FEDERAL COURT OF AUSTRALIA Dobson v Australian Postal Corporation [2013] FCA 320 Citation: Dobson v Australian Postal Corporation [2013] FCA 320 Appeal from: Application for extension of time: Dobson v Australian Postal Corporation [2012] FMCA 1016 Parties: RORY PAUL DOBSON v AUSTRALIAN POSTAL CORPORATION File number: QUD 596 of 2012 Judge: LOGAN J Date of judgment: 11 April 2013 Catchwords: PRACTICE AND PROCEDURE – application for extension of time pursuant to r 35.13 of the Federal Court Rules 2011 (Cth) – extension sought for leave to appeal against summary dismissal of proceeding – whether explanation for delay acceptable – whether the prospects of a grant of leave to appeal in the event that an extension was granted were such as to warrant an extension – whether a substantial injustice would be done to the applicant upon the assumption that the decision was wrong and whether the judgment was attended with sufficient doubt to warrant a grant of leave. Legislation: Constitution Ch III Disability Discrimination Act 1992 (Cth) ss 6, 15 Federal Court of Australia Act 1976 (Cth) ss 24, 31A Federal Magistrates Act 1999 (Cth) ss 12, 17A Federal Court Rules 2011 (Cth) r 35.13(a), r 35.14(3), r 36.03 Federal Court Rules 1979 (Cth) O 11, r 16, O 81, r 5 Federal Magistrates Court Rules 2001 (Cth) r 13.10, r 41.02A Cases cited: Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 236 ALR 720 cited Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 considered Décor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 cited Dobson v Australian Postal Corporation [2012] FMCA 1016 considered Ejueyitsi v Bond University [2012] FCA 1514 considered Fair Work Ombudsman v Toyota Material Handling (NSW) Pty Limited (2012) 295 ALR 129 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 cited R v Tupou; ex parte A-G (Qld) [2005] QCA 179 cited Scott v Human Rights and Equal Opportunity Commission [2007] FCA 2055 cited Singh v The Owners Strata Plan No. 11723 (No. 4) [2012] FCA 1180 cited Spencer v The Commonwealth (2009) 241 CLR 118 considered Tinkler v Elliott [2012] All ER (D) 94; [2012] EWCA Civ 1289 considered Walker v The State of Victoria (2011) 279 ALR 284 considered Walker v State of Victoria [2012] FCAFC 38 cited White Industries Australia Ltd v Federal Commissioner of Taxation (2007) 160 FCR 298 considered Date of hearing: 8 February 2013 Place: Brisbane Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 52 Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondent: Ms S Moody Solicitor for the Respondent: Sparke Helmore Lawyers IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 596 of 2012 BETWEEN: RORY PAUL DOBSON Applicant AND: AUSTRALIAN POSTAL CORPORATION Respondent JUDGE: LOGAN J DATE OF ORDER: 11 APRIL 2013 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. The application for an extension of time within which to apply for 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 596 of 2012 BETWEEN: RORY PAUL DOBSON Applicant AND: AUSTRALIAN POSTAL CORPORATION Respondent JUDGE: LOGAN J DATE: 11 APRIL 2013 PLACE: BRISBANE REASONS FOR JUDGMENT 1 Mr Rory Dobson is a now former employee of the respondent, the Australian Postal Corporation (Australia Post). On 9 July 2010, Mr Dobson resigned from his employment with Australia Post. He had been employed at Australia Post's Northgate Mail Centre from 30 January 2006 until the date of his resignation. 2 Mr Dobson believes that his resignation from his employment was the result of unlawful discrimination against him by Australia Post, contrary to the Disability Discrimination Act 1992 (Cth) (DDA). Being of that belief, Mr Dobson instituted a proceeding against Australia Post in this Court by which he sought a declaration of unlawful discrimination by it contrary to ss 15(2)(a), (b) and (d) of the DDA and damages. That application was later remitted to the Federal Magistrates Court. It was listed for trial before the Federal Magistrates Court last year. On the first day of the trial, it by then being apparent that any trial would take much longer than the time originally allowed, Australia Post sought the summary dismissal of the proceeding. The learned federal magistrate entertained that application and, after hearing submissions, reserved judgment in respect of the application. The application was made under s 17A(1) of the Federal Magistrates Act 1999 (Cth) (Federal Magistrates Act) and r 13.10 of the Federal Magistrates Court Rules 2001 (Cth) (FMC Rules). 3 On 28 September 2012, for reasons which were given ex tempore that day, his Honour upheld the summary dismissal application and dismissed Mr Dobson's application with costs: Dobson v Australian Postal Corporation [2012] FMCA 1016. 4 On 25 October 2012, Mr Dobson filed an application in this Court by which he sought an extension of time within which to seek leave to appeal, together with a related grant of leave to appeal. A draft notice of appeal was included with his application. If time is extended, he seeks leave to appeal on the following grounds: GROUNDS OF APPEAL 1. His Honour, Burnett FM, erred by determining that the applicant's originating application has no reasonable prospects of success and therefore erred in ordering the dismissal of that application filed on 30 May 2011. 2. His Honour erred by determining factual issues on the application for summary dismissal, thereby foreclosing the applicant from the benefit of the leading of his evidence, cross-examination and making detailed written submissions at the close of evidence that a hearing of the applicant's originating application would have provided. 3. His Honour erred by determining that on the evidence as it presently stands there is nothing to demonstrate that any of the requirements were such that because of the applicant's adjustment disorder disability he did not or would not comply or is not able or would not be able to comply, with the requirements. 4. His Honour erred by determining that the medical evidence that does exist is against the applicant on the point of his inability to comply with any of the requirements because of the disability. 5. His Honour erred by determining that Dr Field's 1 February 2010 assessment that the applicant "would be able to return to work" was evidence that the applicant was able to comply with the requirement to pass a psychological "Fitness for Duty Assessment" before the respondent would grant his 28 October 2009 shift transfer request. 6. His Honour erred by determining that there is no evidence that the respondent required the applicant to remain employed subject to the reformulated requirements [(i), (ii), (iv), (vi), (viii) and (ix)] as expressed in the applicant's written submissions of 5 April 2012. 7. His Honour erred by determining that the applicant's originating application does not specifically address the statutory requirements of the Disability Discrimination Act 1992 (Cth). 8. His Honour erred by determining that the applicant's refusal of the respondent's 8 July 2011 offer of compromise was imprudent and therefore erred in ordering the applicant to pay the respondent's costs on an indemnity basis commencing from 25 July 2011 onwards. Furthermore, his Honour failed to give adequate reasons for his finding that the applicant's refusal of the respondent's $5000 offer of compromise was imprudent. 5 Viewed in isolation, there is merit in Australia Post's submission that proposed appeal ground 1 is meaningless. I regard it as nothing more than a preamble with the specific grounds supplying the basis upon which he contends that the conclusion that the proceeding had no reasonable prospect of success being supplied by the paragraphs which follow. 6 It is necessary for Mr Dobson to seek an extension of time because an application for leave to appeal must be filed within 14 days after the date on which the judgment was pronounced or the order made: r 35.13(a), Federal Court Rules 2011 (Cth) (Rules). 7 The summary dismissal of a proceeding by the Federal Magistrates Court on the basis of an absence of a reasonable cause of action is interlocutory, not final, in character: Rana v University of South Australia (2004) 136 FCR 344 at [10] (Lander J) (Rana). So, too, is dismissal of a proceeding on the basis that the Federal Magistrates Court is satisfied that the applicant does not have a reasonable prospect of success an order which is interlocutory in character: Scott v Human Rights and Equal Opportunity Commission [2007] FCA 2055 at [16]. As will be seen, the learned federal magistrate made reference to provisions which separately and respectively authorise dismissal on these bases. However approached, the resultant order of dismissal was interlocutory in character. 8 An appeal only lies to this Court from a judgment of the Federal Magistrates Court which is interlocutory by leave: s 24(1A), Federal Court of Australia Act 1976 (Cth) (Federal Court of Australia Act). 9 Mr Dobson's application was filed 13 days late (not 4 days late, as was erroneously submitted on behalf of Australia Post by reference to r 36.03, which governs time only in respect of appeals as of right or those in respect of which there has been a grant of leave and, even on the basis that that rule did apply, by reference to an incorrect calculation of the 21 day period for which the rule provides). That application has been referred to me for hearing because the docket judge is unable, by reason of the truly extraordinary demands of a lengthy, class action trial, to hear it within a reasonable time. 10 In an application of this kind it is necessary to take into account whether there is an explanation for the delay and, if so, whether that explanation is acceptable. It is also relevant to take into account the prospects which the application for leave would have if an extension of time were granted. As to the latter, leave to appeal is granted if the decision under prospective challenge is attended with sufficient doubt to warrant its scrutiny by an exercise of appellate jurisdiction and if a substantial injustice would be done to the applicant upon the assumption that the decision was wrong: Décor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-400. The two considerations are not unrelated: Fair Work Ombudsman v Toyota Material Handling (NSW) Pty Limited (2012) 295 ALR 129 at [38]. If, for example, the prospect of even practical injustice is great, the strength of the doubt sufficient for a grant of leave may be correspondingly less. An evaluative judgment as to how the considerations interplay will necessarily be case specific. 11 Mr Dobson's explanation for the delay in his filing his application referred to his absence of receipt of a copy of the reasons for judgment of the learned federal magistrate within what he understood, as a result of a communication from a registrar of the Federal Magistrates Court, to be the 21 day period after the judgment within which he could file an appeal. He also mentioned that he did not receive a copy of the order dismissing his application until 24 October 2012. It was common ground that, as Mr Dobson stated, he had informed Australia Post's solicitors on 18 October 2012 that he intended to file an application for leave to appeal. 12 Australia Post did not concede that Mr Dobson had provided an acceptable explanation. Further, and in any event, it submitted that his prospects of success in relation to a grant of leave to appeal were such that there was no point in granting him any extension. 13 The circumstances of this case offer a useful opportunity to make some observations on a number of features of practice and procedure and the administration of justice in cases involving litigants in person. 14 In 2012, 28 September fell on a Friday. As early as the following Monday, by a request made directly to the Chief Federal Magistrate, Mr Dobson sought a copy of the reasons for judgment of the learned federal magistrate. In the result, he did not receive a copy of those reasons until 15 November 2012. 15 That a layman, even a layman with as good a command of the written and spoken word as Mr Dobson patently demonstrated in his written and oral submissions in respect of his application, might consider that he had not been given the reasons for judgment of the Federal Magistrates Court when they were given orally on 28 September 2012 in open court by the learned federal magistrate is understandable but erroneous. It is not unknown for some legal practitioners to labour under that same misconception. It is likewise an error not to appreciate that, for the purposes of the rules, the order of dismissal was "pronounced" when it was stated in open court by the federal magistrate on 28 September 2012. 16 Rule 35.14(3) of the Rules requires that the following be filed with an application in form 118 for an extension of time within which to seek leave to appeal: (a) the judgment or order from which leave to appeal is sought; (b) the reasons for the judgment or order, if published; (c) an affidavit stating: (i) briefly but specifically, the facts on which the application relies; and (ii) why the application for leave to appeal was not filed within time; and (d) a draft notice of appeal that complies with rules 36.01 (1) and (2); (e) a statement by the applicant of whether the applicant wants to have the application considered without oral argument. 17 It was incumbent upon Mr Dobson to procure from the Federal Magistrates Court a sealed copy of the order made by that court on 28 September 2012. It may be that there is an ambiguity about the word "published" in r 35.14(3)(b) of the Rules. When a judicial officer gives reasons for judgment ex tempore in open court those reasons are published. They are made public. Nonetheless, context suggests that the word "published" in r 35.14(3)(b) of the Rules refers to the frequently adopted practice (of which these reasons will offer an example) of giving written reasons for judgment which are prepared in advance and then published to the world at large by being formally handed down in open court. 18 Given that the reasons for judgment of the federal magistrate were delivered ex tempore, there was no need for Mr Dobson's application to be accompanied by a copy of the reasons for judgment of the federal magistrate in order for his application to be competent. It was necessary only that the reasons for judgment of the federal magistrate be available at the time when the extension of time application came on for hearing. 19 For that purpose, the learned federal magistrate was entitled to revise from a transcript or other note the reasons for judgment as delivered by him orally. As to that revision, the degree of latitude afforded to a judicial officer is more liberal in respect of a civil proceeding such as the present than a criminal sentencing proceeding: R v Tupou; ex parte A-G (Qld) [2005] QCA 179. In that case, de Jersey CJ, Atkinson and Mullins JJ agreeing, observed that, "Revising sentencing remarks may be approached differently from the revision of judgments delivered ex tempore in civil cases where the Judge is rightly allowed considerable licence." Even so, even in a civil proceeding, a judicial officer would not, in my view, be entitled completely to change the substance of reasons delivered ex tempore. 20 Undertaking such a revision must these days necessarily await the receipt of the transcript concerned and, even then, await its turn for attention in the face of the relentless competing demands on a judicial officer of a busy court of original jurisdiction such as the Federal Magistrates Court. I make these observations because, in their absence, it might be thought that a delay of some six weeks in their provision was unreasonable and that it was but a mere formality for the Federal Magistrates Court to have supplied Mr Dobson with a copy of the reasons for judgment, especially after he had taken the unusual and unorthodox course of requesting the same directly from the administrative head of that court. 21 That is a practice not to be encouraged. Its adoption suggests a misconception about the role of the Chief Federal Magistrate. It is not necessary in this case to explore the extent to which s 12 of the Federal Magistrates Act, which sets out the responsibilities of the Chief Federal Magistrate, is or is not declaratory of the duties which may permissibly be undertaken by the administrative head of a court constituted under Ch III of The Constitution, relative to other judicial officers appointed under that chapter. What can be stated is that, in relation to the exercise of judicial power, which includes the delivery and revision of reasons for judgment, the Chief Federal Magistrate did not have a functional role in relation to the learned federal magistrate akin to that of a supervisor of subordinate, administrative decision-makers in the public or private sector. The usual means of communication with a court and the one Mr Dobson should have adopted was to direct his request for a copy of written reasons to the registrar who would, in turn, relay the same to the chambers of the federal magistrate concerned. There is a separate practice, approved by the judicial officers of most courts, whereby inquiries concerning when a judgment reserved for a lengthy period might be expected to be delivered. That does admit of an inquiry, via the head of a branch of the legal profession, to the administrative head of a court who, in turn, relays that request in a neutral way to the judicial officer concerned, but that practice had no application in the present case. 22 Revision was no mere formality. Further, it was in the interests of justice, which include those of Mr Dobson but extend materially also to Australia Post and to this Court that all concerned have the benefit of considering the merits of Mr Dobson's extension application, when it came on for hearing, by reference to reasons permissibly revised by the learned federal magistrate. The learned federal magistrate's reasons as revised were provided in good time for that purpose. It was obviously desirable for them to have been furnished as soon as possible after the request was made, however unorthodox the manner in which that request was made, but, as I have observed, many factors can intrude as to when that furnishing is reasonably possible. 23 In Ejueyitsi v Bond University [2012] FCA 1514 at [16] (Ejueyitsi) I drew attention to an observation which had been made last year in Tinkler v Elliott [2012] All ER (D) 94; [2012] EWCA Civ 1289 at [32] (Tinkler v Elliott) in the Court of Appeal of England and Wales, by the Vice-President, Kay LJ, with whom Munby and Lewison LJJ agreed, in relation to observance of time limits specified in the rules of court by litigants in person: 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. I expressed agreement with that observation, as had other judges of the 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). 24 As in Ejueyitsi and taking Mr Dobson's evidence at face value, another reason for the delay is explained by a registry error, in this instance incorrect advice as to the relevant filing period. It appears that the advice was oral, not written. Whether the advice was indeed erroneous might depend on the nature of the question posed and the particularity of the detail about the judgment below given to the registry. If, for example, the question were put at the level of generality as to the length of time within which a notice of appeal to this Court from the Federal Magistrates Court had to be filed, the answer given would be correct. 25 It is not the role of registrars to act as legal advisers for a party, much less is the establishment of the registry, which services this Court and, in general law matters, the Federal Magistrates Court, funded so as to undertake such a role. Nonetheless, at a time when the public funding of civil legal aid, even for the valuable initial assessment and referral service until recently and for all too brief a period provided to litigants in person in this Court and in general law matters in the Federal Magistrates Court by the Queensland Public Interest Law Clearing House, has yielded to other calls on public funds, registrars are frequently asked for advice on matters of practice and procedure (and sometimes even substantive law) by litigants in person. 26 While it might be thought that there is a public interest in their providing basic advice on matters of practice and procedure, the difficulty about that is that it falls to registrars and their staff in the first instance to determine whether a document ought to be accepted for filing, having regard to the requirements in the Rules. One way of highlighting that difficulty is by analogy. A registrar who takes on the role of adviser assumes the risk of becoming both a player's coach and a referee. The role of the judicial branch of government and those who serve that branch is the independent adjudication according to law of proceedings in matters, not the provision of advisory opinions to anyone involved in those proceedings. Faced with a litigant in person aggrieved by an alleged civil wrong but ignorant of practice and procedure registrars and their staff can be placed in impossible situations. Humane considerations and knowledge of the want of any practical alternative sometimes do mean that registrars furnish basic advice on matters of practice and procedure to litigants in person. If so, it is incumbent on them to give accurate advice, within the limits of the question posed. 27 Mr Dobson's account of his experience with the registry was not challenged by Australia Post. While, as I have stated, context might lead to a different conclusion with respect to the accuracy of the advice which he received, I accept for the purposes of this application that Mr Dobson was not given accurate advice. That did not, in itself, relieve him from an obligation to read and comply with the Court's rules. It is though a relevant consideration in respect of an extension of time application. 28 Also relevant is the fact that Mr Dobson put Australia Post on notice, within what he thought (on registry advice) was the relevant filing period, that he intended to challenge the judgment given in the Federal Magistrates Court. Thereafter, he moved with dispatch in filing his application. This tells in favour of the extending of time. So, too, do the absence of any particular prejudice to Australia Post (other than a legitimate expectation that Mr Dobson would comply with the Rules in relation to any proposed challenge) and the fact that the period for which an extension is necessary is relatively short. It is also relevant that Australia Post itself was under the mistaken impression that the relevant filing time was 21, rather than 14, days. 29 All in all, unless there was no prospect of a grant of leave, were an extension to be given, I should be inclined to accept that Mr Dobson ought to be given an extension of time. That is because, at the margin (Tinkler v Elliott), the factors relied upon by Mr Dobson do tend in favour of an extension. 30 What then are his prospects for the grant of leave if time were extended? 31 Though interlocutory in character, there is a practical finality about the order made by the Federal Magistrates Court. The order is not one just directed to an issue of practice and procedure arising in the progress of a case towards trial. 32 Unlike the position in Rana, in this case the Federal Magistrates Court proceeding was not wholly bereft of pleadings. The proceeding was originally instituted in this Court and later remitted to the Federal Magistrates Court. The then O 81 r 5 of the Federal Court Rules 1979 (Cth) required that the proceeding be commenced by an application in Form 167. That form contemplated the giving of a description of the allegedly unlawful discrimination. Mr Dobson provided such a description by way of an annexed, paragraphed pleading to which Australia Post responded so as to join issue. Had the proceeding been instituted in the Federal Magistrates Court, the position would have been no different. By that time, the Chief Federal Magistrate had approved, for the purposes of r 41.02A of the FMC Rules a form of initiating application which similarly envisaged the detailing, if need be by a pleading, of the nature of the discrimination claim made. The learned federal magistrate did not therefore have the burden of trying to distil the causes of action relied upon by Mr Dobson from the contents of the affidavits filed in the proceeding. 33 As mentioned above, Mr Dobson alleged that he had been subject to unlawful discrimination contrary to ss 15(2)(a), (b) and (d) of the DDA. Regard to Annexure A to his application discloses that the events concerned are alleged to have occurred between mid-2009 and to have been continuing when he resigned in July 2010. Over that period, ss 15(2)(a), (b) and (d) of the DDA provided: 15 Discrimination in employment … (2) It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against an employee on the ground of the employee's disability or a disability of any of that employee's associates: (a) in the terms or conditions of employment that the employer affords the employee; or (b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment; or (c) …; or (d) by subjecting the employee to any other detriment. 34 As originally pleaded in his originating application, Mr Dobson alleged that the Australia Post had unlawfully discriminated against him by: (a) failing to adequately investigate and accurately document both the applicant's oral and written harassment complaints against Mr Thomas Sheedy, the mail officer at the Northgate Mail Centre, and his oral harassment complaint against Ms Dina Scott, the acting shift production manager at the Northgate Mail Centre (Complaint 1). (b) failing to prevent further incidents of locker graffiti at the respondent's Northgate Mail Centre (Complaint 2). (c) failing to grant the applicant's shift transfer request in a timely manner (Complaint 3). (d) requiring the applicant to pass psychological "Fitness for Duty Assessment" before granting a shift transfer request (Complaint 4). (e) requiring the applicant to remain rostered on the 6:00 pm fulltime shift until 4 February 2010 by failing to immediately transfer him to the 11:00 pm part-time shift (Complaint 5). (f) failing to provide the applicant with assistance in the form of "48/52" purchased leave (Complaint 6). (g) requiring the applicant to work an additional four weeks in 2010 by refusing to approve his "48/52" purchased leave application (Complaint 7). (h) failing to notify the applicant whilst he was on sick leave that three previous periods of sick leave were processed as "unauthorised absence" because he had not yet provided supporting medical evidence (Complaint 8). (i) failing to re-process two of the applicant's sick leave periods as "sick leave without pay" after the applicant provided supporting medical evidence (Complaint 9). I have included, parenthetically, a complaint number so as to accord with the designation adopted by the learned federal magistrate in his judgment. 35 In the course of submissions before the Federal Magistrates Court, Mr Dobson came to reformulate complaints 1, 2, 3, 6, 8 and 9 in these terms: 1. The requirement to remain employed without the respondent accurately documenting and adequately investigating his harassment complaints against Mr Thomas Sheedy and Ms Dina Scott; 2. The requirement to remain employed without the respondent taking all reasonable and practicable steps to prevent further incidences of locker graffiti at Northgate Mail Centre; 3. The 30 October 2009 requirement to remain rostered on the 6pm full-time shift indefinitely (no effective date for the shift transfer was provided by the respondent on 30 October 2009); ... 6. The requirement to remain employed without the respondent providing him with assistance in the form of "48/52" Purchased Leave (four (4) weeks unpaid leave). ... 8. The requirement to remain employed without the respondent notifying him, while he was on Sick Leave on 14 December, that three of his previous Sick Leave absences were to be processed as "Unauthorised Absence" because he had not yet provided supporting medical evidence; and 9. The requirement to remain employed without the respondent reprocessing two of his Sick Leave absences from "Unauthorised Absence" to "Sick Leave Without Pay" after he provided supporting medical evidence." 36 Mr Dobson reformulated these allegations of unlawful discrimination so as specifically to allege particular requirements. He approached his case, as did the learned federal magistrate and Australia Post, on the basis that the discrimination which he alleged was indirect in nature. The need for particularity as to "requirements" flowed from s 6(1) of the DDA, which materially provided: 6 Indirect disability discrimination (1) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if: (a) the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and (b) because of the disability, the aggrieved person does not or would not comply, or is not able or would not be able to comply, with the requirement or condition; and (c) the requirement or condition has, or is likely to have, the effect of disadvantaging persons with the disability. Australia Post was entitled, as a matter of procedural fairness, to know the nature of the unlawful "requirement(s)" allegedly made of Mr Dobson by it: Walker v The State of Victoria (2011) 279 ALR 284 at [194] (Tracey J), affirmed in this regard by the Full Court: Walker v State of Victoria [2012] FCAFC 38 at [35] per Gray and Reeves JJ and at [135] and [137] by Flick J. 37 The learned federal magistrate approached the summary dismissal application on the basis that s 17A(1) of the Federal Magistrates Act was "amplified" (reasons for judgment at [9]) by r 13.10 of the FMC Rules. In that his Honour was, with respect, mistaken. The nature of the error is apparent from the following passage from the judgment of Lindgren J in White Industries Australia Ltd v Federal Commissioner of Taxation (2007) 160 FCR 298 at [47] (White Industries): [47] … evidence may disclose that a person has or may have a "reasonable cause of action" or "reasonable prospects of success", yet the person's pleading does not disclose this. In such a case O 11, r 16 empowers the Court to strike out the pleading but … s 31A(2) would not empower the Court to give judgment for the respondent against the applicant. A failure after ample opportunity to plead a reasonable cause of action may suggest that none exists and therefore that the applicant has no reasonable prospects of success, but the existence of a reasonable cause of action and the pleading of a reasonable cause of action remain distinct concepts. [Emphasis added] Section 31A in the Federal Court of Australia Act, to which reference is made in this passage is the exact counterpart in that Act of s 17A in the Federal Magistrates Act and the same may be said of the then O 11, r 16 of the former Rules of which r 13.10 of the FMC Rules was an analogue. This passage from White Industries was expressly approved by French CJ and Gummow J in Spencer v The Commonwealth (2009) 241 CLR 118 at [23] (Spencer). In that same case (Spencer at [53] - [55]), Hayne, Crennan, Kiefel and Bell JJ emphasised that s 31A "departs radically" from other, earlier that provisions had permitted the summary disposal of a proceeding. They also found little utility in any paraphrasing of the language employed by Parliament in the provision. In short, a "reasonable prospect" means just that. 38 Apart from White Industries, there are numerous other authorities decided prior to Spencer in this Court, not all of which are readily reconcilable, as to what is entailed in exercising the power conferred by s 31A (s 17A). Mr Dobson referred to some of these in his written submissions. Such is the elucidation offered in Spencer, and binding elucidation at that, it would not, in my respectful opinion, serve any useful purpose to engage in a lengthy examination of what continuing guidance these other earlier cases offer. 39 In approaching the application, the learned federal magistrate had regard not just to the adequacy of the manner in which Mr Dobson had pleaded his unlawful discrimination case but also to the evidence in chief by that stage filed in the proceeding. The case was prepared for trial on the basis that the evidence in chief of each party would be filed in advance of trial. 40 The adequacy of Mr Dobson's pleading, in terms of whether it disclosed a cause of action under the DDA, was to be measured by reference to the pleading alone. Whether there existed a reasonable prospect of success was, as Lindgren J stated in White Industries in the passage quoted, a "distinct concept". In deciding whether or not Mr Dobson had, in terms of s 17A(2), "no reasonable prospect of successfully prosecuting the proceeding", it was permissible for the learned federal magistrate to take Mr Dobson's evidentiary case at its highest and to measure that against the claim as pleaded by him. 41 In his oral and written submissions and in his foreshadowed grounds of appeal, Mr Dobson highlighted that it was erroneous to determine factual issues on the summary judgment application. Were r 13.10 of the FMC Rules the sole jurisdictional basis upon which his Honour had acted, I would certainly have regarded this case as one where sufficient doubt existed to warrant an extension of time and related grant of leave to appeal. There was though an alternative jurisdictional basis, s 17A, which was called in aid and it was to this alternative basis that his Honour directed himself as to precedent, which included a reference by his Honour to other passages in White Industries but notably not to Spencer. As to that alternative basis, French CJ and Gummow J observed of s 17A's counterpart, 31A in Spencer, at [22]: The section authorises summary disposition of proceedings on a variety of bases under its general rubric. It will apply to the case in which the pleadings disclose no reasonable cause of action and their deficiency is incurable. It will include the case in which there is unanswerable or unanswered evidence of a fact fatal to the pleaded case and any case which might be propounded by permissible amendment. It will include the class of case in the longstanding category of cases which are "frivolous or vexatious or an abuse of process". The application of s 31A is not, in terms, limited to those categories. On a fair reading of the reasons for judgment in the court below, his Honour's reference to r 13.10 of the FMC Rules, though it evidences the error noted, appears to have been made in passing. So far as whether summarily to dismiss Mr Dobson's proceeding, his Honour appears to me to have approached that question as if the application for that order had been made in reliance on s 17A alone (see, in particular, para [10] and [11] and his Honour's use of the term, "no reasonable prospects" in para [43] of his reasons for judgment). Further, though his Honour did not, in terms, refer to Spencer, it is plain from another earlier authority to which he did refer apart from White Industries, Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 236 ALR 720 at [45], that he approached the determination of whether there was a reasonable prospect of success on the basis that, were there a factual controversy in relation to the proof of an element of the cause of action, the application was not one which ought summarily to be dismissed. I do not see any error in that. 42 The learned federal magistrate considered that the bases upon which Mr Dobson alleged that he had been subject to unlawful discrimination could be divided into two broad groups of what his Honour designated as complaints (individually identified as indicated parenthetically above). His Honour approached the question of whether he was satisfied that Mr Dobson had "no reasonable prospect of successfully prosecuting the proceeding" accordingly, stating, (reasons for judgment, at[27]): The first group are those where the applicant complains of a requirement to do something. The second group addresses a failure by the respondent to do something. There the applicant must successfully contend the failure can be converted into a requirement or condition which he is or was required to comply with. 43 Complaints 4, 5, 6 and 7 fell into what he Honour termed the "first group" (reasons for judgment, at [29]). His Honour recorded his understanding that, in argument, complaint 7 had been treated as a reformulation of complaint 6, "by changing it from a failure to a requirement". Mr Dobson makes no criticism of this understanding in his foreshadowed grounds of appeal. 44 In his pleading, Mr Dobson had alleged that his disability was a mental disability (Adjustment Disorder), first diagnosed in July 2009. The learned federal magistrate recognised that it was a necessary part of measuring prospects in a case such as the present to proceed by reference to the disability alleged. Having so done and with respect to complaints 4, 5, 6 and 7 his Honour stated (reasons for judgment, para [30]): The difficulty that the applicant suffers in prosecuting each of these complaints is that on the evidence as it presently stands there is nothing to demonstrate that any of the requirements were such that because of the applicant's adjustment disorder disability he did not or would not comply or is not able or would not be able to comply, with the requirements. It is to be expected that this matter would generally be addressed by medical evidence. There is simply none. In fact, if anything, the medical evidence that does exist is against the applicant on the point. For instance, Dr Field was consulted. He noted in his report that upon reviewing the applicant in respect of his fitness for a return to work in early 2010 following issues arising from the shift transfer issue, that the respondent had required the applicant to have a psychiatric clearance because of the danger of workplace violence or inappropriate behaviour. On the second page of his report, Dr Field stated: "My assessment of Mr Dobson is that he would be able to return to work at the present time..." [Emphasis in original] 45 His Honour's reference in the passage quoted to "on the evidence as it presently stands" is, in context, to be understood as a reference to taking Mr Dobson's case at its highest. The report of Dr Field to which his Honour refers in this passage is a report of that practitioner (a consultant psychiatrist) dated 1 February 2010, which Mr Dobson annexed (RPD 30) to an affidavit which he swore and filed in support of his application and at a time when he was legally represented. That report formed part of the evidence which Mr Dobson advanced. It was in this report that Dr Field opined that: (a) Mr Dobson suffered from, "an adjustment disorder due to stress in the workplace"; and (b) "[He] is fit to return to work and would be fit to perform his current role with or without any restrictions." The very medical evidence, that of Dr Field, upon which Mr Dobson relied was consistent with a conclusion to the contrary so far as these complaints were concerned. An inference that Mr Dobson was indeed able to comply with a requirement to undertake an assessment prior to his return to work was open from the fact, self evident from the attendances recorded and opinions expressed in Dr Field's report, that he was able to comply with the requirement. The learned federal magistrate's statement with respect to medical evidence that there was "simply none" is another way of saying that there was no medical evidence which, if accepted, would support a finding that the requirements particularised in complaints 4, 5, 6 and 7 could not have been complied with by Mr Dobson "because of the disability" (s 6(1)(b), DDA). There was indeed no such evidence. It was for Mr Dobson to adduce the same. If he had done this then a factual controversy would have existed such that it would not have been appropriate summarily to dismiss the proceeding under s 17A. 46 The learned federal magistrate observed of the "second group", complaints 1, 2, 3, 6, 8 and 9, that, "They were expressed as failures by the respondent to do certain things for the applicant." (reasons for judgment, para [34]). This was true of the way in which these complaints were originally pleaded. As to these, his Honour opined (reasons for judgment, para [35]), "A common and critical characteristic in issue in each instance in respect of these complaints is the question of whether each of the matters complained of were requirements or conditions that the applicant was required to comply with." His Honour assumed in favour of Mr Dobson that the reformulation of these complaints answered any objection to an absence of a pleaded "requirement". 47 Having so done, his Honour then looked to the content of Mr Dobson's evidentiary case in chief, or rather to what did not form part of that case. He stated (reasons for judgment, para [40] to [42]): 40. First, there is no evidence that the respondent required the applicant to remain employed subject to any such asserted requirement or condition. At the very least, the applicant would need to lead evidence that in respect of each of those matters he had some exchange with a representative of the respondent following which he reasonably concluded that it was the respondent's attitude and requirement or condition of his continued employment, that he continue under those conditions. There is no such evidence. Upon that ground alone those matters are not conditions or requirements for the purposes of s.6 and the application must fail. 41. In any event, paragraphs 6, 8 and 9 would fail because of an absence of material to address the requirement that the alleged requirement or condition could not be complied with by the respondent because of his disability. Accepting that his disability is the psychological disability which I have earlier described, the issue of not being able to comply with the requirement or condition because of the disability is also problematic. Take, for instance, the first re-expressed complaint in this category, that is, complaint 6. The requirement to remain employed without the respondent providing him assistance in the form of 48/52 purchased leave (4 weeks unpaid leave). I assume for this purpose that there is evidence that the employment continues subject to this requirement or condition. In that event, the question is whether he would not comply, was not able or would not be able to comply with the requirement or condition because of his disability. The matter is simply not addressed on the evidence. In fact, it could be inferred from a review of the medical reports that the opposite is indeed the case. 42. Concerning complaints 1, 2 and 3, those matters were touched upon in the medical evidence, which itself does not address the question to be answered. However, as it stands, the medical evidence does not assist the applicant on this point either. 48 Mr Dobson was indeed obliged to prove that Australia Post had made the alleged "requirements" of him. These were alleged by him to be continuing requirements ("remain employed"/"remain rostered"). There was no such evidence in Mr Dobson's case in chief. What followed at para [41] to [42] of his Honour's reasons for judgment were additional reasons why he considered that the "second group" of complaints had no reasonable prospect of success. His Honour was not mistaken in his assessment of Mr Dobson's evidentiary case in chief that it contained no evidence that he could not, because of his disability, comply with a requirement that he remain employed/rostered as alleged. 49 In Spencer at [22], set out above, French CJ and Gummow J observed that one of the types of case in which the power of summary dismissal conferred by a provision such as s 17A might be exercised was, "the case in which there is unanswerable or unanswered evidence of a fact fatal to the pleaded case and any case which might be propounded by permissible amendment". Another is where taking an applicant's evidence in chief at its very highest, there is no evidence of a fact which must be proved to establish the pleaded cause of action. It is not necessary, given the nature of the extension application made by Mr Dobson to conclude that that is this case, only that the learned magistrate's such conclusion is not attended with sufficient doubt to warrant the granting of an extension of time within which to seek leave to appeal. 50 After the learned federal magistrate had concluded that dismissal under s 17A was appropriate, Australia Post made an application for costs. Apart from the usual order that costs follow the event, which would have entailed an award of costs in its favour, taxed on a party and party basis, it also sought an order that its costs be taxed on an indemnity basis at least from 25 July 2011. In so doing it led evidence that there had been an offer of compromise made to Mr Dobson. As described by the learned federal magistrate (reasons for judgment at para [44]), the compromise offered was as follows: On 8 July 2011 [Australia Post] forwarded [to Mr Dobson] a letter which incorporated an offer of compromise prepared in accordance with the court rules. In particular, it provided that [Australia Post] would pay [Mr Dobson] the sum of $5,000.00 within seven days of acceptance of the offer, in settlement of his claim for damages and medical expenses as set out as an annexure to the application dated 30 May 2011 and costs, less any applicable taxation. 51 The learned federal magistrate referred to the discussion by Sheppard J in Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 (Colgate-Palmolive Co v Cussons) of principles which attend the awarding of costs, including indemnity costs and of categories of case in which costs so taxed might be awarded. Sheppard J was astute to state that the categories concerned were not exhaustive. The discussion in Colgate-Palmolive Co v Cussons is frequently cited with approval. As the learned federal magistrate correctly apprehended, one basis upon which an order for costs might be ordered to be taxed on an indemnity basis is an imprudent refusal of an offer of compromise. His Honour concluded that, in the circumstances of this case, Mr Dobson's refusal of the offer was imprudent. That was a conclusion reasonably open to him, or, at least, there is no sufficient doubt that such a conclusion was reasonably open. An extension of time within which to seek leave to appeal is not warranted in respect of the order for costs. 52 For these reasons, none of Mr Dobson's foreshadowed grounds of appeal raise a sufficient doubt as to the correctness of the order of dismissal to warrant an extension of time within which to apply for leave to appeal. It follows that his application must be dismissed. I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate: Dated: 11 April 2013