias, appeared to be based on the contention that the primary judge had prejudged his application and had ignored his medical evidence. Dr Drummond also made some rather sweeping allegations concerning the primary judge’s conduct of the proceedings generally.

69    Third, Dr Drummond contends that the decision to dismiss the primary proceeding was manifestly unjust or unfair in all the circumstances. That may perhaps accurately be characterised as a contention that the primary judge’s decision and reasons were legally unreasonable.

70    At the hearing of his leave application, Dr Drummond broadly agreed with that characterisation of his appeal grounds. Dr Drummond’s submissions, however, were primarily directed at the merits of his adjournment application and the contention that the primary judge should have allowed it. His submissions also tended to stray into the past history of the litigation.

71    It should perhaps be noted, in that context, that Dr Drummond’s written and oral submissions contained a litany of complaints concerning CIT’s conduct of the primary proceeding. He claims, among other things, that CIT had, for many years, defaulted and acted unfairly in the conduct of the litigation. He went so far as to allege that previous unspecified judgments of the court had been procured by the fraud of CIT, and perhaps their lawyers. Needless to say, CIT disputed Dr Drummond’s contentions in that regard.

72    I do not propose to deal at length with Dr Drummond’s complaints concerning CIT’s conduct of the litigation, many which relate to events that occurred many years ago and have been addressed in, or are the subject of, previous judgments of both this Court and the court below. Indeed, many of Dr Drummond’s arguments about the past history of the litigation had been put to the Full Court and rejected only weeks before the October 2022 hearing. More importantly, the allegations were mostly bare assertions which were entirely unsupported by evidence and otherwise unsubstantiated. They were also essentially irrelevant having regard to the grounds upon which Dr Drummond actually sought to appeal from the judgment and orders in question.

73    Dr Drummond’s submissions likewise included a litany of complaints concerning the conduct of the primary judge throughout the litigation. It is again unnecessary to detail those complaints. As with the complaints concerning CIT, Dr Drummond’s complaints concerning the primary judge’s conduct of the litigation amounted to little more than bare assertions, were unsupported by evidence and for the most part had been addressed in earlier judgments of both the court below and this Court. The complaints were also largely irrelevant to Dr Drummond’s proposed grounds of appeal, other than perhaps his allegation of apprehended bias.

74    Dr Drummond did not take the Court to any paragraph of the primary judge’s reasons which was said to demonstrate either apprehended bias or legal error.

The merits of the proposed appeal

75    I am not persuaded that any of Dr Drummond’s appeal grounds and submissions have any merit. I am not satisfied that the primary judge’s orders and reasons are attended by sufficient doubt such as to warrant the grant of leave to appeal and reconsideration by the Full Court. It is abundantly clear Dr Drummond strongly disagrees with the orders made by the primary judge and maintains that the primary judge should have granted him an adjournment. Strenuous disagreement, however, does not translate to appellable error.

76    It may be accepted that other judges faced with Dr Drummond’s adjournment application and non-appearance at the adjourned hearing may have acceded to Dr Drummond’s adjournment application and deferred the hearing yet again. Perhaps it could be said that reasonable minds might differ as to the appropriate stance to take in respect of Dr Drummond’s application. It does not, however, follow that the primary judge erred in taking a different view and making the orders his Honour did.

77    It was, in my view, plainly open to the primary judge, in all the circumstances, to refuse Dr Drummond’s adjournment application and make the orders his Honour made in respect of Dr Drummond’s non-appearance. I am unable to see any appellable error in his Honour’s reasons. I am also unable to see any basis whatsoever for Dr Drummond’s claims of bias or apprehended bias on the part of the primary judge.

78    There is no merit in Dr Drummond’s contention that the primary judge ignored or failed to have regard to the medical evidence, such as it was, which was said to support his adjournment application. As noted earlier, that medical evidence comprised letters or reports by Dr Wessell which Dr Drummond had proffered in support of prior applications. At least two of those letters or reports had been before the Full Court in the context of Dr Drummond’s most recent adjournment application. In any event, his Honour plainly had regard to the letters and reports of Dr Wessell that Dr Drummond had attached to his email correspondence in the days before the adjourned hearing. The primary judge had regard to that material, but found it to be unpersuasive, essentially for the same reasons that the Full Court had, only weeks before, found Dr Wessell’s evidence or medical opinions to be unpersuasive. At the very least, the view that the primary judge formed in relation to Dr Wessell’s reports was open to his Honour.

79    I have given close consideration to Dr Wessell’s letters and reports. Like the Full Court and the primary judge, I find them to be most unpersuasive. Some of them read more like a submission from a friend or advocate for Dr Drummond. They contain little more than broad and general assertions that Dr Drummond was burnt out or exhausted and needed to rest and recuperate. They hardly seem to be clinical or medical diagnoses or opinions. In any event, as I have said, the primary judge plainly had regard to the medical evidence, and certainly did not ignore it. The views that his Honour formed in relation to it were, at the very least, open to his Honour.

80    As for Dr Drummond’s allegations of apprehended bias, or actual bias, virtually identical contentions or allegations were made before the Full Court only weeks before the October 2022 hearing. The Full Court comprehensively dealt with those allegations and rejected them. It found that there was no basis for the claims made by Dr Drummond concerning the conduct of the primary judge: see Drummond FCAFC (No 3) at [90] – [91].

81    While Dr Drummond foreshadowed seeking special leave to appeal from the High Court in respect of the Full Court’s judgment, that application was never pursued. Dr Drummond failed to identify any other grounds to support his allegation of apprehended bias other than those that were comprehensively rejected by the Full Court. I am not persuaded that the mere fact that the primary judge refused Dr Drummond’s adjournment application and made the orders which ultimately led to the dismissal of the primary application is capable of supporting the allegation of apprehended bias, let alone the more serious allegation of actual bias. Nor am I persuaded that anything in the primary judge’s reasons is capable of supporting those serious allegations.

82    The balance of Dr Drummond’s arguments can conveniently be dealt with under the rubric of legal unreasonableness. I am not persuaded that Dr Drummond has an arguable case of legal unreasonableness.

83    The relevant principles in respect of legal unreasonableness are largely settled. I summarised the key principles in the following terms in BHL19 v The Minister For Immigration (2020) 27 FCR 420; [2020] FCAFC 94 at [129] – [138]:

The relevant principles in relation to legal unreasonableness have been given detailed consideration and analysis in many cases in recent times: see, in particular, Minister for Immigration & Citizenship v Li (2013) 249 CLR 332; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1; Minister for Immigration & Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11; Minister for Immigration & Border Protection v Eden (2016) 240 FCR 158; [2016] FCAFC 28; Muggeridge v Minister for Immigration & Border Protection (2017) 255 FCR 81; [2017] FCAFC 200 ; Minister for Immigration & Border Protection v SZVFW (2018) 264 CLR 541; Minister for Immigration & Border Protection v Haq (2019) 267 FCR 513; [2019] FCAFC 7; Singh v Minister for Home Affairs [2020] FCAFC 7; BFH16 v Minister for Immigration & Border Protection [2020] FCAFC 54.

It is unnecessary to add significantly to what has already been written on the topic. It is sufficient to provide a brief summary of the general principles that emerge from those cases. The general principles are now so well accepted in the authorities that it is unnecessary to provide specific case citations. Following are the main points.

First, the concept of legal unreasonableness concerns the lawful exercise of power. Legal reasonableness, or an absence of legal unreasonableness, is an essential element in the lawfulness of decision-making.

Second, the Court’s task in determining whether a decision is vitiated for legal unreasonableness is strictly supervisory. It does not involve the Court reviewing the merits of the decision under the guise of an evaluation of the decision’s reasonableness, or the Court substituting its own view as to how the decision should be exercised for that of the decision maker. Nor does it involve the Court remaking the decision according to its own view of reasonableness.

Third, there are two contexts in which the concept of legal unreasonableness may be employed. The first involves a conclusion after the identification of a recognised species of jurisdictional error in the decision-making process, such as failing to have regard to a mandatory consideration, or having regard to an irrelevant consideration. The second involves an “outcome focused” conclusion without any specific jurisdictional error being identified.

Fourth, in assessing whether a particular outcome is unreasonable, it is necessary to bear in mind that, within the boundaries of power, there is an area of “decisional freedom” within which a decision maker has a genuinely free discretion. Within that area, reasonable minds might differ as to the correct decision or outcome, but any decision or outcome within that area is within the bounds of legal reasonableness. Such a decision falls within the range of possible lawful outcomes of the exercise of the power. It is only if the outcome falls outside the area of decisional freedom that it can be said to be legally unreasonable.

Fifth, in order to identify or define the width and boundaries of this area of decisional freedom and the bounds of legal reasonableness, it is necessary to construe the provisions of the statute which confer the relevant power. The task of determining whether a decision is legally reasonable or unreasonable involves the evaluation of the nature and quality of the decision by reference to the subject matter, scope, and purpose of the relevant statutory power, together with the attendant principles and values of the common law concerning reasonableness in decision-making. The evaluation is also likely to be fact-dependant and to require careful attention to the evidence.

Sixth, where reasons for the decision are available, the reasons are likely to provide the main focus for the evaluation of whether the decision is legally unreasonable. Where the reasons provide an evident and intelligible justification for the decision, it is unlikely that the decision could be considered to be legally unreasonable. However, an inference or conclusion of legal unreasonableness may be drawn even if no error in the reasons can be identified. In such a case, the Court may not be able to comprehend from the reasons how the decision was arrived at, or the justification in the reasons may not be sufficient to outweigh the inference that the decision is otherwise outside the bounds of legal reasonableness or outside the range of possible lawful outcomes.

Seventh, the evaluation of whether a decision is legally unreasonable should not be approached by way of the application of particular definitions, fixed formulae, categorisations, or verbal descriptions. The concept of legal unreasonableness is not amenable to rigidly defined categorisation or precise textural formulary. That said, the consideration of whether a decision is legally unreasonable may be assisted by reference to descriptive expressions that have been used in previous cases to describe the particular qualities of decisions that exceed the limits and boundaries of statutory power. The expressions that have been utilised in past cases include decisions which are “plainly unjust”, “arbitrary”, “capricious”, “irrational”, “lacking in evident or intelligible justification”, and “obviously disproportionate”: Muggeridge at [65]. It must be emphasised, however, that the task is not an a priori definitional or “checklist” exercise: Singh at [42]. Rather, it involves the Court evaluating the decision with a view to determining whether, having regard to the terms, scope, and purpose of the relevant statutory power, the decision possesses one or more of those sorts of qualities such that it falls outside the range of lawful outcomes.

Eighth, defective, illogical, or irrational reasoning or fact finding may support a finding that the ultimate decision or exercise of discretion was legally unreasonable, particularly where the illogicality relates to a critical matter upon which the decision or exercise of discretion turned. Muggeridge was such a case. That provides an appropriate segue to a consideration of the principles relating to the finding of jurisdictional error on the basis of illogicality or irrationality.

84    In my view, the primary judge’s decision fell well within the relevant area of “decisional freedom”, that being the area within which reasonable minds might differ as to the correct decision or outcome, but any decision or outcome within that area is within the bounds of legal reasonableness.

85    The decision was not on any view lacking in evident or intelligible justification, nor could it fairly be described as being plainly unjust, arbitrary, capricious, irrational or, obviously, disproportionate. That is particularly so given the sorry history of the litigation up to the point of the primary judge’s decision.

86    Dr Drummond maintained that in the days prior to the October 2022 hearing he was exhausted and burned out. He emphasised that the need to prepare cross-examination bundles was onerous and overwhelming and, in all the circumstances, beyond his physical and mental capacities. He largely attributed his poor mental state to the fact that he had been required to prepare for and present his application for leave to appeal to the Full Court in respect of the appointment of the litigation guardian. He stated that appointment had distracted him from otherwise preparing for the appeal.

87    It may readily be accepted that Dr Drummond felt pressured and mentally exhausted in weeks leading up to the October hearing date given that he had to prepare for and present his application for leave to appeal. That, however, was to a large extent a problem of his own making. He had been represented by counsel, Mr Duc, but for reasons unknown had withdrawn Mr Duc’s retainer. Moreover, litigation is an inherently stressful process and all litigants may be expected to suffer some pressure and exhaustion, particularly those that choose to represent themselves. The fact that Dr Drummond may have felt pressured and exhausted by the litigation did not necessarily entitle him to an adjournment. More to the point, it did not justify Dr Drummond’s actions in simply failing to attend the adjourned final hearing of his case, all the more so given the extraordinary history of the litigation.

88    However Dr Drummond may have felt on the morning of 6 October 2022, and accepting for present purposes that he may have felt burnt out, exhausted and unable to proceed with the hearing, it was entirely unacceptable for him to simply fail to appear before the court on that day. That is so particularly given CIT’s opposition to his adjournment application and the indications in the correspondence that the primary judge was not inclined to grant an adjournment based merely on the correspondence that had been sent to the court.

89    The appropriate course in those circumstances was for Dr Drummond to appear in court and press his adjournment application. He did not do so. Instead, he simply took it upon himself to not appear and effectively give himself an adjournment. I am not persuaded that the primary judge’s response to that rather high-handed conduct by Dr Drummond was unreasonable, let alone unjust.

90    It was, of course, a serious matter for the primary judge to dismiss the primary proceeding as a result of Dr Drummond’s non-appearance. This was, however, a case where it was plainly open to the primary judge, given the extraordinary history of the litigation and the circumstances of Dr Drummond’s non-appearance, to conclude that “enough was enough”: cf Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18.

91    It follows that I am unable to see any merit in any of Dr Drummond’s appeal grounds or submissions such as to warrant the grant of leave to appeal. Dr Drummond’s application for leave to appeal must accordingly be dismissed.

92    The question of costs will be dealt with separately.

Associate:

Dated:    5 May 2023