FEDERAL COURT OF AUSTRALIA Ejueyitsi v Bond University [2012] FCA 1514 Citation: Ejueyitsi v Bond University [2012] FCA 1514 Appeal from: Application for extension of time: Ejueyitsi v Bond University [2012] FMCA 872 Parties: VINCENT B EJUEYITSI v BOND UNIVERSITY File number: QUD 552 of 2012 Judge: LOGAN J Date of judgment: 20 December 2012 Catchwords: PRACTICE AND PROCEDURE – appeals – decision of Federal Magistrates Court – summary dismissal – interlocutory judgment – extension of time and leave to appeal sought – principles on application for leave to appeal – merits of application considered – extension of time refused Legislation: Competition and Consumer Act 2010 (Cth) Federal Magistrate Court Rules 2001 r 8.01, r 13.07(1)(b)(ii), r 13.10(a) Cases cited: Décor Corporation Pty Ltd v Dart Industries Incorporated (1991) 33 FCR 397 cited Ioannou v Commonwealth of Australia [2012] FCA 1228 cited O'Donoghue v Australian Information Commissioner [2012] FCA 1219 cited Rana v University of South Australia (2004) 136 FCR 344 followed Singh v the Owners Strata Plan No 11723, No 4 [2012] FCA 1180 cited Tinkler v Elliott [2012] ALL ER (D) 94; [2012] EWCA Civ 1289 Date of hearing: 20 December 2012 Place: Brisbane Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 23 Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondent: Mr T Pincus Solicitor for the Respondent: Bartley Cohen IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 552 of 2012 BETWEEN: VINCENT B EJUEYITSI Applicant AND: BOND UNIVERSITY Respondent JUDGE: LOGAN J DATE OF ORDER: 20 DECEMBER 2012 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. The application for an extension of time within which to seek leave to appeal is dismissed. 2. The applicant is to pay the respondent's costs of and incidental to the application, to be taxed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011 IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 552 of 2012 BETWEEN: VINCENT B EJUEYITSI Applicant AND: BOND UNIVERSITY Respondent JUDGE: LOGAN J DATE: 20 DECEMBER 2012 PLACE: BRISBANE REASONS FOR JUDGMENT 1 This matter has its origin in an application filed on 7 February 2012 in the registry at Melbourne of the Federal Magistrates Court by the present applicant, Mr Vincent Ejueyitsi (Mr Ejueyitsi). In that application, Mr Ejueyitsi named as respondent Bond University (the University). The University is the respondent to an application which Mr Ejueyitsi has come to make in this Court as a sequel to proceedings in the Federal Magistrates Court. More of the application, shortly. First, it is necessary to detail the course of proceedings in the Federal Magistrates Court. 2 In his originating application to that court, Mr Ejueyitsi sought, by way of final orders, a full refund of tuition fees plus damages. He specified, as the grounds of his application against the University, the following: Damages experienced by applicant resulting from the negligence of the respondent to fully communicate his assessment conditions, policy and requirement of the programs. 3 The University made a response to that originating application on 21 February 2012. That same day, the University made what, in the practice of the Federal Magistrates Court, is termed an "application in a case". By that application, the University sought, pursuant to r 8.01 of the Federal Magistrates Court Rules 2001, that the originating application be transferred to the Brisbane registry of the Federal Magistrates Court, together with an order for costs. 4 That particular application in the case was listed for hearing in the Federal Magistrates Court on 21 March 2012. The application came on that day before Turner FM. A transcript of the proceedings before his Honour is in evidence. That discloses that Mr Ejueyitsi appeared on his own behalf and that a Mr Condliffe appeared for the University. At the outset of the proceedings that day, the Federal Magistrate enquired, seemingly of Mr Condliffe, whether the application before him "is basically an application to transfer the matter to the Brisbane registry of the court?" To that, as the transcript records, Mr Condliffe replied: Your Honour, the respondent is also seeking application to dismiss the matter, pursuant to orders 13.10(a) and 10(b) of the rules of court and in the alternative, transfer the matter to the Brisbane registry; if your Honour decides not to do that: further appropriate directions. What then occurred, according to the transcript, was this exchange: HIS HONOUR: Well, what utility is there in me going through merits and having a look at that because that is what I have got to consider in dismissing it. MR CONDLIFFE: Yes. HIS HONOUR: When, if I don't dismiss it, the matter goes to Brisbane. MR CONDLIFFE: Yes, your Honour. HIS HONOUR: What rule are you seeking to proceed under for the dismissal? MR CONDLIFFE: It's rule 13.10(a) and rule 10(b). HIS HONOUR: Yes. Thank you. Yes. See, to decide that issue, I've really got to look at the merits of the matter. MR CONDLIFFE: Yes. My understanding in relation to rule 10(a), the grounds for making the application or for succeeding in that application would be that the applicant has shown there's no reasonable prospects of success. 5 There then follows some further enquiry or perhaps a repetition by his Honour that the nature of the task, if a dismissal was to be dealt with, would involve an examination of the merits. His Honour then observes: So if the matter is to be heard, I would rather it be heard by one person. To this, Mr Condliffe replies: Yes, your Honour. His Honour then responds, seemingly by way of adding to his earlier observation: In Brisbane. 6 Mr Condliffe then replied affirmatively to this. The following then is disclosed in the transcript: HIS HONOUR: Have me look at the merits, then possibly transfer it to Brisbane. MR CONDLIFFE: Yes. Well, I think that's probably the logical way to proceed. A similar matter in relation to the same applicant has become before the court last year, which may assist the court. I can give you a copy of that matter to hand up, your Honour. 7 What follows thereafter, according to the transcript, is an exploration of where witnesses material or at least thought, at that stage, to be material to a substantive hearing of the matter were located, together with, on Mr Ejueyitsi's part, reference to an ability to proceed by video link. There is nothing in the transcript of proceedings that day, up to the point where the transcript records "Judgment Delivered" which would, in any way, suggest that the Federal Magistrates Court proceeded to hear submissions from either party on the question of whether or not the originating application ought summarily to be dismissed. That impression is confirmed by the nature of the orders which were made by the Federal Magistrates Court that day. The orders were: (1) Pursuant to r 8.01 of the Federal Magistrates Court Rules 2001, the proceedings are transferred to the Brisbane registry of the Federal Magistrates Court to be listed on a date and time to be advised by that Registry. (2) Costs are reserved. 8 The reference in the transcript of the proceedings on 21 March 2012 to "Judgment Delivered" reflects a settled practice on the part of the reporting service. That practice is not to incorporate into the transcript of the proceedings the text of a judgment delivered ex tempore, in other words, orally. Rather, the text is separately prepared and released to the parties only by authority of the relevant court or a magistrate or, as the case may be, a judge and then only after revision by the judicial officer concerned. The reasons in terms of necessary inference, must doubtless, have been delivered orally that day in Melbourne. 9 Unfortunately, those reasons as revised have not been furnished thereafter to the parties nor has either party put before me the terms of the reasons as revised. It was, of course, possible to request the same from Turner FM. Nonetheless, as I have said, the nature of the orders made that day having regard to the transcript of proceedings makes it pellucidly clear that the Federal Magistrates Court did not embark upon a hearing of an application for dismissal that day even though such an application was undoubtedly made orally. Instead, that application remained dormant. The application came on in Brisbane later that year before Jarrett FM on 21 June 2012. 10 On 20 September 2012, for reasons which his Honour then published, his Honour ordered that the application filed on 7 February 2012 be dismissed pursuant to r 13.07(1)(b)(ii) of the Federal Magistrates Court Rules 2001. Later, under the slip rule, his Honour corrected the order made that day so as to delete the reference to 13.07(1)(b)(ii). He further made a like correction to his reasons for judgment and, in each instance, inserted instead 13.10(a). 11 Mr Ejueyitsi was aggrieved by that order of dismissal. He took steps promptly to challenge the order although, as it transpired, not as promptly as the rules of this Court required. 12 This delay was not the result completely of inattention on his part to the practice and procedure of this Court. It needs to be recorded, unfortunately, that staff in the registry at Melbourne, which services both this Court and in general law matters also the Federal Magistrates Court, albeit for the best of reasons, contributed to the delay. So much is apparent from Mr Ejueyitsi's affidavit filed on 22 November 2012 in support of the present application to which, fairly on his part, is exhibited a letter to Mr Luke Humphries of JKR Lawyers by Ms Angela Josan, this Court's National Appeals Registrar of 15 November 2012. It is desirable, having regard to the nature of the application today, to set out in full the material parts of that letter: On 20 September 2012 in Brisbane, Jarrett FM gave summary judgment in proceeding MLG 111/2012. As such a judgment is interlocutory in nature, leave to appeal from that order is necessary. On 3 October 2012, Mr Ejueyitsi attended the Victoria Registry, without the assistance of a lawyer, with the intention of filing a Notice of Appeal from the Federal Magistrates Court. There were two difficulties facing Mr Ejueyitsi at this juncture. First, a party seeking to appeal an order as of right where no leave to appeal is necessary, needs to file a notice of appeal in the relevant registry within 21 days of the making of the order. That is not the case here. The documents required for filing were an Application for Leave to Appeal and supporting documents, not a Notice of Appeal. Second, any Application for Leave to Appeal (Form 117 pursuant to rule 35.12(1) and rule 35.13(a) of the Federal Court Rules 2011) is required to be filed in the Qld Registry within 14 days after the order is made, namely, on or before Thursday, 4 October 2012. Any application must also be accompanied by a draft notice of appeal and affidavit, amongst other things, as described in FCR 35.12(2). The staff who attended to Mr Ejueyitsi assisted him by offering to place the document to the Qld Registry. Although there is no mail register and no definitive record of when the document was posted, it is reasonable to assume that it was sent by post to the Qld Registry on 3 October 2012. Apart from the fact the Federal and Family Courts are co-located in the Harry Gibbs Commonwealth Law Courts in Brisbane, there is no apparent reason why Mr Ejueyitsi's document was not received by the Federal Court's Qld Registry. This is, of course, unfortunate. Your email of 8 November 2012 states that "Had our client's Notice of Appeal been received by the Brisbane Federal Court Registry from the Melbourne Federal Court Registry on 4 October 2012, our client's Notice of Appeal would have been filed in time." That is not the case as it was an Application for Leave to Appeal and supporting documents that were required to be filed in Qld by 4 October 2012 and not a Notice of Appeal. Notwithstanding the above, the Qld Registry has accepted Mr Ejueyitsi's "Notice of Appeal" for filing. However, that does not over come the difficulty that leave to appeal is necessary. As more than 14 have passed, an extension of time to seek leave to appeal in a Form 118 is required pursuant FCR 35.14(1). I understand that on 24 October 2012, Greenwood J ordered that Mr Ejueyitsi is to file and serve such an application by 21 November 2012. Once filed, the application will be listed for hearing. [emphasis in original] 13 To set out that letter in full is to set out particular facts and also references to rules of Court which are material. As to the factual matters recited in the letter, this is common ground between the parties. The letter, therefore, is a convenient way of succinctly setting out some but not quite all of the material facts. Another fact which is material to the present application is that it appears that the documents posted from the Court's Melbourne Registry, with the intention of their arriving in the Queensland Registry of this Court, in fact ended up being sent to the Brisbane Registry of the Family Court. In other words, notwithstanding the best of intentions on the part of Mr Ejueyitsi in seeking to take advantage in turn of the best of intentions on the part of the registry staff in Melbourne, human error has intruded. That error was not Mr Ejueyitsi's fault. 14 The question for today, after this long preliminary recitation and as is apparent from the succinct summary of material facts in the registrar's letter, is whether or not there ought to be an extension of time within which to seek leave to appeal and, for that matter, whether or not there ought to be a grant of leave to appeal. 15 The University, very properly, has not pressed in submissions the question as to whether or not an explanation has been shown by Mr Ejueyitsi for a failure to seek leave to appeal within the time provided. That is an approach which I propose to follow as well. In other words, I decide this application, not on the basis of any failure on the part of Mr Ejueyitsi to apply within time or to provide an adequate explanation, but rather upon whether or not the case is, in any event, one which warrants a grant of leave. 16 In adopting that approach, there is something of an element of indulgence to Mr Ejueyitsi. That is because the process which initially he did seek to file was not an appropriate process for challenging an interlocutory judgment of the Federal Magistrates Court. Earlier this year, in the Court of Appeal of England and Wales, the Vice-President, Kay LJ, with whom Munby and Lewison LJJ agreed, made the following statement in Tinkler v Elliott (2012) ALR(D) 94, [2012] EWCA Civ 1289 at [32]: I accept that there may be facts and circumstances in relation to a litigant in person which may go to an assessment of promptness but, in my judgment, they will only operate close to the margins. An opponent of a litigant in person is entitled to assume finality without expecting excessive indulgence to be extended to the litigant in person. Those particular remarks have commended themselves to other judges of this Court: see Ioannou v Commonwealth of Australia [2012] FCA 1228 (McKerracher J); O'Donoghue v Australian Information Commissioner [2012] FCA 1219 (McKerracher J) and Singh v The Owners Strata Plan No. 11723, No. 4 [2012] FCA 1180 (Griffiths J). They also commend themselves to me. That said, particularly having regard to the contribution to the delay by registry staff, this is not a case, as I have said, which I regard as appropriate to deal with on the basis of a lack of promptness by a litigant in person. 17 I turn then to consider the merits of the application for leave to appeal. In that regard, Mr Pincus of counsel has helpfully drawn my attention to a judgment of Lander J, Rana v University of South Australia (2004) 136 FCR 344, in which his Honour makes reference to pertinent authority in relation to the question of a grant of leave, particularly Décor Corporation Pty Ltd v Dart Industries Incorporated (1991) 33 FCR 397, as well offering a valuable summary of practice and procedure in the Federal Magistrates Court in relation to applications for dismissal. 18 His Honour also makes reference to the practice in that court which does not entail formal pleadings. There is in the present case a similar difficulty presented by that practice in that it renders it difficult indeed, in the absence of formal pleadings, to discern the nature of causes of action asserted by an applicant in that court. 19 Fortunately, it is not necessary for the purpose of determining today's application to descend into exactly what were the causes of action asserted in the Federal Magistrates Court. On the face of the originating application, there is reference only to negligence. That would suggest an absence of jurisdiction on the part of the Federal Magistrates Court to entertain the application at all. That is because, as with this Court (and subject to presently immaterial exceptions), a proceeding brought only at common law is not a proceeding within jurisdiction. However, there are other indications that Mr Ejueyitsi was relying upon the Competition and Consumer Act 2010 (Cth), inferentially, relying on misleading or deceptive conduct on the part of the University towards him. There would, of course, be jurisdiction in the Federal Magistrates Court to entertain a claim of that nature. Further, if it arose out of the same facts and circumstances, a cause of action in negligence could also be entertained in the accrued jurisdiction. 20 As I have said, however, it is not necessary today to delve into matters of jurisdiction. That is so because the nature of the challenge which Mr Ejueyitsi promotes or would seek to promote to the Federal Magistrates Court judgment of 20 September 2012 is not that there was a dismissal wrongly on the basis of a finding of an absence of a reasonable cause of action. Rather, the basis for the challenge, as is put in different ways but to no different end in the notice of appeal in draft, is that there had already been, in Melbourne in the Federal Magistrates Court, a decision on the merits of a dismissal application such that the Federal Magistrates Court in Brisbane was bound by the earlier outcome in the court in Melbourne. 21 Mr Ejueyitsi put this on the basis of Jarrett FM being functus officio. That is not, with respect, a correct characterisation of the nature of the argument, but the substance of the argument which he put was clear enough. That is, his submission was that there had already been a determination on the merits of the dismissal application such that the Federal Magistrates Court no longer had an ability to entertain the dismissal application made orally by the University. 22 Had there been a determination on the merits of that dismissal application on 21 March 2012 by the Federal Magistrates Court, I would have readily granted leave to appeal. There would be a real question as to whether or not the determination on the merits rendered the question of whether, on that dismissal application, it could be entertained again res judicata. However, as will be apparent from my recitation of the events in Melbourne on 21 March 2012, no such determination on the merits was made. It follows from this that the challenge which Mr Ejueyitsi seeks to promote would be doomed to fail. In these circumstances, it would be futile to grant leave to appeal or, for that matter, to extend time. 23 The orders, therefore, are firstly that the application for an extension of time within which to seek leave to appeal is dismissed. The further order I make is that the applicant pay the respondent's costs of and incidental to the application, to be taxed if not agreed. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate: Dated: 5 February 2013