FEDERAL COURT OF AUSTRALIA Finch v The Heat Group (No 3) [2017] FCA 64 Appeal from: Application for leave to appeal: Finch v The Heat Group Pty Ltd (No 5) [2016] FCA 191 Application for extension of time and leave to appeal: Finch v The Heat Group Pty Ltd (No 6) [2016] FCA 390 File numbers: VID 243 of 2016 VID 457 of 2016 Judge: PAGONE J Date of judgment: 3 February 2017 Catchwords: PRACTICE AND PROCEDURE – Application for leave to appeal orders of a single Judge striking out a further amended statement of claim and security for costs and costs – whether Judge erred – consideration of judicial discretion PRACTICE AND PROCEDURE – Application for extension of time and leave to appeal costs orders of a single Judge – whether Judge erred – consideration of judicial discretion Legislation: Disability Discrimination Act 1992 (Cth) Equal Opportunity Act 1995 (Vic) Fair Work Act 2009 (Cth) Federal Court Act 1976 (Cth) Sex Discrimination Act 1984 (Cth) Trade Practices Act 1974 (Cth) Cases cited: Anthony v Chris Savage Pty Ltd [2003] NSWSC 698 Avetmiss Easy Pty Ltd v Australian Skills Qualification Authority [2014] FCA 507 Baltic Shipping Co v Dillon (1993) 176 CLR 344 Caason Investments Pty Ltd v Cao (No 2) (2015) 237 FCR 351 Construction, Forestry, Mining and Energy Union v Australian Competition and Consumer Commission (2016) 242 FCR 153 Cubillo v Commonwealth (2001) 112 FCR 455 Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 Deighton v Telstra Corporation Ltd [1997] FCA 1568 Finch v Heat Group Pty Ltd [2011] HCASL 117 Finch v The Heat Group Pty Ltd (Anti-Discrimination) [2010] VCAT 802 Finch v The Heat Group Pty Ltd (No 2) [2016] FCA 791 Finch v The Heat Group Pty Ltd (No 4) [2015] FCA 1450 Finch v The Heat Group Pty Ltd (No 5) [2016] FCA 191 Finch v The Heat Group Pty Ltd (No 6) [2016] FCA 390 Finch v The Heat Group Pty Ltd (No 4) [2015] FCA 1450 Finch v The Heat Group Pty Ltd (Unreported, Victorian Civil and Administrative Tribunal, Harbison VP, 31 January 2011) Finch v The Heat Group Pty Ltd [2010] VSCA 256 Finch v The Heat Group Pty Ltd [2011] FWA 4462 Finch v The Heat Group Pty Ltd [2011] FWAFB 6729 Finch v The Heat Group Pty Ltd [2011] HCATrans 111 Finch v The Heat Group Pty Ltd [2011] VSCA 100 Finch v The Heat Group Pty Ltd [2016] FCA 315 Ford v La Forest [2002] 2 Qd R 44 Gallo v Dawson (1990) 93 ALR 479 House v The King (1936) 55 CLR Margan v Australian Human Rights Commission [2013] FCA 612 Niemann v Electronic Industries Ltd [1978] VR 431 Sharman License Holdings Ltd v Universal Music Australia Pty Ltd [2005] FCA 802 State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In Liq) (1999) 160 ALR 588 SZAJB v Minister for Immigration and Citizenship (2008) 168 FCR SZUGQ v Minister for Immigration and Border Protection [2016] FCA 213 Date of hearing: 14 September 2016 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 41 Counsel for the Applicant: The applicant appeared in person Counsel for the Respondents: Mr M Felman Solicitor for the Respondents: Minter Ellison REASONS FOR JUDGMENT VID 243 of 2016 VID 457 of 2016 BETWEEN: JO-ANNE FINCH Applicant AND: THE HEAT GROUP PTY LTD (ACN 092 941 430) First Respondent GILLIAN FRANKLIN Second Respondent PETER KADLECIK (and others named in the Schedule) Third Respondent JUDGE: PAGONE J 1 Ms Finch has made two applications in the Court's appellate jurisdiction. The first (VID 243 of 2016) was for leave to appeal from the orders made by Jessup J on 4 March 2016 in Finch v The Heat Group Pty Ltd (No 5) [2016] FCA 191. The second (VID 457 of 2016) was an application for extension of time and for leave to appeal from the orders made by Jessup J on 20 April 2016 in Finch v The Heat Group Pty Ltd (No 6) [2016] FCA 390. His Honour's orders dated 4 March 2016 were made on applications made by the respondents seeking (a) to strike out a further amended statement of claim by Ms Finch, (b) security for costs pursuant to s 56(1) of the Federal Court Act 1976 (Cth) ("the Federal Court Act"), and (c) costs. His Honour's orders on 20 April 2016 were concerned with the costs which the respondents claimed against Ms Finch. 2 The dispute in this Court between Ms Finch and the respondents has a lengthy history which has been recounted in other reasons for decision: see, for example, Finch v The Heat Group Pty Ltd (Anti-Discrimination) [2010] VCAT 802; and Finch v The Heat Group Pty Ltd (No 5) [2016] FCA 191. Ms Finch had been employed as the Victorian Territory Manager with The Heat Group Pty Ltd for a number of years. On 29 October 2008 Ms Finch complained to the Victorian Civil and Administrative Tribunal ("VCAT") that five of the six respondents to proceedings subsequently commenced in the Federal Court had contravened various provisions of the Equal Opportunity Act 1995 (Vic). That complaint was dismissed by Harbison VP in VCAT on 29 June 2010: Finch v The Heat Group Pty Ltd (Anti-Discrimination) [2010] VCAT 802. In November 2010 VCAT heard an application by the respondents for Ms Finch to pay their costs of the VCAT proceedings and on 31 January 2011 VCAT ordered that Ms Finch pay two thirds of the respondents' taxed costs on County Court Scale D: Finch v The Heat Group Pty Ltd (Unreported, Victorian Civil and Administrative Tribunal, Harbison VP, 31 January 2011). On 5 October 2010 the Court of Appeal of the Supreme Court of Victoria refused an application by Ms Finch for leave to appeal the decision of VCAT: Finch v The Heat Group Pty Ltd [2010] VSCA 256. On 9 June 2011 the High Court dismissed an application by Ms Finch for special leave to appeal the decision of the Court of Appeal: Finch v Heat Group Pty Ltd [2011] HCASL 117. Ms Finch was also unsuccessful in her attempts to appeal the orders of VCAT that she pay part of the respondents' costs. On 8 April 2011 the Court of Appeal dismissed her application for leave to appeal the VCAT costs orders but ordered that they be stayed for a period of 28 days: Finch v The Heat Group Pty Ltd [2011] VSCA 100, [25]. On 29 April 2011 the High Court dismissed the application by Ms Finch for special leave to appeal the decision against her on costs: Finch v The Heat Group Pty Ltd [2011] HCATrans 111 (Hayne J ex tempore). On 9 June 2011 the High Court dismissed an application by Ms Finch to extend the stay of the orders that she pay the costs which had been awarded against her: Finch v Heat Group Pty Ltd [2011] HCASL 117. 3 In May 2011 Ms Finch filed a general protections application with Fair Work Australia under Part 3-1 of the Fair Work Act 2009 (Cth) in respect of her dismissal from employment with The Heat Group Pty Ltd. Her application was filed after the 60 day time period prescribed by the Fair Work Act 2009 (Cth), and on 13 July 2011 the Fair Work Australia dismissed an application by Ms Finch for an extension of time in which to file her general protections application: Finch v The Heat Group Pty Ltd [2011] FWA 4462. On 29 September 2011 the Full Bench of the Fair Work Commission dismissed an application by Ms Finch for permission to appeal from the Fair Work Commission decision: Finch v The Heat Group Pty Ltd [2011] FWAFB 6729. On 1 March 2012 Ms Finch filed a complaint with the Australian Human Rights Commission alleging discrimination and victimisation in breach of the Sex Discrimination Act 1984 (Cth) and the Disability Discrimination Act 1992 (Cth) ("the Disability Discrimination Act"). On 24 October 2012 the Australian Human Rights Commission terminated her complaint and issued Ms Finch with a referral certificate allowing her to prosecute claims under the Disability Discrimination Act. 4 The proceedings in this Court were commenced on 21 September 2012 by application accompanied by a statement of claim containing claims under the Trade Practices Act 1974 (Cth) ("the Trade Practices Act"). The proceeding was listed for directions before Jessup J as the docket judge on 2 November 2012. On 30 October 2012 Ms Finch wrote to the solicitors for the respondents, Minter Ellison, informing them, amongst other things, that she intended to amend the Federal Court proceedings to include allegations that she had made in her complaint to the Australian Human Rights Commission and requested an adjournment of the directions hearing. The solicitors for the respondents replied on the following day (31 October 2012) that they did not consent to the adjournment but expressed the views that the statement of claim by Ms Finch did not comply with the rules for pleadings and that the statement of claim was seriously defective. The parties attended the directions hearing on 2 November 2012 and Jessup J gave Ms Finch leave to amend her originating application and her statement of claim by 24 December 2012. On 20 December 2012 J Kotsifas & Associates informed Minter Ellison of their commencement to act on behalf of Ms Finch and requested the respondents' agreement for an extension of time in which to file an amended originating application and an amended statement of claim which had then been due on 24 December 2012. Consent orders were made by his Honour on 20 December 2012 giving Ms Finch leave to file and serve an amended originating application and an amended statement of claim by 4 February 2013. On 4 February 2013 J Kotsifas & Associates wrote to Minter Ellison requesting a further extension of time in which to file the amended originating application and the amended statement of claim. Minter Ellison responded on the same day stating that they did not oppose the request for a further extension but that it was a matter for the Court whether or not to grant the request. A directions hearing was held on 8 March 2013 at which the parties (including Ms Finch) were represented by counsel and instructing solicitors. Counsel who appeared for Ms Finch on that occasion frankly conceded that the statement of claim as filed purported to reagitate, or sought to reagitate, matters that had clearly been the subject of adverse findings against Ms Finch by VCAT. On that occasion Jessup J gave leave for Ms Finch to file an amended originating application and an amended statement of claim by 19 April 2013. His Honour also ordered that any application by the respondents for the early termination of the proceedings, or to strike out any part of the amended statement of claim, was to be filed by 3 May 2013. 5 On 19 April 2013 Ms Finch, rather than J Kotsifas & Associates (who were then still recorded as her lawyers on the Federal Court record in the proceeding), served upon Minter Ellison an amended originating application dated 19 April 2013 and an amended statement of claim also bearing that date. The amended statement of claim was 93 pages in length and was stated to have been drafted by Mr Bush Ndiege who was described in an affidavit as a law student and the husband of Ms Finch. 6 On 3 May 2013 the respondents filed an interlocutory application seeking orders to strike out the amended statement of claim. It is not necessary for present purposes to recount all of the steps which occurred between 3 May 2013 (including the stay of the proceedings because of Ms Finch's ill-health) and 25 July 2014. On 25 July 2014, however, Jessup J ordered by consent that Ms Finch file and serve a further amended statement of claim by 29 August 2014. That order was not complied with but on 3 October 2014 Ms Finch served a further amended statement of claim by email. On 28 November 2014 the respondents filed an interlocutory application seeking (a) to strike out the further amended statement of claim, (b) security for costs, and (c) costs. That application came to be heard on 14 December 2015 but was preceded by an unsuccessful application by Ms Finch that Jessup J recuse himself from hearing the proceeding: Finch v The Heat Group Pty Ltd (No 4) [2015] FCA 1450. His Honour proceeded to consider the applications by the respondents and decided them on 4 March 2016 and 20 April 2016. 7 The present subsequent application by Ms Finch for leave to appeal his Honour's decision dated 4 March 2016 was to be heard on 4 May 2016. It could not be heard on that day, however, and both it and the subsequent application for an extension of time and leave to appeal his Honour's cost orders of 20 April 2016 were delayed until other interlocutory matters were heard and determined: see Finch v The Heat Group Pty Ltd [2016] FCA 315; and Finch v The Heat Group Pty Ltd (No 2) [2016] FCA 791. The two applications by Ms Finch from his Honour's orders of 4 March 2016 and 20 April 2016 came ultimately to be heard on 14 September 2016 but on that day their hearing was preceded by other applications by Ms Finch. The first was an application by Ms Finch for an adjournment relying upon various matters. One of the matters relied upon by Ms Finch for an adjournment was that she had made a number of complaints to other bodies about the legal practitioners appearing for the respondents, and Ms Finch submitted that her complaints to the other bodies ought to be determined by those other bodies before the Court should allow the respondents to be heard with the benefit of those representatives. The essence of that submission was much the same as the application which Ms Finch had previously made to prevent the respondents' lawyers from continuing to act for the respondents in these proceedings which had been rejected in Finch v The Heat Group Pty Ltd (No 2) [2016] FCA 791. A second basis for the adjournment application was that Ms Finch had unsuccessfully sought to issue subpoenas in aid of her applications and Ms Finch submitted that the hearing should be adjourned because at the date of the hearing she still had 21 days within which to appeal the decision of the Registrar refusing her applications for subpoenas. The third basis for the adjournment application was that she had made a complaint to the Chief Justice of the Federal Court which had only been rejected by his Honour on the Friday preceding the day of the hearing and that she might wish to appeal from the failure by the Chief Justice to accede to her complaint. The application for an adjournment was rejected for the reasons given orally at the hearing being to the effect that the complaints against the practitioners had effectively been determined against her and that the other matters raised by Ms Finch were not relevant to the questions in the applications for leave to appeal and for the extension of time and leave to appeal. Ms Finch then made a recusal application relying, amongst other matters, upon the adverse decision on her application for adjournment. That recusal application was also rejected for the reasons given orally at the hearing. Ms Finch next sought to file an amended application for leave to appeal which was opposed and was rejected for the reasons given orally at the hearing. The document sought to be filed by Ms Finch in large part sought to incorporate written submissions into the text of parts of her then extant application for leave to appeal as filed. Ms Finch, however, was permitted to make oral submissions and in large part appeared to read from the document which she had unsuccessfully sought to file in substitution for her amended application for leave to appeal. Ms Finch was not legally represented at the hearing but was assisted at the bar table by her husband and was articulate in the forceful presentation of her case. 8 The first of the applications by Ms Finch that needs to be considered is her application for leave to appeal the orders made by Jessup J on 4 March 2016 in Finch v The Heat Group Pty Ltd (No 5) [2016] FCA 191. Ms Finch needed leave to appeal those orders because they were interlocutory in nature as they did not decide the merits of the underlying dispute: see Federal Court Act, s 24(1A); Avetmiss Easy Pty Ltd v Australian Skills Qualification Authority [2014] FCA 507, [4]; and Cubillo v Commonwealth (2001) 112 FCR 455, [182]. 9 On 4 March 2016 Jessup J made the following orders: 1. The Further Amended Statement of Claim filed on 7 October 2014 be struck out. 2. The applicant have leave to file and serve, within 21 days, a Second Further Amended Statement of Claim confined to the allegation that the termination of her employment by the first respondent was done in contravention of the Disability Discrimination Act 1992 (Cth). 3. If the applicant does file and serve a Second Further Amended Statement of Claim conformably with Order 2 above, she also file and serve, at the same time, a Further Amended Originating Application confined to a claim based on the allegation referred to in that order. 4. Other than as provided for in Orders 2 and 3 above, the proceeding be dismissed. 5. If the applicant does not file and serve a Second Further Amended Statement of Claim and a Further Amended Originating Application conformably with Orders 2 and 3 above, the proceeding thereupon be dismissed. 6. Within 28 days, the applicant provide security for the respondents' costs of the proceeding – (a) in the sum of $25,000; and (b) in a form acceptable to the Chief Executive Officer of the Federal Circuit Court of Australia. 7. If security is not provided conformably with Order 6 above, the proceeding thereupon be dismissed. 8. With respect to the relief sought in para 7 of the respondents' Interlocutory Application filed on 28 November 2014, the parties file and serve in this court written submissions as follows: (a) the applicant, within 21 days; (b) the respondents' in reply, if necessary, within a further seven days. 9. With respect to the costs of – (a) so much of the proceeding as is dismissed pursuant to Order 4 above; and (b) the respondents' Interlocutory Application filed on 28 November 2014; the parties file and serve in this court written submissions as follows: (i) the respondents, within seven days; (ii) the applicant, within a further 14 days; (iii) the respondents in reply, if necessary, within a further seven days. 10. If the proceeding is dismissed under Order 5 or Order 7 above, the parties file and serve in this court written submissions as to the costs of the proceeding, as follows: (a) the respondents, within seven days after the dismissal of the proceeding; (b) the applicant, within a further 14 days; (c) the respondents in reply, if necessary, within a further seven days. 11. Subject to the following order, the proceeding be transferred to the Federal Circuit Court of Australia. 12. Pursuant to s 32AB(7) of the Federal Court of Australia Act 1976 (Cth): (a) subject to Order 6 above, all questions as to the costs of the proceeding while it was pending in this court, including the consideration and determination of matters arising under Orders 8, 9 and 10 above, be dealt with in this court; (b) upon the transfer of the proceeding to the Federal Circuit Court of Australia, Orders 2, 3, 5, 6, and 7 above thereafter stand as orders of that court; (c) subject to the orders made this day, the future conduct of the proceeding be in accordance with the orders and directions given by the Federal Circuit Court of Australia. Order 5 provided for the dismissal of the proceedings unless Ms Finch complied with orders 2 and 3 in the times provided by those orders. The effect of order 5 was varied on 24 March 2016 on an interlocutory application made by Ms Finch as follows (see Finch v The Heat Group Pty Ltd [2016] FCA 315): 1. Order 5 of the orders made by Jessup J on 4 March 2016 be amended by deleting the word "thereupon" in the last line and adding to it the words "at the hearing of the application for leave to appeal, unless otherwise ordered,". 2. The application otherwise be dismissed. The benefit to Ms Finch by the variation made on 24 March 2016 to the orders made by Jessup J was subsequently extended on 14 September 2016 until the final determination of the application by Ms Finch for leave to appeal. 10 An effect of the orders which Ms Finch seeks leave to appeal is, by order 4, to dismiss her proceeding except to the extent that his Honour gave Ms Finch leave to file and serve, within a specified time, an amended statement of claim confined to the allegations made by her that the termination of her employment by the first respondent was done in contravention of the Disability Discrimination Act. The application by Ms Finch for leave to appeal is not a hearing of the appeal itself, but it is relevant in considering whether to grant leave to appeal to consider the merits of a possible appeal and whether substantial injustice would result if leave to appeal were refused supposing the judgment below to be wrong. In Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 the Full Court endorsed the test in Niemann v Electronic Industries Ltd [1978] VR 431 as that normally to be applied in determining whether leave to appeal from an interlocutory decision should be granted. The formula laid down in Niemann was described by the Full Court in Décor Corporation at 398-399 as involving two tests: The first test, which relates to the prospects of the proposed appeal, is "whether, in all the circumstances, the decision is attended with sufficient doubt to warrant its being reconsidered by the Full Court". The second "is whether substantial injustice would result if leave were refused, supposing the decision to be wrong. … In my opinion, the sufficiency of the doubt in respect of the decision and the question of substantial injustice should not be isolated in separate compartments. They bear upon each other, so that the degree of doubt which is sufficient in one case may be different from that required in another. Ultimately, a discretion must be exercised on what may be a fine balancing of considerations." The Full Court went on to note at 400 that an important distinction was to be observed, when a court comes to exercise its discretion, between common interlocutory decisions on a point of practice and an interlocutory decision determining a substantive right. At 400 the Court observed that "leave will more readily be granted" in the latter than in the former. 11 Ms Finch relied upon nine grounds in her application for leave to appeal the orders of Jessup J made on 4 March 2016. The first of the grounds was stated as follows: The docket Judge erred by demonstrating apprehended bias and procedural unfairness. These are particularised in the draft notice of appeal in the form of declining to recuse himself from the proceedings via order made on 14 December 2015, further declining to hear a second recusal application against him. Disallowing the applicant to tender evidence in an open court and make submission in evidence. Disallowing the applicant for the third time to make a restraint application against the respondent solicitors on the same day and by further failure to publish orders and judgements to orders made. The ground was said to be particularised in the draft notice of appeal which contained a number of grounds of appeal based upon complaints that his Honour had demonstrated apprehended bias, procedural unfairness and a refusal to recuse himself. The particulars to ground 1 in the proposed notice of appeal contained the following: 1. The docket Judge erred by demonstrating apprehended bias and procedural unfairness 1.1 The docket Judge erred by declining to recuse himself from the proceedings via order made on 14 December 2015, by reason of: Particulars 1.1.1 failing to consider, or adequately consider apprehended bias, by reason of, the consideration is inconsistent with the test of apprehended bias to be applied and the views of the fair-minded observer considered as there is no intention by law to provide a threshold that must be met, neither is there a requirement that a substantiative proceeding has to be complete before dealing with such complaints; 1.1.2 failing to consider a pre-judgment of the Appellant's credibility and character; 1.1.3 failing to disclose the association between himself and Mr Richard West, the partner of the Respondents law firm heading up the defence to the Appellant's claims; 1.1.4 failing to consider the public declaration made by the Respondents' counsel on 5 February 2015, that it was counsel's understanding his Honour wanted a terminal end to the Appellant's claims, and thus Respondents counsel's views his Honour had descended into the arena and assumed 'the robe of an advocate' for the Respondents; 1.1.5 disallowing the Appellant to make a second recusal application 1.2. Disallowing the Appellant to tender evidence in an open court to support her closing Submission in a security of cost application. Thereafter refusing to consider the Appellant closing submission made in an affidavit into her income. 1.3 Disallowing the Appellant for the third time to make a restraint application against the Respondent solicitors 1.4. Disallowing the Appellant when making a contempt of court Appellant against the respondent solicitors for presenting incorrect and misleading document to support their strike out application 1.5. The docket Judge erred by failing to publish full and proper reasons for the order made on 4 December 2015 and 4 March 2016, as to the Appellant's recusal application made via Interlocutory Application dated 19 April 2015, and Amended Interlocutory Application dated 24 June 2015, by reason of: Particulars 1.5.1 by failing to consider and to mention even in one instance the material and defence relied upon by the Appellant in the order and reasons given on the 4 March 2016 1.5.2 The docket Judge erred by; not making orders and publishing full and proper reasons, and demonstrating actual bias, for the following determinations/decisions made on: (a) 5 February 2015, the refusal of: (i) the Appellant's adjournment; and (ii) restraint application; and further (iii) the continuing to hear the Respondents Interlocutory Applications dated 28 November 2014 despite the Appellant's objections; (b) 18 August 2015, the refusal of: (i) the Appellant's adjournment; and (ii) transferring of the Appellant's Interlocutory Application dated 19 April 2015 and then Amended Interlocutory Application dated 24 June 2015, to an alternate justice of the Court to be heard and determined; (c) 9 October 2015, ordering costs against the Respondents for their failed abuse of process application dated 28 November 2014; (d) 11 November 2015, the granting of leave to cease acting, to the Appellant's legal representative, Mr. Allan McMonnies; (e) 11 and 23 November 2015, the refusal to accept the Appellant's Amended Interlocutory Application dated 24 June 2015, for filing, notwithstanding; the Appellant had previously filed it, The docket Judge had permitted leave to file it, The docket Judge and the parties had relied upon it via a hearing on 18 August 2015, and it was evident the Appellant had instructed it be filed a second time however the Appellant's legal representative, Mr. McMonnies had for one reason or another not filed it; (f) 4 December 2015, sending an email, being an informal, unauthenticated, and thus non legally binding document, in response to the Appellant's recusal application made via Interlocutory Application dated 19 April 2015, and Amended Interlocutory Application dated 24 June 2015, advising his Honour did not propose to recuse himself, and thus disallowing the Appellant's right of review/appeal/seek legal advice/representation prior to the upcoming hearing on 14 December 2015, and consequently diminishing the Appellant's right of review/appeal, or ability to seek legal advice, and prior to the upcoming hearing on 14 December 2015; and thereafter (g) 14 December 2015: (i) the refusal of: a. the Appellant's adjournment application until such time as an order was made and full and proper reasons published as to her recusal application; b. the Appellant's standing down of the hearing application until such time as she was permitted her right of review/appeal; and thereafter (ii) the refusal to allow: a. the Appellant to file and thus be heard upon, her Interlocutory Application dated 14 December 2015 (of which included a second recusal application); b. the Appellant to give submissions and evidence in defence to the Respondents Interlocutory Applications dated 28 November 2014; and (iii) the further hearing of, and determination of, the Respondents three (3) Interlocutory Applications. Ms Finch elaborated upon this ground in oral submissions at the hearing of her application. 12 Nothing in the application for leave to appeal provides any basis to suppose that his Honour's decision of 4 March 2016 was incorrect by reason of any of the matters in the first ground relied upon by Ms Finch in the application for leave to appeal. It is true that Ms Finch sought that his Honour recuse himself and that his Honour did not do so. On 19 April 2015 Ms Finch sought relief by interlocutory application that Jessup J recuse himself from presiding over the proceeding, and for present purposes it may be assumed in her favour that she made more than one application to that effect. The application by Ms Finch made on 19 April 2015 was supported by an affidavit sworn on 15 April 2015 and was refused by his Honour on 14 December 2015 in Finch v The Heat Group Pty Ltd (No 4) [2015] FCA 1450. Ms Finch did not seek leave to appeal from that decision nor gave any explanation for why she did not seek leave to appeal that decision within the time provided by the Federal Court Rules 2011 (Cth) ("the Rules"). More importantly, however, there is no foundation in any of the materials in the application currently to be determined which in any way suggests that his Honour's refusal of her application was wrong. It can also be accepted that Ms Finch sought on other occasions for his Honour to recuse himself, but her application that his Honour recuse himself had been determined against Ms Finch and nothing has been shown to indicate error in his Honour's continuing to hear the proceeding, and no application was made by Ms Finch at the time when she contended that she had made recusal applications that had either been rejected without reasons or which Ms Finch claimed had not been considered by his Honour. 13 The second ground relied upon by Ms Finch in her application for leave to appeal is related to the first ground but was expressed primarily as a failure by his Honour to conduct the hearing in accordance with the principles of natural justice in light of Ms Finch being a self-represented litigant. The second ground in Ms Finch's application was stated as follows: The docket Judge erred by Not Abiding by the obligation in law to conduct the hearing in accordance with the principles of natural justice particularly as the Appellant was a self-represented litigant. The docket Judge had a duty to conduct the trial in a manner that was even handed and fair. He had a duty to ensure that a reasonable person would not form the view that the docket Judge was acting in a manner that could give rise to a reasonable apprehension of bias towards the Appellant. The finding on apprehended bias would therefore be enough to have the matter remitted back for a review also. (Footnotes omitted.) The proposed notice of appeal contained particulars relating to this ground as follows: 2 The docket Judge erred by Not Abiding by the obligation in law to conduct the hearing in accordance with the principles of natural justice particularly as the Appellant was a self-represented litigant. 2.1 The docket Judge had a duty to conduct the trial in a manner that was even handed and fair. He had a duty to ensure that a reasonable person would not form the view that the docket Judge was acting in a manner that could give rise to a reasonable apprehension of bias towards the Appellant. The finding on apprehended bias would therefore be enough to have the matter remitted back for a review also. Particulars 2.1.1 Allowing applications in circumstances where Court rules were breached, it was not in the interests of justice and the rule of law, and further demonstrating bias and procedural unfairness – February to December 2015 (a) the docket Judge erred in accepting three (3) of the Respondents Interlocutory Applications dated 28 November 2014 (abuse of process, wasted/lost costs and security for costs), that were demonstrated to be lengthy, tendentious, embarrassing and vexatious and subsequently thereafter hearing the applications, on 5 February 2015, 18 August 2015 and 14 December 2015, by reason of: (i) the Respondents had not complied with rule 16.32 of the Federal Court Rules 2011 (Cth), which stipulated a defence to the Appellant's claims must be filed by 19 October 2012, and therefore were in default/contempt of Court from such time, and further pursuant to rule 16.12 of the Federal Court Rules 2011 (Cth), by the failure to not file a defence, and no relevant order being made, the Respondents defence to the Appellant's claims, was thus closed; (ii) the Respondents applications relied upon three (3) misleading and deceptive documents that the Respondents had previously relied upon via an application dated 13 May 2013, and of which had, on both occasions, been pointed out to The docket Judge; and (iii) the Appellant had sought a restraint application on 5 February 2015, of which the docket Judge had declined to hear. His Honour unduly interfered with the conduct of the hearing of the case and failed to permit the Appellant to make submissions on matters that he intended to make rulings upon. When a party makes an application, the docket Judge must normally give the party some reasonable opportunity to make submissions in support of that application. This is so even if the docket Judge's preliminary view is that the application will be unmeritorious. If the docket Judge refuses an application before receiving any submissions, the impression created is putting the Appellant request under sufferance. (Footnotes omitted.) Nothing in the material filed by Ms Finch in support of the second ground of appeal casts doubt upon the correctness of his Honour's decision made on 4 March 2016. His Honour considered the applications and decided them in the exercise of the Court's discretion. None of the material indicates a failure by his Honour to afford Ms Finch any opportunity to present her case. 14 The fundamental issue before his Honour had been whether the proceeding which Ms Finch sought to maintain in the Federal Court was an abuse of process to the extent that it sought to relitigate matters which had been decided in the VCAT proceeding in light of a statement of claim that was alleged to be defective. The procedural history to the application by the respondents to strike out the statement of claim traversed a significant period of time and revealed failures by Ms Finch to comply with orders which had been made by his Honour. As stated above, counsel appearing for Ms Finch at the directions hearing before his Honour on 8 March 2013 had frankly conceded that the statement of claim in its then current form was not maintainable. His Honour gave leave on that day for Ms Finch to file and serve by 19 April 2013 an amended originating application and an amended statement of claim but that order was not complied with. Additional time was given to Ms Finch by his Honour to file and serve amended pleadings and the time allowed to Ms Finch took into account, and included, a period of time when the health of Ms Finch made it impossible for her to undertake the further conduct of her case. The further amended statement of claim which the respondents sought to strike out by their application on 28 November 2014 was the amended statement of claim which had been filed by Ms Finch on 3 October 2014. His Honour considered the pleadings as relied upon by Ms Finch and found them to be, in their third attempt over a substantial period of time, not in a form that should be permitted to go to trial and to contain claims based upon circumstances which had been determined against Ms Finch in other proceedings which she had brought against all but one of the respondents in the Federal Court proceedings. To this could be added that at no stage since the time when the respondents made their application to strike out her application and statement of claim had Ms Finch ever produced a proposed new pleading which did not have the defects of the application and pleading considered by his Honour. 15 The third ground in the application by Ms Finch for leave to appeal also overlaps with the matters in the previous two grounds. Ground 3 was expressed as follows: The Docket Judge Erred by The Failure to Consider the Appellant's Submissions and Evidence, Demonstrating Bias and Procedural Unfairness in breach of the Evidence Act or otherwise. The docket Judge erred by failing to consider the Appellant's evidence and submissions in defence to the Respondents applications particularised in the draft notice of appeal in breach of the s 142 Evidence Act 1995 (Cth) The matters relevant to this ground in the proposed notice of appeal are: 3. The Docket Judge Erred by The Failure to Consider the Appellant's Submissions and Evidence, Demonstrating Bias and Procedural Unfairness in breach of the Evidence Act or otherwise 3.1 The docket Judge erred by failing to consider the Appellant's evidence and submissions in defence to the Respondents applications. Particulars 3.1.1. The docket Judge did not make a single reference to the Appellant's submissions and evidence that she relied upon, and made no reference to steps taken on the reasoning as to the Judgement: (a) Finch affidavit and Outline of Submissions - 26 July 2013; (b) Finch affidavit and Outline of Submissions - 29 November 2013; (c) Finch affidavit - 24 December 2014 (d) Finch affidavit - 4 February 2015. (e) Finch Outline of Submissions - 4 February 2015 (f) Finch affidavit - 14 December 2015; (g) Finch Schedule of Causes of Action, Contingent and Limitation of Statute requirement. 3.1.2. On the counts of (a) to (g) of evidence and submissions, The docket Judge failed to consider any of these in his steps to coming to the decision arrived at for the applications made by the Respondents for security of cost and also for the application made by the Appellant for restraint and recusal application. 3.2 The Evidence and Factual Findings 3.2.1 The docket Judge erred in law in taking an approach to the evidence and fact finding which: (a) did not give any proper regard to section 140(2) of the Evidence Act 1995 (EA); (b) was wrong, unreasonable or perverse in rejecting unchallenged evidence in the particular circumstances the case, being evidence which was not inherently incredible or improbable; (c ) contrary to the established approach on the hearing of summary applications, failed to take the appellant's case at its highest and speculated that no evidence could or would be led at trial which would support or corroborate the appellant's evidence which he otherwise never considered or failed to state otherwise; and (d) involved the drawing of inferences that were not open as they were the product of conjecture and speculation. 3.3 None, or Insufficient, Evidence for Findings 3.3.1 In the circumstances of a summary application and having regard to section 140(2) of the EA, there was no or no sufficient evidence upon which the docket Judge could find( schedules of finding to be made in submissions 3.4 Unreasonable Rejection of Evidence 3.4.1 In the circumstances of a summary application and having regard to section 140(2) of the EA, the primary judgment erred in rejecting unchallenged evidence without a proper basis to do so, ( a series of discrete findings without evidence to be scheduled in submissions) The ground that his Honour's reasons did not refer to all of the submissions and evidence of Ms Finch does not cast doubt upon his Honour's decision or upon his Honour's exercise of the discretion. His Honour was not required to refer to all of Ms Finch's submissions and evidence when making his decision and in publishing his reasons. The first application before his Honour required his Honour to consider whether the proceeding should be dismissed by reference to the application and statement of claim as relied upon by Ms Finch. His Honour dealt with the application on that basis and gave reasons for dismissing the proceeding to the extent that his Honour dismissed it. His Honour was not required to deal with other matters relied upon by Ms Finch that his Honour did not consider to bear upon the matter he had to determine: see State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In Liq) (1999) 160 ALR 588, [90]. To that might be added that none of the matters in the grounds of the application by Ms Finch, or in the proposed notice of appeal, point to any error in the decision made by his Honour. It may, in other words, be accepted as claimed by Ms Finch that his Honour "did not make a single reference" to Ms Finch's submissions, or made no reference to steps taken in any of the affidavits mentioned in, for example, paragraph 3.1.1 of the proposed notice of appeal, but his Honour's not referring to any of the steps revealed no error in the decision or in the exercise of discretion. 16 The fourth ground in the application by Ms Finch for leave to appeal was directed to the effect of the orders which his Honour had made. Ground 4 was expressed as follows: The Docket Judge Erred When Entering into Orders that Could Not Be Complied With otherwise prejudicing the Appellant's statutory rights of review and making unjust self-executing orders in circumstances when it was not in accordance with the dispensation of justice and against a self-represented litigant to do so. The draft notice of appeal relevantly stated: 4 The Docket Judge Erred When Entering in to Orders That Could Not Be Complied With 4.1 The docket Judge erred by entering into orders that could not be complied with without prejudicing the Appellant's statutory rights and making unjust self executing orders. Particulars 4.1.1 The orders of the 4 March 2016, do not allow the Appellant's statutory right of review to make an appeal in that time frame and be heard for a stay application. 4.1.2 The orders are self executing and the Appellant's rights are exhausted by none compliance, there is no allowance of proper cause otherwise that could be demonstrated by the Appellant or subject to further orders. The orders infringe the Appellant rights to review. 4.1.3 The orders are not reviewable in as far as they have been transferred to the Court below. The Federal Circuit Court cannot dispense the authority of a superior Court and therefore any orders that require extension or varying is frozen. 4.1.4 The orders otherwise were self executing without allowing or enabling the Appellant to exercise statutory rights of review. There is nothing in the terms of the orders made by his Honour, and Ms Finch did not otherwise show by relevant evidence, that the orders made by his Honour were incapable of being complied with or had otherwise prejudiced her statutory rights of review. One of the orders made by his Honour on 4 March 2016 was that Ms Finch provide security for costs in the amount of $25,000. There is nothing about that order that was incapable of compliance and, indeed, Ms Finch has provided the security which his Honour ordered. 17 The orders made by his Honour were in fact amended, as mentioned above, on a successful application by Ms Finch to defer the effect of order 5 until the hearing of her application for leave to appeal or until otherwise ordered. That order was extended at the hearing of her application for leave to appeal so that order 5 made by his Honour's order will not take effect before this decision on her application for leave to appeal. The reason for the variation of his Honour's order was not that the order his Honour had made was incapable of compliance but to accommodate Ms Finch's submission that she should not be required to comply with orders 2 and 3 until she had been given the opportunity to have heard her application for leave to appeal his Honour's decision. Her argument had been that she should not be required to incur the expense and to employ the time required to comply with orders 2 and 3 of his Honour's orders before it was known whether she was successful in her application for leave to appeal because she would have been put to an unnecessary burden if she were to succeed on her appeal. On 24 March 2016 order 5 was varied to defer its effect which would otherwise have required Ms Finch to file and serve documents before her application for leave to appeal had been heard. Ms Finch has not complied with orders 2 and 3 but the effect of dismissal of her proceeding will not take effect until this application for leave has been determined or further order. The orders themselves, however, were not incapable of being complied with nor are they inconsistent with her rights of appeal or, to use her word, of review. 18 A more direct challenge to his Honour's decision was raised by the fifth ground of appeal in the application by Ms Finch for leave to appeal. Her fifth ground was expressed as follows: The docket Judge erred by finding that the various causes of action in the Appellant's Further Amended Statement of Claim are statute barred and an abuse of process as particularised in the draft notice of appeal where such errors were made without testing of evidence which would have lead the Judge into a different decision. The judge also was misled into the use of incorrect document by the respondent representative in making out their claim against the abuse of process resulting in a possible mistrial to that effect. This ground was the subject of paragraph 5 in the draft notice of appeal which stated: 5 The Docket Judge Erred With Findings As to Causes of Action 5.1 The docket Judge erred by finding that the various causes of action in the Appellant's Further Amended Statement of Claim are statute barred and an abuse of process. Particulars 5.1.1 The docket Judge made an error in determination of when causes of action accrue in negligence and tort. The law stipulate that causes of action do not accrue until damages can be ascertained. The Appellant submit that on this premise all these causes of action were not statute barred. 5.1.2 The docket Judge erred in finding that discoverability was in September 2009 without testing evidence as stated in the test of discoverability with qualifying evidence there was no knowing of when the Appellant actually discovered she had a legal actionable cause of action linked to her injury until having received legal advice. The docket Judge should have found that such discoverability was made after 2009. 5.1.3 The docket Judge erred that the limitation period for the defamation was 1 year in circumstances where the defamatory remarks fell in the saving transition period s 46 of the Defamation Act 2005 (Vic) therefore covered by the transition act of 6 years. The docket Judge failed to consider s46(2)(c) of Defamation Act Victoria which stipulates 6 year period commences on the date of publication to causes of action that accrues after 1 January 2006.The first contingency of cause of cause of action related that was defamatory occurred in September 2005. The second and subsequent ones thereafter take in June 2006. 5.1.4 The docket Judge erred in finding that the Appellant could not access the associated Jurisdiction of the Federal Court to bring all other causes of action that are associated to the central complaint in one proceeding. The docket Judge should have found that owing to s32 of the Federal Court Act the accrued jurisdiction enables the Appellant to bring other associated and related causes of action from the complaint to the Federal Court jurisdiction emphasis on cost and resource saving. Further the failure to pay the long service leave is attributed to a breach of contract by which the Appellant has pleaded in the statement of claim as such. 5.1.5 The docket Judge erred by finding that the breach of contract was out of time in as afar as the statement of claim attributes to contingencies to have occurred independently in 2006, 2007,2008,2009,2010 and 2011 when the Appellant was finally terminated. Therefore each breach has to be seen as an independent cause of action which accrues time separately and independently. Under this premise the Appellant is not out of time as it follows that where there is more than one cause of action in a proceeding, causes of action may accrue at different times. See: 'Magman International Pty Ltd v Westpac Banking Corporation' (1992) 104 ALR 575, 593; ATPR 41-161, 40, 201 per Hill J. 5.1.6 The docket Judge erred in finding that the non payment of Long Service Leave, could not be made as a constituent of breach of contract. The docket Judge ought to have found that this culminated as a breach by implication that upon termination an employee is bound to remunerate the employer completely all their legally owed interests including the Long Service Leave. Primarily such a breach, not to make a statutory payment, results in a breach of contract and a breach of statutory duty. The High Court has held that whether or not a non-federal claim is severable is a matter of practical judgment ('Fencott v Muller' (1983) 152 CLR 570 at 610), with the result that related non-federal claims are rarely defeated for want of jurisdiction. The above test is applied by the Court and a decision reached as to whether the Court has accrued jurisdiction as outlined in the case of 'Re Wakim; Ex parte McNally' (1999) HCA, where the findings made were that where there is a conflict between state and federal jurisdictions, the Federal Court was held to have such accrued jurisdiction. 5.1.7 The docket Judge erred by finding that causes of action accrues when there is a breach of s52 of the TPA however it is established principle that causes of action do not accrue until damage and or loss has ben ascertained. See: 'Wardley Australia Ltd v State of Western Australia' (1992) 175 CLR 514. 5.1.8 The docket Judge erred by finding that the Appellant did not plead repudiation of contract therefore instead of conferring the Appellant the opportunity to re-plead struck out the claim due to that inadequacy in pleading. The docket Judge should have offered the Appellant the opportunity as a lay person to re-plead on that basis. 5.1.9 The docket Judge erred by finding that VCAT was a Court of proper jurisdiction to ventilate the causes of action when it is closed to him that VCAT has no such jurisdiction. 5.1.10 The docket Judge erred by finding that the causes of action struck out could have been brought at VCAT but this action did not occur or otherwise could not be actionable during the time of the proceedings at the tribunal and could not be ventilated at that time therefore. 5.1.11 The docket Judge erred in finding that VCAT was a jurisdiction capable of dealing with causes of action that he further strike out as an abuse of process. VCAT was not a "Court" pursuant to s86 of the TPA. Further VCAT has not been given jurisdiction over general common law or equitable claims. Further vcat has no accrued or ancillary jurisdiction over matters "associated" with matters in which VCAT's undoubted jurisdiction is invoked, not withstanding the inadequacy of the Tribunal jurisdiction the amount of damages sought by the Appellant could not be accommodated within VCAT jurisdiction and the matter would have had to be refereed to a federal jurisdiction. But being that these actions were not actionable at that time as the causes of action had not crystallised or occurred their persecution was not possible, and further with consideration the Appellant was not terminated at the time of the VCAT proceedings. 5.1.12 The docket Judge therefore erred in his formulation of the principles governing abuse of process and in his view of the circumstances in which the proceeding would be summary dismissed. The abuse of process test warrants the test of instituting a proceeding for an improper purpose. His Honour, did not concede that the proceedings was instituted for an improper purpose. See: 'Williams v Spautz' [1992] HCA 34; (1992) 174 CLR 509 (27 July 1992) [11]. Fundamental to the matters raised by this ground of appeal is whether his Honour erred in determining whether some causes of action had been statute-barred and in determining whether the matters which Ms Finch sought to raise in the Federal Court proceedings were an abuse because they had been dealt with in other proceedings. The principal difficulty for Ms Finch in relation to this ground, however, is that his Honour's decision was based upon an exercise of judicial discretion by reference to the form and state of the pleadings Ms Finch had sought to rely upon. It is true that his Honour considered questions concerning whether some of the claims she sought to maintain were statute-barred, but the basis of his Honour's exercise of discretion was the form and state of her pleadings. 19 The test to determine whether his Honour erred in the exercise of judicial discretion is that found in House v The King (1936) 55 CLR 499 in which at 504-5 of the joint judgment it was said: The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. Unlike courts of criminal appeal, this court has not been given a special or particular power to review sentences imposed upon convicted persons. Its authority to do so belongs to it only in virtue of its general appellate power. But even with respect to the particular jurisdiction conferred on courts of criminal appeal, limitations upon the manner in which it will be exercised have been formulated. Lord Alverstone L.C.J. said that it must appear that the judge imposing the sentence had proceeded upon wrong principles or given undue weight to some of the facts (R. v. Sidlow). Lord Reading L.C.J. said the court will not interfere because its members would have given a less sentence, but only if the sentence appealed from is manifestly wrong (R. v. Wolff). Lord Hewart L.C.J. has said that the court only interferes on matters of principle and on the ground of substantial miscarriage of justice (R. v. Dunbar). See, further, Skinner v. The King and Whitiaker v. The King. (Footnotes omitted.) An appeal by Ms Finch from his Honour's order must, to succeed, show error in this sense. 20 Ms Finch drew attention to the fact that her causes of action in the Federal Court were different from the complaint that she had made in VCAT. His Honour was aware of that and at [95] said: It is true that the applicant's case in VCAT relied only on the EO Act, whereas she relies now on the common law of negligence, on contract, on the TP Act, on the OHS Act and on the law of defamation. However, any viable cause of action that the applicant had in any of these areas was available to her when she commenced, and prosecuted, her proceeding under the EO Act. I was not addressed on the question whether VCAT had jurisdiction to adjudicate on the causes of action upon which the applicant now relies; nor, for that matter, upon the question whether there was a court that had jurisdiction to adjudicate on those causes of action as well as on the applicant's claim under the EO Act. But, assuming, favourably for the applicant, that there was no means by which she could, contemporaneously, have relied on all those other causes of action and on the EO Act, I would nonetheless hold it to be vexatious, and in that sense an abuse of process, for her now to repackage what are substantially, if not wholly, the same issues and irritations on which she lost in VCAT as an ostensibly fresh proceeding in this court. His Honour had earlier in his reasons for judgment analysed in some detail the nature of the complaints which Ms Finch had sought to raise in the proceedings in the Federal Court through her application and the further amended statement of claim. His Honour was aware that the complaints sought to be raised by Ms Finch in the Federal Court proceedings were different causes of actions from the cause of action in the complaint that she had made in VCAT. He concluded, however, that it would be "vexatious, and in that sense an abuse of process, for [Ms Finch] now to repackage what are substantially, if not wholly, the same issues and irritations on which she lost in VCAT as an ostensibly fresh proceeding in this Court". The submissions by Ms Finch in her application for leave to appeal that her claims in the Federal Court were different causes of action from the complaint brought in VCAT, therefore, do not address the basis upon which his Honour exercised the judicial discretion to prevent Ms Finch from maintaining those separate causes of action in the Federal Court in light of the same underlying complaint having been pursued and lost by Ms Finch in VCAT. An operative reason for his Honour exercising the discretion in favour of the respondents, and against Ms Finch, was that the form of the further amended statement of claim was a pleading which his Honour considered was likely to cause prejudice, embarrassment or delay in the proceeding contrary to r 16.21(1)(d) of the Rules. At [97] his Honour said: Aside from the problems to which I have referred to date, the respondents objected to the Further Amended Statement of Claim as a pleading on the ground that it was likely to cause prejudice, embarrassment or delay in the proceeding: r 16.21(1)(d). This objection is well-founded. Whether or not an underlying cause of action might be discerned, I would never allow a document such as the Further Amended Statement of Claim to stand as the factual basis of litigation in this court; nor would I require the respondents to plead to it. It is unnecessary to consider, therefore, many of the individual matters raised by Ms Finch in support of her ground of appeal. It is unnecessary to consider the detail of whether his Honour was incorrect in his conclusion about many of the causes of action being statute-barred. Nor is it necessary to consider some of the other matters raised in her submissions such as that in paragraph 5.1.7 and whether the complaint in that paragraph could possibly be made out in light of his Honour's observation at [79] of being prepared to perceive in her proceeding allegations favourable to Ms Finch. 21 The sixth ground in the application by Ms Finch for leave to appeal related to the order made by his Honour that Ms Finch provide security for costs. The sixth ground in the application was stated as follows: The docket Judge erred in improper exercise of his discretion by awarding security of cost where there was no defence to rely on in exercising such discretion, there was no defence to base such exercise of that discretion , the estimation was flawed based on a statement or a claim that was none existence at that point in time. The judge ignored the applicant evidence via an affidavit on her income and the stifling effect to her claims. Further particulars on how the judge fell into this point of appeal are articulated in the draft notice of appeal. The proposed ground of appeal dealing with this ground in her application for leave stated: 6 The docket Judge erred and wrongly exercised discretion when ordering security for costs 6.1 The docket Judge made an error in awarding security of cost of 25,000.00 in circumstances where it was not proper to exercise that discretion against an individual person. Particulars 6.1.1 The docket Judge erred in improper exercise of his discretion by awarding security of cost where there was no defence to rely on in exercising such discretion. Further it was a flaw to base security of cost on a statement or a claim that was none existence. The docket Judge ought to have found it that the FCC ought to have dealt with that calculation and award on the statement of claim drafted at that Court. Otherwise it was improper to award security of cost where on a statement of claim that has just been summarily dismissed. 6.1.2 The docket Judge erred in awarding security of costs where the Court generally require evidence by which it might estimate the defendant's probable recoverable costs see Gujarat NRE Australia Pty Ltd v Williams[2006] NSWSC 1131; Western Export Services Inc v Jireh International Pty Limited [2008] NSWSC 601. Such estimate are out of mere speculation. By raft of approximation if $50,000 sought was for five cause of action therefore the 1 cause of action left ought to be 1/5 of the $50,000. To avoid any speculation rather than merely diving the estimate in the middle. 6.1.3 The docket Judge erred in refusing to allow the Appellant the opportunity to tender evidence in regards to her income as she held the burden of proof of demonstrating why an order against her should not be made. 6.1.4 The docket Judge erred in finding that the Appellants husband income had to be produced as evidence and was missing but by the evidence of the affidavit of the Appellant therein lays sufficient evidence of income. There is no requirement of any test which require spouse's income to be leverage in subjecting Appellant to the burden of security of cost or otherwise. 6.1.5 The docket Judge erred in finding that the Appellant had refused to enter into an agreement with the Respondents to pay its undetermined costs, without any evidence of such refusal by her. 6.1.6 The docket Judge erred in holding the security of cost application in circumstances where there was no defence. 6.1.7 The docket Judge erred in failing to follow and apply the decision of Mortimer J in 'Kiefel v Victoria' [2014] FCA 604, especially at [34] and [40] or to have regard to the public interest in not barring access of individuals, regardless of poverty, to the Court with legitimate complaints within jurisdiction. 6.1.8 The Judge failed to consider the evidence of the Appellant that her financial position had been caused or contributed to by the conduct of the Respondents was 'never considered nor contested by the Respondents, nor with any evidence. 6.1.9 The docket Judge erred in finding that the proposed order was objectively reasonable and would not stultify the proceedings, without considering the evidence including the medical and financial evidence provided by the Appellant and the affidavit of evidence. 6.1.10 The docket Judge's exercise of discretion was otherwise miscarried. 6.1.11 The docket Judge erred in holding that the Appellant pay security of cost on none existence pleading and statement of claim purely based on speculation on behalf of FCC where security of cost against Appellant under the referral of the HREOC (Disability Discrimination Certificate) was not generally made. 6.1.12 The docket Judge erred in law in holding that the Respondents is entitled to 'protection ... for its existing and future costs'. where the existing cost is subject to a separate proceeding in another jurisdiction of which there is a foreshadowed fraud investigation by the Victorian Police that it was begotten by perjury and fraud. 6.1.13 The cost awarded at the another proceeding of $180,000.00 in the previous proceedings was not a factor as the Appellant is and has been in communication with the insurer about probable modes of its settlement, and the Respondents have not enforced such costs. See: 'Drury V Andreco Hurll Refractory Services Pty Ltd' (No. 4) [2005] FCMA 1226. The submissions by Ms Finch were that his Honour erred in awarding security for costs as he did, but Ms Finch did not identify any error of the kind considered in House v The King in relation to the exercise of the Court's discretion to award security for costs. 22 His Honour began his consideration of whether to award security for costs from paragraph [107] in his reasons and noted in [108] that a natural person, such as Ms Finch, should ordinarily not be cut out from prosecuting a genuine claim on the ground of his or her impecuniosity "in the absence of some additional factor". The reason his Honour ordered Ms Finch to provide security for costs was the presence of "two additional factors" which were found to be present on the facts before him. The first additional factor was the difficulties which the respondents had had to face in dealing with what were by then three iterations of Ms Finch's pleadings. The second additional factor, related to the first, was his Honour's view that Ms Finch was "to be seen as a litigant who prosecuted, and lost, a substantial case, who did not pay the costs of that case or of appeals instituted by her in respect of it, and who then sought to relitigate many of the issues upon which she was previously unsuccessful". It was by reason of those additional factors that his Honour concluded that security for costs should be ordered. His Honour also considered that the financial circumstances of Ms Finch did not speak clearly in favour of making an order against her but that the specific history of her conduct in relation to her refusal to pay other costs orders made against her required an order protecting the respondents from being exposed to the risk of another costs order against Ms Finch not being paid. At [112] his Honour said: My conclusion that the respondents need an order for security to protect them from the prospect that, if they succeed, their costs will remain unpaid depends not on the proven impecuniosity of the applicant but on her record of intransigence in the payment of costs ordered against her on previous occasions. At the same time, I do not find that an order for security, in a sum which reflects the usual conservative approach taken by the court in such matters, would stultify the applicant's litigation. None of the submissions made by Ms Finch in her application for leave to appeal identify any error in principle, or in application of principle, in his Honour's conclusion that Ms Finch should be required to provide security for costs. The matters relied upon by Ms Finch fail to engage with the issue upon which any appeal would depend, namely, whether there had been a relevant error in his Honour's exercise of discretion. None of the 13 matters in paragraph 6 of the proposed notice of appeal, nor any of the submissions made by Ms Finch orally or in writing, point to an error of the kind considered in House v The King. His Honour's consideration of the history of the dispute between Ms Finch and the respondents led him to conclude at [110] that there was "real cause to doubt whether [Ms Finch] would readily comply with any costs order made in the respondents' favour". There was evidence before his Honour to support that conclusion. In particular the costs payable by Ms Finch of the VCAT proceeding had been taxed in the amount of $180,000 and remained unpaid. Ms Finch may regard it as unjust for her to be required to pay the costs awarded against her but the evidence before his Honour was of the refusal by Ms Finch to pay costs ordered to be paid by her by a competent Tribunal with legal authority to impose such an order upon her. His Honour also had evidence upon which to conclude that an order for security for costs would not stultify her litigation. The evidence before his Honour had included that Ms Finch was unemployed but that she owned properties, each subject to a mortgage, and had previously engaged professional legal advisers in connection with the proceeding. His Honour's order reflected the concern at [112] that the respondents' need for security was to protect them from the prospect that, if successful, their costs would remain unpaid not because of proven impecuniosity but because of the record of Ms Finch of intransigence in the payment of costs awarded against her on previous occasions. The quantum awarded to be paid was conservatively halved from that sought by the respondents on the basis of the evidence of Mr Avallone in an affidavit filed in support of the application. 23 The seventh ground in the application by Ms Finch for leave to appeal related to his Honour's "dismissing" the further amended statement of claim and referring the proceeding to the Federal Circuit Court. The seventh ground in the application was stated as follows: The docket Judge erred in dismissing the Appellant's Further Amended Statement of Claim and referring it to the FCC where the ills and the murmur could be cured by a re-pleading rather than summary dismissal. The proposed ground of appeal dealing with this ground in her application for leave stated: 7 The docket Judge erred in dismissing the Appellant's Further Amended Statement of Claim under the circumstances where it was possible to re-plead it 7.1 The docket Judge erred in dismissing the Appellant's Further Amended Statement of Claim and referring it to the FCC where the ills and the murmur could be cured by a re-pleading rather than summary dismissal. Particulars 7.1.1 The docket Judges comments and findings are based on undetermined and circumstantial rather than testing of evidence. 7.1.2 The problems that are raised in The docket Judgement are related to pleadings and do not warrant substantial dismissal of the claims sought as they are wrought with speculations. 7.1.3 There has not been sufficient evidence for example warranting a qualified view be formed when cause of action accrued in as far as when the Appellant became aware of the causes of action in regards to bringing a claim for damages on her injury. 7.1.4 It was therefore premature and improper to disallow the Appellant a further pleading chance but embark on summary Judgement on the causes of action where there was no defence made by the defendants and on matters that warrant a full trial. 7.1.5 The docket Judge erred in holding that the requirements to constitute a date of discoverability before 2009 in circumstances where causes of action had not accrued to constitute a legal standing. Pursuant to s 87G in personal injury the awareness ought to be that the injury was significant enough to justify bringing an action. The appellant was not aware of such an action till 2012. Therefore The docket Judge should have found that the claim was not statute barred. 7.1.6 The docket Judge erred in not making a finding that as per the complaint of unconscionable conduct causes of action arises with breach however claims pursuant to s51AA which concerns death and injury and actions commenced under TPA s82(2),87(1A), s871CA) are precluded from the 6 years limitation period. Hence The docket Judge fell into error in finding that the claim of unconscionable conduct was statue barred and should instead have held that recovery of damages beyond the limits prescribed by s82 of the Trade Practices Act through the possible award of s87 damages. 7.1.7 Otherwise via an affidavit the Appellant sought extension of time under TPA as the Court has discretion to extend time pursuant to s87H . Such an application as amongst all the appellant applications and evidence was not heard. Nor orders made against it. The submissions by Ms Finch in support of this ground relied upon her previous submissions, including broad contentions of default or contempt by the respondents, and that there was a monetary limitation of $750,000 on orders that the Federal Circuit Court could make. 24 The issue before his Honour was whether to exercise the Court's discretion on the material available. The material before his Honour included the terms of the application and of the statement of claim and the history of the proceeding, including the various attempts by, or on behalf of, Ms Finch to produce a satisfactory statement of claim. His Honour was attracted by the respondents' submission (recorded at [104]) that the Court could have no confidence that the problems with the proposed further amended statement of claim would be overcome if Ms Finch were given a further opportunity to formulate her allegations in a form that would provide a satisfactory foundation for the prosecution of her claims. His Honour assessed that submission in favour of Ms Finch, however, on the basis at [105] that the objectionable complaints in the proposed further amended statement of claim would be removed from any future pleading limited to a claim that her employment had been terminated contrary to the Disability Discrimination Act on the grounds of a disability. His Honour observed at [106] that such a claim "should be a short and uncomplicated one" and it was that consideration which led his Honour to give Ms Finch the opportunity to re-plead her case to that limited extent. 25 Contrary to the various matters claimed in paragraph 7.1 of the proposed ground of appeal, his Honour did not err in dismissing her further amended statement of claim or in referring her proceeding to the Federal Circuit Court where it could be cured by a re-pleading in the limited way contemplated by his Honour. It can be accepted, as stated by Ms Finch in paragraph 7.1.1 of the particulars to paragraph 7.1, that his Honour's "comments and findings are based on undetermined and circumstantial rather than [the] testing of evidence", but that is the nature of an application to strike out a pleading. Many of the other particulars in the submissions by Ms Finch were complaints made upon a misunderstanding of the nature of a strike out application which focuses upon the pleading to determine whether it should be allowed to stand as the basis for further interlocutory steps in preparation for a hearing. Many of the particulars to paragraph 7.1 challenge facts without addressing whether his Honour erred in exercising a judicial discretion on the pleading and material relevant to the case as pleaded. Neither the grounds nor the submissions made by Ms Finch, in other words, revealed error by his Honour in the exercise of judicial discretion in the sense required in House v The King. No error by his Honour was shown by Ms Finch in the complaint that there was a monetary limitation of $750,000 in claims in the Federal Circuit Court. 26 The eighth ground in the application by Ms Finch for leave to appeal related to his Honour's consideration of the damages available to Ms Finch under the Trade Practices Act and for breach of contract. The eighth ground in the application was stated as follows: The docket Judge erred in interpreting what damages were applicable under Trade Practice Act and Breach of Contract. His finding that there was no recourse of pleading injury to reputation was flawed. Judge erred that even though he made findings that there was a injury to reputation that there was not an avenue to make such claim. However As the High Court has explained in Sellars v Adelaide Petroleum NL (1994) 179 CLR 332, a claim for damages for loss of reputation is available whether the damage occurred by reason of breach of contract, tort or contravention of s 52(1) of the Trade Practices Act 1974 (Cth). In appropriate cases, damages may in principle be awarded for loss of reputation caused by breach of contract: 'Mallick v BCCI' [1997] 3 All ER 1, citing Aerial Advertising v Batchelors Peas Ltd and 'Anglo-Continental Holidays v Typaldos Lines' (London) [1967] 2 Lloyd's Rep 61. See also: 'Nixon v Slater and Gordon' (2000) ATPR 41–765 at 41–012 (Merkel J, in a case where ss 52 and 82 were used to ground damages for misleading and deceptive conduct causing damage to reputation). The proposed ground of appeal dealing with this ground in the application for leave stated: 8 The docket Judge erred in finding that the Appellant could not access any damages pursuant to the Trade Practices Act and Breach of Contract 8.1 The docket Judge erred in interpreting what damages were applicable under TPA and Breach of Contract Particulars 8.1.1 A damage for disappointment under section 82 of the TPA are very broad and does not contain any limitation on the kinds of loss or damage that may be recovered under the section. The section is therefore unrestricted, except by the requirement that the loss or damage suffered by the Appellant occur as a result of the Respondents' contravention of the relevant section of the TPA which The docket Judge confirms in para 79. In this respect in 'Italform Pty Ltd v Sangain Pty Ltd' [2009] NSWCA 427 at [42], Macfarlan JA said: "In many cases, [causation] will be shown by proving that the conduct was relied upon in the taking of some action, often, as here, by the entry into a contract. In other cases, particularly when the misleading or deceptive conduct is constituted by a failure to speak or advise, the notion of 'reliance' is less useful as one of the 'tools of analysis' to be utilised for the purpose of determining whether there is 'a causal connection (denoted by the word "by") between [misleading or deceptive] conduct and the loss and damage allegedly suffered'. In relation to quantifying the damages for the loss suffered, the essential applicable principles were summarised by Martin CJ in Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd (No 2) (2009) 261 ALR 179 at 200-1, as follows: The cases establish that where a party claims to have suffered loss and damage 'by' reason of conduct in contravention of [s 18] the usual measure of damage will be the measure applicable in tort — namely, the sum required to place that party in the position in which they would have been but for the contravening conduct. However, the measure is not confined to the measure in tort, or by analogy to other measures, such as that available in contract or equitable remedies. 8.1.2 The docket Judge erred that even though he made findings that there was a injury to reputation that there this was not an avenue to make such claim. However As the High Court has explained in Sellars v Adelaide Petroleum NL (1994) 179 CLR 332, a claim for damages for loss of reputation is available whether the damage occurred by reason of breach of contract, tort or contravention of s 52(1) of the Trade Practices Act 1974 (Cth). In appropriate cases, damages may in principle be awarded for loss of reputation caused by breach of contract: 'Mallick v BCCI' [1997] 3 All ER 1, citing Aerial Advertising v Batchelors Peas Ltd and 'Anglo-Continental Holidays v Typaldos Lines' (London) [1967] 2 Lloyd's Rep 61. See also: 'Nixon v Slater and Gordon' (2000) ATPR 41–765 at 41–012 (Merkel J, in a case where ss 52 and 82 were used to ground damages for misleading and deceptive conduct causing damage to reputation). 8.1.3 The docket Judge fell into error by denying the Appellant had a right to make claim for loss of chance in a breach of employment contract away and apart from damages as a consequence of injury. See 'Commonwealth v Amann Aviation Pty Ltd' (1991) 174 CLR 64 and 'Howe v Teefy' (19927)27 SR (NSW) 301. There exist an element of repudiation within the breach of contract that ought to be pleaded and not dismissed based on the breach of contract and termination in 2011. 8.1.4 The docket Judge erred by limiting termination of employment to causes of action related to Disability Discrimination Act only. However he ought to have found that the termination was unconscionable and precipitated by assumption and failure of the Respondents to investigate and employ their grievance policies and avoid the injury to the Appellant, leading to termination. Such unconscionable conduct is pleaded to have emanated from termination of contract in 2011. The matters raised by Ms Finch under this ground overlap substantially with the issues raised by her under ground 5. Such matters as were considered by his Honour in relation to the damages available to Ms Finch under the Trade Practices Act and in her claim for breach of contract were considered by his Honour in dealing with whether the claims were statute-barred. However, the challenge to his Honour's conclusions in that regard, even if successful, do not deal with the fact that his Honour decided as he did because the pleading was not in a form that should be permitted to go forward given the history of the litigation between Ms Finch and the respondents. 27 It is unnecessary to consider in any further detail each of the particulars in paragraph 8.1 of the proposed grounds of appeal in support of the eighth ground in the application. However, it might be desirable to make the following general observations. The reference by Ms Finch to a finding by his Honour that she "could not access any damages" is, presumably, intended to refer to his Honour's observations that certain causes of action were statute-barred. His Honour dealt with the claims made by Ms Finch under contract saying at [67]-[73]: 67 The respondents' submissions dealt first with the applicant's breach of contract claims. It was submitted that the viability of those claims was compromised by the operation of the Limitation of Actions Act 1958 (Vic) ("the Limitations Act"), as made applicable by s 79 of the Judiciary Act 1903 (Cth). The relevant limitation period is three years to the extent to which the applicant seeks damages in respect of personal injuries (Limitations Act, s 5(1AA)), and otherwise six years (Limitations Act, s 5(1)(a)). As to the former category of claim, s 5(1A) limits the applicant to three years from the date on which she first knew that she suffered from the injuries alleged and that those injuries were caused by the act or omission of the respondents. 68 To the extent that the applicant alleges that the acts and omissions of the respondents during the course of her employment caused her to suffer psychiatric injuries, on her own allegations she first knew that she had suffered those injuries by December 2006 (see para 14 above) or 2007 at the latest (see para 53 above). Whatever she may have learnt from her doctor in December 2010 (see para 21 above), that was not, on her allegations, when she first knew of the injuries. Given the nature of the applicant's allegations, it could hardly be denied that she knew also – if it were the fact – that the injuries were caused by the respondents' acts or omissions. To the extent that the applicant's contract claims are for damages in respect of personal injury, those claims are, in the circumstances, statute-barred. That does not apply, of course, to the applicant's allegation that she suffered the injury of telogen effluvium of which, according to the Further Amended Statement of Claim, the applicant became aware only some time after 21 September 2009. 69 Otherwise, the applicant's case in contract is limited to causes of action which accrued after 21 September 2006. In the area of contract, the cause of action accrues when the contract is breached, not when damage is suffered: Handford, Limitation of Actions – The Laws of Australia, 3rd ed, 2012, p 98. 70 From this baseline, the applicant's contractual damages case must be limited to the pecuniary losses she has suffered, and to the non-pecuniary losses associated with telogen effluvium. Damages for distress, anguish, humiliation and the like are not available: Baltic Shipping Co v Dillon (1993) 176 CLR 344, 360-361. Taking the most favourable view of the Further Amended Statement of Claim, it may be that the applicant alleges that the conduct of the respondents after 21 September 2009 was responsible for her absence from work, and for the consequential loss of income (ie net of the WorkCover payments which she received), including bonuses or the equivalent. But, as alleged, that absence arose from her injury, which means, of course, that nothing before 21 September 2009 may be taken into account. 71 However, when the applicant's case in contract is held up to the light, it can only be the allegations relevant to her contraction of telogen effluvium, and to the termination of her employment in March 2011, at most, that have any viable existence after application of the provisions of the Limitations Act. 72 But are those allegations themselves viable? In relation to the termination of the applicant's employment, I refer to the summary set out in para 6 of what, according to the Further Amended Statement of Claim, were the relevant terms of her contract. If I may describe the tenor of the applicant's allegations in this area of the case, it is that her contract contained, including by incorporation and by operation of law, terms which imposed various procedural and process obligations on the company. The setting in which each of these terms spoke was that of an ongoing employment relationship. They dealt, in other words, with what the company was obliged to do during the currency of the applicant's employment. So far as I can see, no allegation is made as to any preconditions for, or any requirements of, the termination of the applicant's employment by the company. In the Further Amended Statement of Claim, I cannot find any allegation of a term of the applicant's contract of employment that would have made the termination of her employment a breach of contract. 73 In a number of areas, the applicant makes factual allegations as to events which occurred during the period when she was performing work in the service of the company, and follows with an allegation that, "by reason of" the matters so alleged, the respondents (or one or more of them) "fundamentally breached the contract of employment" (and other things). But it is nowhere alleged, and, in the light of the applicant's allegations as to the termination of her employment in March 2011, it is obvious that it is not the applicant's case, that this breach was repudiatory, and that she accepted the company's repudiation. His Honour's conclusion at [70] based upon the decision in Baltic Shipping Co v Dillon (1993) 176 CLR 344, 360-361 was not shown by Ms Finch to be incorrect. At [77]-[80] his Honour considered the claims by Ms Finch under the Trade Practices Act saying: 77 The respondents' submissions dealt next with the applicant's claims under the TP Act and the ACL. Aside from those which related to the termination of her employment in March 2011, all of the allegations made by the applicant in this area of the case related to conduct by the respondents before the commencement of the ACL. The relevant proscriptions were, therefore, to be found in the TP Act. By the operation of item 6(1) of Sched 7 to the Trade Practices Amendment (Australian Consumer Law) Act (No. 2) 2010 (Cth), the TP Act continues to apply to these claims. 78 Under s 87F of the TP Act, personal injury damages may not be awarded if the proceeding was commenced more than three years after the "date of discoverability", a term defined in s 87G(1) as the date upon which the applicant knew or ought to have known that her injury had occurred, was attributable to a contravention of the TP Act and was significant enough to justify bringing an action. Relevantly to the present case, by s 87D "personal injury damages" are damages or compensation for loss or damage that is, or results from, personal injury to a person. By s 87G(2), the applicant ought to have known a fact if she would have ascertained the fact had she taken all reasonable steps to ascertain the fact. To the extent that the allegations in the Further Amended Statement of Claim relate to personal injury of the applicant, I would hold that each of the requirements to constitute a date of discoverability existed before September 2009. In these respects, the applicant's claims, alleging both pecuniary and non-pecuniary loss, are statute-barred. 79 Otherwise – that is, in relation to damages claims arising other than in the context of an alleged personal injury – the limitation period under s 82(2) of the TP Act is six years from the accrual of the cause of action. Having suffered loss or damage is a necessary ingredient of such a cause of action: any cause of action which the applicant had under s 82, therefore, accrued when she suffered loss or damage. Aside from personal injury, it is not altogether clear from the Further Amended Statement of Claim which damage is alleged to have been suffered as a result of what are said to be the respondents' contraventions of the many substantive provisions of the TP Act relied on. Favourably for the applicant, I am prepared to perceive in her proceeding an allegation that her reputation was injured as a result of these contraventions. In point of timing, this injury would have occurred at, or immediately after, the contraventions themselves. The applicant would therefore, be practically limited to contraventions of the TP occurring on or after 21 September 2006. 80 The respondents submitted that the availability of an action in damages for contravention of the TP Act was subject to s 134AB of the Compensation Act. That submission was not developed, and I am not disposed to accept it. To the extent that a cause of action is available under a specific federal statutory provision, I cannot see how the law of a State can produce the result that the applicant cannot maintain the action, or recover damages in accordance with the provision. Nothing in these passages reveals an error of the kind raised by Ms Finch as paragraph 8. His Honour made no finding concerning the damages to which Ms Finch may be entitled if she had available a cause of action able to be maintained in an appropriate pleading. Her pleading was struck out because it was vexatious, in the sense of being an abuse of process, in the context of his Honour having no confidence that Ms Finch was able to produce an appropriate pleading. 28 The ninth ground of the application by Ms Finch for leave to appeal was that his Honour ought to have taken into account the conduct of the lawyers for the respondents. The ninth ground in the application was stated as follows: The conduct of Respondent legal representative otherwise as allowed by the judge primarily contributed to the way the Appellant's Further Amended Statement of Claim was dismissed illegitimately as particularised in the draft notice of appeal including misleading the court and relying incorrect documents to put forward their case in abuse of process and failure to defend or retrain themselves where three applications were made to that effect including one for contempt of court that was never heard nor defended. The proposed ground of appeal dealing with this ground in her application for leave to appeal stated: 9 The docket Judge erred by failing to consider the Respondents legal representative's conduct relating to the Further Amended Statement of Claim and overall conduct in the proceeding via various restraint applications that were not heard. 9.1 The docket Judge erred in failing to consider the conduct of the Respondents' legal representatives primarily contributed to the way the Appellant's Further Amended Statement of Claim was dismissed illegitimately. Particulars Misleading Conduct Leading to Mistrial 9.1.1 The Respondents counsel advanced misleading representations to the Court, thereby knowingly gave false evidence in the proceeding as to alter the outcome of the strike out application in the Respondents' favour. This is contrary to the obligation to correct any misleading statements. 'Professional Conduct and Practice Rules 2005' (Vic) rr 14.1, 14.2;Victorian Bar Practice Rules (Vic) rr 19, 20. 9.1.2 The Appellant made an application for contempt of Court as a consequence of the aforesaid conduct but that application never saw light of day and was never contested. 9.1.3 The Appellant then made three restraints applications which the Respondents legal representatives refused to defend and to date has never been heard in an open Court. 9.1.4 The belligerent misuse of the Court and the relationship with the docket Judge in tendering misleading documents in the proceedings, and then using them in having the Appellant's Statement of Claim struck out as vexatious having relied on those documents and then refusing to tender any defence to recusal applications made three times, meant that the conduct of the legal representative had a detrimental effect and caused a mistrial in the manner the proceeding was unjustifiably conducted. (Footnote omitted.) Many of the matters raised in this ground have been considered in the context of other applications by Ms Finch to restrain the lawyers chosen by the respondents to continue acting for the respondents: see Finch v The Heat Group Pty Ltd (No 2) [2016] FCA 791. Similar unsuccessful applications had also been made to his Honour. The question to be determined for present purposes is whether his Honour erred in the exercise of judicial discretion in making the orders on 4 March 2016. None of the matters raised by ground 9 in the application, or in paragraph 9.1 of the proposed notice of appeal, or in the submissions made by Ms Finch at the hearing of her application for leave to appeal, established that his Honour erred. The particulars in paragraph 9.1 of the proposed notice of appeal, even if accepted as being established by Ms Finch, do not in this case show error by his Honour in dismissing a proceeding on a cause of action found to be vexatious, and an abuse of process, in light of the history of the litigation between Ms Finch and the respondents, and in pleadings which were found in form to be embarrassing. 29 Accordingly, the first application by Ms Finch for leave to appeal will be dismissed. However, order 5 made by his Honour on 4 March 2016 should be extended consistently with the orders made on 24 March 2016 (see Finch v The Heat Group Pty Ltd [2016] FCA 315) to allow Ms Finch a further 21 days from the date of publication of these reasons within which to comply with orders 2 and 3 of his Honour's orders. 30 The second application to be considered is that by Ms Finch for an extension of time and for leave to appeal from the orders made by Jessup J on 20 April 2016 in Finch v The Heat Group Pty Ltd (No 6) [2016] FCA 390. That application was made on 11 May 2016 and was supported by an affidavit by Ms Finch sworn on 11 May 2016, a chronology of 102 pages prepared by Ms Finch of the litigation between her and the respondents, written submissions prepared by Ms Finch dated 15 August 2016 and oral submissions made by her on 14 September 2016. 31 On 20 April 2016 Jessup J made costs orders arising from his earlier decision of 4 March 2016. The respondents had sought orders for their costs thrown away in respect of the amended statement of claim, their costs on their application dated 28 November 2014 and their costs consequential upon his Honour striking out the further amended statement of claim and dismissing the proceeding except for the Disability Discrimination Act claim. The application which the respondents had made on 28 November 2014 had been to strike out the further amended statement of claim pursuant to Div 16.2 of the Rules, for security for costs pursuant to s 56(1) of the Federal Court Act in the amount of $50,000, for their costs thrown away in respect of the amended statement of claim dated 19 April 2013, and for the costs of their interlocutory application. 32 On 20 April 2016 his Honour made the following orders: 1. The relief sought in para 7 of the respondents' Interlocutory Application filed on 28 November 2014 be refused. 2. The applicant pay 85% of the respondents' costs of their Interlocutory Application filed on 28 November 2014. 3. The applicant pay the respondents' costs incurred only in connection with the allegations made in the Further Amended Statement of Claim filed on 7 October 2014 (other than the allegation that the termination of the applicant's employment by the first respondent involved a contravention of a provision of the Disability Discrimination Act 1992 (Cth)), not including – (a) the costs sought in para 7 of the respondents' Interlocutory Application filed on 28 November 2014; and (b) the costs of that Interlocutory Application. 4. Save as provided in the previous orders, the parties' costs of the proceeding be reserved, to be dealt with, if and when necessary, by the Federal Circuit Court of Australia. The application by Ms Finch for an extension of time and for leave to appeal these orders was required because the orders were interlocutory by reason of s 24(1)(a) of the Federal Court Act notwithstanding that his Honour's orders effectively brought an end to certain disputes between the parties: see Avetmiss Easy Pty Ltd v Australian Skills Qualification Authority [2014] FCA 507 at [4]; Margan v Australian Human Rights Commission [2013] FCA 612 at [32]-[37]. Section 24(1A) of the Federal Court Act provides that an appeal shall not be brought from a judgment that is an interlocutory judgment unless the Court or a judge gives leave to appeal. A decision dismissing an application on the basis that it was incompetent is relevantly interlocutory and requires leave even though the decision brings an end to part, or all, of a dispute. In SZAJB v Minister for Immigration and Citizenship (2008) 168 FCR 410 French J (as the Chief Justice then was) said at [23]: Where a court holds that it lacks jurisdiction to entertain an application and that the application is to be dismissed as incompetent, the dismissal order effectively disposes of the proceedings in the court in which the application is brought. The order does not "finally dispose of the rights of the parties" in the sense necessary to characterise it as a final judgment. It simply means that the court in which the proceeding is brought lacks the authority to deal with it. It says nothing about the rights which the party seeks to vindicate. It may be that an application has been brought in the wrong court. So an application may be brought in the Federal Magistrates Court which exceeds the subject matter value by which the relevant jurisdiction of that court is defined. An order dismissing the application as incompetent would not finally dispose of the rights of the parties to it. They would simply have to go somewhere else. Similarly, an application brought before the Federal Court may be dismissed as incompetent on the basis that it lies outside the jurisdiction conferred by statute upon this Court. In the case of judicial review proceedings it may be that the matter could be entertained in the High Court in the exercise of the original jurisdiction conferred upon it by s 75(v) of the Constitution. The character of the order dismissing an application as incompetent is illustrated by these examples. It does not for that reason alone decide the rights or liabilities in issue. There may be a case like Zoya Kosmodemyanskaya 79 FCR 71 where the finding of want of jurisdiction flows from a finding on the merits. So if the finding of want of jurisdiction depends upon findings of jurisdictional fact fatal to the merits of the claim, then it may be said to be a final judgment. However the order in this case was interlocutory in character. Leave is necessary before an appeal against it can be entertained. As was observed in Avetmiss, it may seem curious to a litigant who is not trained in law to describe as "interlocutory" a decision which effectively brings an end to a proceeding, but a decision is interlocutory within the meaning of s 24(1A) because the judgment from which the appeal is brought was not made upon the merits of the case as explained by French J in the passage quoted above. The decision by Jessup J did not decide the underlying merits of the dispute between Ms Finch and the respondents and was, therefore, interlocutory notwithstanding that the decision effectively brought an end to part of their dispute. 33 The overarching consideration in an application for an extension of time is whether injustice may arise by strict application of the time limits: Anthony v Chris Savage Pty Ltd [2003] NSWSC 698 at [35]. The following factors are relevant in determining whether to exercise the Court's discretion to grant an extension of time to apply for leave to appeal out of time: the likelihood of a court granting leave to appeal (see Deighton v Telstra Corporation Ltd [1997] FCA 1568); whether there is a satisfactory explanation for the delay in filing the application for leave to appeal (see Sharman License Holdings Ltd v Universal Music Australia Pty Ltd [2005] FCA 802 at [20]); the length of the delay in making the application (see Ford v La Forest [2002] 2 Qd R 44 at [4]); the history of the proceedings and the conduct of the parties (see Gallo v Dawson (1990) 93 ALR 479 at 480) and the consequences of the refusal to grant an extension of time (see Gallo v Dawson (1990) 93 ALR 479 at 480). 34 In considering the likelihood of a court granting leave to appeal it is relevant to consider whether there is sufficient doubt about the correctness of the costs decision and whether substantial injustice would result if leave to appeal were refused supposing his Honour's decision of 20 April 2016 to be wrong: see Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at [398]-[399]; SZUGQ v Minister for Immigration and Border Protection [2016] FCA 213 at [2]; Construction, Forestry, Mining and Energy Union v Australian Competition and Consumer Commission (2016) 242 FCR 153 at [13]. 35 Ms Finch relied upon five grounds in her application for an extension of time to file her application for leave to appeal his Honour's orders made on 20 April 2016; namely: 1. Grounds of application 1.1 The docket Judge erred by demonstrating apprehended bias and procedural unfairness. These are particularised in the draft notice of appeal in the form of declining to recuse himself from the proceedings, Further declining to hear a second recusal application against him. Disallowing the Applicant to tender and make application for recusal, thereby disallowing the Applicant for the third time to make a restraint application against the Respondents solicitors on the same day and by further failure to publish orders and judgements to orders made. The docket Judge's conduct was therefore premised with apprehended bias 1.2 The docket Judge erred by not abiding by the obligation in law to conduct the hearing in accordance with the principles of natural justice particularly as the Applicant was a self-represented litigant. The docket Judge had a duty to conduct the trial in a manner that was even handed and fair. He had a duty to ensure that a reasonable person would not form the view that the docket Judge was acting in a manner that could give rise to a reasonable apprehension of bias towards the Applicant. The finding on apprehended bias would therefore be enough to have the matter remitted back for a view also. 1.3 The docket Judge erred, by failing to consider and make a finding as to the costs liability of lawyers, in the event that the cost order was as a consequence of the conduct of the Applicant's solicitor, this was subject to submissions by the Applicant. 1.4 The docket Judge erred in taking a high level approach that was disproportionate with the reality in the costs involved. The discounting of 10% for the Respondents failure to secure their order for cost is disproportionate, as that failure should not be factored in the miniscule rate because the Respondents themselves abandoned an earlier iteration of their original application by which the Applicant suffered costs and accrued no compensation for it. 1.5 The conduct of the Respondents legal representatives otherwise, as allowed by the Judge, primarily contributed to the way the Applicant's Further Amended Statement of Claim was dismissed illegitimately as particularised in the draft notice of appeal including misleading the Court and relying upon incorrect documents to put forward their case in abuse of process, and failure to defend or retrain themselves where three (3) applications were made to that effect including one for contempt of Court that was never heard, nor defended. (Footnotes omitted.) The written and oral submissions by Ms Finch supplemented these grounds but none disclosed sufficient doubt about the correctness of his Honour's costs decision to warrant the grant of leave. 36 The first two grounds in support of her application were directed to matters other than the merits of the decision about costs. Ms Finch had made a number of recusal applications including that rejected by his Honour in Finch v The Heat Group Pty Ltd (No 4) [2015] FCA 1450 which has not been the subject of appeal by Ms Finch. Ms Finch submitted that his Honour refused to hear other applications for recusal but they too have not been the subject of appeal and, in any event, in this case do not bear upon the correctness of his Honour's decision in relation to costs. Furthermore, her complaint in ground 2 of a denial of procedural fairness is not borne out by, and is contrary to, the evidence of the proceeding and its conduct by his Honour. Generalised statements of complaint about procedural fairness such as, for example, that his Honour "unduly interfered with the conduct of the hearing" and that his Honour had "failed to permit the applicant to make submissions" are uninformative, unhelpful and, in this case, contrary to the record of the conduct of the proceeding by his Honour. Ms Finch did not point to any probative, relevant and admissible matter or submission which bore upon his Honour's decision that she had not been permitted to raise in the proper conduct of the proceedings before his Honour. 37 The third ground for the application by Ms Finch is that his Honour ought to have found that the lawyers acting for the respondents should pay for the costs. The Court has power pursuant to r 40.07 to order that a legal practitioner pay the costs awarded to be paid to a party in circumstances where the practitioner has engaged in misconduct. The application before his Honour concerned the competence of Ms Finch's pleadings and his Honour's orders awarded to the respondents their costs occasioned by her pleadings. His Honour did not make an order that would entitle the respondents to obtain costs on taxation that are not properly referable to costs arising from the pleadings filed by Ms Finch or to applications by the respondents in respect of those pleadings. This ground does not disclose any error by his Honour and has no substance. 38 The fourth ground of the application by Ms Finch was that his Honour erred in taking a high-level approach that was disproportionate to the responsibility and liability of the costs involved when undertaking the task of apportioning costs. The discretion in s 43 of the Federal Court Act is unfettered but it must be exercised judicially according to principle. In Caason Investments Pty Ltd v Cao (No 2) (2015) 237 FCR 351 it was said at [25]: In Kazar v Kargarian (2011) 197 FCR 113, the Full Court explained the considerations which generally should guide the proper exercise of the Court's discretion to award costs in favour of one party against another pursuant to s 43 of the Federal Court of Australia Act 1976 (Cth). At [4]-[9], Greenwood and Rares JJ said: 4 Although the discretion to award costs is unconfined or "absolute and unfettered" (Latoudis v Casey (1990) 170 CLR 534 per Dawson J at 557) the discretion must be exercised judicially, that is, according to relevant considerations, and take account of the contextual features and facts of the litigation. Although the discretion is unconfined or unfettered, the exposed reasoning explaining the factors informing the exercise of the discretion might reveal factors taken into account extraneous to the objects adopted by the legislature in conferring the statutory power and in that respect, plainly enough, the discretion is not "at large" (Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505 per Dixon J). 5 Although the discretion is said to be unconfined, absolute and unfettered, the public interest in the quelling of controversies and the administration of justice is secured by recognising that the discretion ought to be exercised according to settled principle. Settled principle guides the exercise of the discretion and recognises that the modern embodiment of the post Judicature Act discretion as to costs has escaped "arterial hardening" (Oshlack v Richmond River Council (1998) 193 CLR 72 per Gaudron and Gummow JJ at [38]) and has avoided elevating guiding principles into narrow legal rules controlling the exercise of the discretion (Norbis v Norbis (1986) 161 CLR 513 at 537 per Brennan J; Wilson and Dawson JJ at 533). Because settled principle merely guides the exercise of the discretion, there is no automatic or absolute rule controlling the exercise of the discretion to the effect that costs always follow the event. Nor is there an automatic or absolute rule that in the absence of disentitling conduct, a successful party is to be compensated by an unsuccessful party. Moreover, the jurisdiction conferred by s 43(1), exercised by reference to the broad discretion conferred by s 43(2), is not constrained by any rule that there is no jurisdiction to order a successful party to bear the costs of the unsuccessful party (Oshlack per Gaudron and Gummow JJ at [40] and [41]). As their Honours observe at [41] in Oshlack, there is nothing surprising or remarkable about the absence of hard arterial propositions in construing the scope of the discretion as the discretion must take account of the "myriad circumstances presenting themselves in the institution and conduct of litigation, and to the very nature of litigation" within the scope of the Court's jurisdiction. See also Probiotec Ltd v University of Melbourne (2008) 166 FCR 30 per Finn J at [1]; Rares J at [45]-[52] and Besanko J at [82] subject to the observations at [83]-[92]. 6 Some of the important principles however which guide the exercise of the discretion are reflected in the unifying judgment of Gleeson CJ, Gummow, Hayne and Crennan JJ in Foots v Southern Cross Mine Management Pty Ltd (2007) 234 CLR 52 at [25]-[34]. Their Honours observe at [25] that the award of costs is "discretionary but generally that discretion is exercised in favour of the successful party" (emphasis added). Of course, there are no automatic or absolute rules atrophying the true underlying scope of the discretion. 7 The operation of the pre judicature system with respect to costs infuses the approach to the flexibility of the discretion in the post Judicature Act environment and particularly in the modern treatment of costs applications operating under rules which are the genetic descendents of the Judicature Act provisions (such as s 43 of the Federal Court Act). In reflecting upon the practice of the High Court of Chancery (as described in Daniell's Practice of the High Court of Chancery, 5th Ed (1871), Vol 2, p 1239) and the discretionary nature of the award of costs in that Court, Gleeson CJ, Gummow, Hayne and Crennan JJ observe at [34] in Foots that the discretion historically was not inflexibly constrained by the rule of awarding the costs of the suit to the successful party but that the Court would, in exercising the discretion to award costs, take into consideration the circumstances of the particular case before it or the situation or conduct of the parties. 8 The practice guiding the exercise of the discretion was that the Court of Chancery did not regard the awarding of costs as a penalty or punishment but merely a necessary consequence of a party having created litigation in which the party had failed. Daniell's Practice also recognised that the Court was "generally, governed by certain fixed principles which it [had supposed, act upon the mere caprice of the Judge before whom the [controversy happened] to be tried" (Foots at [34]). In other words, without subsuming the discretion within inflexible rules, the discretion would be exercised according to broad settled principle as described. Having observed these matters about the practice of the Chancery Court, their Honours concluded those remarks by observing at [34] that "[t]he similarity with the modern treatment of costs applications will be readily apparent". 9 The exercise of the discretion takes account of all of the contextual circumstances of the litigation and the conduct of the parties. One aspect of the award of costs is a recognition that a party has been put to expense which, taking account of the merits as ultimately found on the trial of the action, might otherwise have been avoided. That consideration does not infuse the award of costs with any sense of penalty or punishment but simply recognises the compensatory nature of an award of costs, in context and according to principle. That is why an award of costs, although involving the exercise of a discretion, generally favours the successful party. As to the importance the community attaches to legal costs incurred of and incidental to the resolution of controversies before courts, see Clark v Federal Commissioner of Taxation [2010] FCA 415 at [90]; Uniline Australia Ltd v SBriggs Pty Ltd (No. 2) (2009) 82 IPR 56 at [38]; and Sagacious Legal Pty Ltd v Wesfarmers General Insurance Ltd [2011] FCAFC 53 at [130]-[132]. (Emphasis in original.) For the present purposes the question to be asked is whether the decision by his Honour reveals an impermissible exercise of the discretion: see House v The King. His Honour dealt with the application by the respondents for costs on their interlocutory application filed on 28 November 2014 at [7]-[14] as follows: 7 There were three substantive claims made in the respondents' Interlocutory Application filed on 28 November 2014: that the FASC should be struck out, that the applicant should provide security for costs, and that the applicant should pay the respondents' costs thrown away in relation to the ASC. The respondents have succeeded substantially on the first two of these claims, and the applicant has succeeded on the third. On the conventional basis that costs ought to follow the event, the respondents should get some part (not necessarily two-thirds) of their costs of that application. The applicant has, however, advanced several arguments as to why costs should not follow the event in relevant respects. 8 The applicant says first that her claims under the Disability Discrimination Act 1992 (Cth) ("the DD Act") survived (in effect if not in form) the striking out of the FASC. I accept that, and will give due recognition to this limited measure of success which the applicant achieved. 9 The applicant's next point relates also to the fact that this proceeding was, in part, a human rights one. She relies on what was said by Driver FM in Low v Australian Tax Office [2000] FMCA 6: In my view the Court should be slow to award costs at an early stage of human rights proceedings so that applicants have a reasonable opportunity to get their case in order, to take advice and to assess their position. It would, in my view, be undesirable for costs to be awarded commonly at an early stage, as that would provide a deterrent to applicants taking action under what is remedial legislation in a jurisdiction where costs have historically not been an issue. There are two answers to this submission. First, in relation to the striking out of the FASC, it was not the applicant's human rights claims which provided the basis for the respondents' success. Indeed, it was, I would have to say, the applicant's own choice to load up what would have been a simple case under the DD Act with a raft of other allegations that was responsible for the respondents being obliged to incur the costs which are the subject of the present application. And secondly, it can, in the circumstances, scarcely be doubted that, by the time she served the FASC, the applicant had had "a reasonable opportunity to get [her] case in order, to take advice and to assess [her] position." 10 The applicant next points out that the respondents had not filed their Defences as at the time when the sufficiency of the FASC came up for consideration. That was also an argument which the applicant advanced on the Interlocutory Application itself. It was of no substance then and it is of no substance now. As I held on 4 March 2016, the very problem (or one of the problems) with the FASC was that it did not provide a reasonable foundation for the conventional requirement that the respondents should file their Defences. For the respondents' advisers to have incurred costs on answering the allegations in the FASC would, in my view, have been counterintuitive at best and arguably irresponsible. 11 Finally, the applicant argues that the corporate respondent is "a multi-million dollar company" with its own insurance arrangements and that the court should not set a precedent for the awarding of costs in a situation such as the present one, which would tend to "stifle" the claims of a litigant in a position such as her own. It will be clear from my reasons of 4 March 2016, however, I take the view that the court should not be reluctant to stifle the filing of pleadings of the kind, and in the form, of the FASC. If the only effect of those reasons is to set a precedent against the filing of such pleadings, the outcome will have been a salutary one. 12 In the written submissions which she has filed, the applicant has raised a number of other matters and issues, but none of them bears a legitimate relationship to the respondents' application for the costs of their Interlocutory Application filed on 28 November 2014. 13 In the submissions which the parties made on this question, I was provided with no assistance as to how some allowance might be made for the applicant's success in retaining (in substance if not in form) her claim under the DD Act; nor, for that matter, for the prospect that the respondents might succeed on some, but not all, of the claims for costs. Taking a high-level approach to the matter, I consider that justice would be done if an allowance of 10% were made for the respondents' failure to secure an order for their costs thrown away in relation to the ASC, and if an allowance of 5% were made in relation to the applicant's success in retaining her claims under the DD Act. 14 For the above reasons, I propose to order that the applicant pay 85% of the respondents' costs of their Interlocutory Application filed on 28 November 2014. There is nothing in these considerations to establish error in his Honour's exercise of discretion as considered in House v The King. His Honour also awarded costs to the respondents of so much of the proceeding as was dismissed by his order 4 made on 4 March 2016 at [15]-[18] saying: 15 The respondents' conventional entitlement to costs (as following the event) as a result of Order 4 made on 4 March 2016 is subject to the following qualifications: • those costs should not include costs thrown away as a result of the ASC or the costs of the respondents' Interlocutory Application filed on 28 November 2014, those subjects having been dealt with specifically above; and • the entitlement should be confined to costs incurred in connection with so much of the applicant's case as was dismissed by that order. 16 In relation to the second of those qualifications, for the assistance of the taxing officer I add that that I do not envisage that the respondents would achieve a proportional component of costs incurred in the litigation generally, such as, for example, the cost of preparing and filing a notice of address for service. 17 The applicant's submissions in opposition to this claim for costs by the respondents did not depart materially from the submissions which she made in opposition to their claim for the costs of their Interlocutory Application filed on 28 November 2014, and have been sufficiently dealt with above. 18 I shall make costs orders in favour of the respondents consistently with these reasons. Nothing in these passages reveals error in principle or in its application. 39 Ground 5 in the application by Ms Finch relied again on alleged failures by the legal representatives of the respondents in the conduct of the proceedings. Ms Finch specifically referred in that regard to misleading the Court by purportedly relying upon certain incorrect documents. However the particulars relied upon by Ms Finch did not bear upon the costs incurred or ordered by his Honour. It was irrelevant to his Honour's decision on costs whether or not there had been reliance by the respondents upon three documents which were described by Ms Finch as being misleading and deceptive. However, if the fact of the documents being misleading or deceptive was relevant to his Honour's decision on costs, the circumstances concerning those documents was dealt with and explained in the affidavit of Ms Prpich sworn 10 May 2016 and by her subsequent evidence which Ms Finch sought to test by cross-examination. There is no substance in the suggestion by Ms Finch that any of the costs awarded by his Honour was occasioned by the misconduct particularised by Ms Finch. 40 In the circumstances there is insufficient reason to doubt the correctness of his Honour's decision on costs to warrant the extension of time sought by Ms Finch and it is unnecessary to consider whether Ms Finch has provided a sufficient explanation for the delay. The consequences of refusing to grant an extension of time will be that Ms Finch will no longer be able to appeal the costs decision and will be required to pay the costs to be taxed in accordance with that decision. 41 Accordingly, the applications will be dismissed. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Pagone. Associate: Dated: 3 February 2017 SCHEDULE OF PARTIES VID 243 of 2016 VID 457 of 2016 Respondents Fourth Respondent: ADAM WHITE Fifth Respondent: JOHN SIMCOCKS Sixth Respondent: DARREN SCOTTI