FEDERAL COURT OF AUSTRALIA Ejueyitsi v Victorian Legal Admissions Board [2020] FCA 839 Appeal from: Application for leave to appeal from: Ejueyitsi v Victorian Legal Admissions Board [2020] FCA 165 File number: NSD 165 of 2020 Judge: FLICK J Date of judgment: 17 June 2020 Catchwords: PRACTICE AND PROCEDURE – application for leave to appeal – application refused – no arguable error Legislation: Competition and Consumer Act 2010 (Cth) Sch 2 (Australian Consumer Law) Federal Court of Australia Act 1976 (Cth) ss 24, 31A Legal Profession Uniform Law Application Act 2014 (Vic) Cases cited: Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117, (2009) 178 FCR 409 Rawson Finances Pty Limited v Commissioner of Taxation [2010] FCAFC 139, (2010) 81 ATR 36 Wills v Australian Broadcasting Corporation [2009] FCAFC 6, (2009) 253 ALR 228 Date of hearing: 10 June 2020 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 13 Counsel for the Applicant: The Applicant appeared in person Solicitor for the Respondent: Jennifer Butler of Victorian Government Solicitor's Office ORDERS NSD 165 of 2020 BETWEEN: VINCENT EJUEYITSI Applicant AND: VICTORIAN LEGAL ADMISSIONS BOARD Respondent JUDGE: FLICK J DATE OF ORDER: 17 JUNE 2020 THE COURT ORDERS THAT: 1. The Application for leave to appeal is dismissed. 2. The proceeding is dismissed. 3. The Applicant is to pay the costs of the Respondent, either as taxed or agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT FLICK J: 1 The Applicant in the present proceeding, Mr Vincent Ejueyitsi, commenced a proceeding in this Court in November 2019. The Respondent to that proceeding is the Victorian Legal Admissions Board. 2 In that proceeding Mr Ejueyitsi made two claims for relief expressed (without alteration) as follows: 1. Breach of the Competition and Consumer Act 2010 2. Wrongful application of law: Retrospective principle On 13 February 2020, a Judge of this Court dismissed the proceeding pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) ("Federal Court of Australia Act") and published reasons on 20 February 2020: Ejueyitsi v Victorian Legal Admissions Board [2020] FCA 165. 3 In dismissing the proceeding, the primary Judge concluded that the claim for relief under the Competition and Consumer Act 2010 (Cth) had no prospects of success, principally because the Respondent was not a "corporation" and that any conduct of the Board was not in trade or commerce. That conclusion was, with respect, clearly correct. Having clarified with Mr Ejueyitsi that the second prayer for relief was an argument arising under the Legal Profession Uniform Law Application Act 2014 (Vic), the primary Judge proceeded to conclude that that was not a claim in respect to which this Court has jurisdiction. The claim, according to the primary Judge, "whatever else one might say about it, [was] not a claim under a Federal law": [2020] FCA 165 at [17]. Even if the claim was recast as a claim under the Australian Consumer Law, the claim would fail for the same reasons as would the first prayer for relief. Again, with respect, those conclusions of the primary Judge were clearly correct. 4 The application now before the Court is for leave to appeal pursuant to s 24(1A) of the Federal Court of Australia Act. Leave is required because a decision dismissing a proceeding pursuant to s 31A of that Act is an interlocutory decision: Wills v Australian Broadcasting Corporation [2009] FCAFC 6 at [23] to [30], (2009) 253 ALR 228 at 232-233 per Rares J (Emmett J agreeing); Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117 at [32] to [44], (2009) 178 FCR 409 at 418 to 412 per Spender, Graham and Gilmour JJ. The principles guiding the exercise of the discretion to grant or refuse leave have been variously expressed, but an oft repeated expression of the principles is to consider: 1. whether, in all the circumstances, the judgment of the primary judge is attended by sufficient doubt to warrant it being reconsidered by the Full Court; and 2. whether substantial injustice would result if leave were refused, supposing the decision would be wrong. See: Rawson Finances Pty Limited v Commissioner of Taxation [2010] FCAFC 139 at [4]-[5], (2010) 81 ATR 36 at 38 per Ryan, Stone and Jagot JJ. 5 If leave be granted, the proposed grounds of appeal are expressed (again without alteration) as follows: Grounds of application 1. That the judgement obtained by the respondent on 13th February was made by an affidavit containing false information presented to the court that touched the root of the matter 2. That the court has jurisdiction on civil matter and also on a matter that gave rise to a criminal matter 3. And also as to jurisdiction per matter itself Both the Applicant and the Respondent Board filed an Outline of Submissions. 6 It has been concluded that leave to appeal should be refused with costs. 7 If attention is focussed upon the reasons of the primary Judge, it has been concluded that that decision is not attended by "sufficient doubt" to warrant it being reconsidered by a Full Court – indeed, it is respectfully considered to be clearly correct. There is, in such circumstances, no injustice occasioned to Mr Ejueyitsi in denying him the opportunity to further pursue a claim which is bound to fail or a claim in respect to which this Court has no jurisdiction. 8 If attention is focussed upon the oral submissions of the Applicant and his written Outline of Submissions, the gist of his concern is an allegation that the Board improperly relied upon a document titled "Uniform Principles for Assessing Overseas Qualifications" ("Uniform Principles"). As expressed in his written Outline of Submissions, the Applicant submitted as follows (without alteration): 12. Part 111 Leave to appeal and brief statement or argument … That the inadequacy and neglect shown by his Honour Justice Perram as to the issue of forgery and false statement made in an affidavit by the respondent in its application raised by the applicant caused concern to trigger error on his honour with respect, as its went deep into the fabric of the matter to uproot fraud 12b. It is the position of the applicant that his honour did not make any findings as to the false statement raised by the applicant despite being acknowledged by his honour, a clear determinant of the respondent's application credibility and the award of cost and other grounds of actions raised by the applicant be tested in particular as to the document an affidavit per se containing false statement in material particular, namely the Uniform Principles for Assessing Overseas Qualifications delivered to the court was created in existence in 2011 and used by both South Australia and Victoria Legal Admission Board and was only updated in 2015. The legal instrument did not exist till 2015. But the responded stated that the legal instrument used to assess the applicant application was that of 2011 that was only updated in 2015. … The submission was thereafter developed (again without alteration) as follows: 13. Grounds of Appeal The applicant submit that his Honour Justice Perram did not make any findings as to the issue of false statement alleged made by the respondent in its affidavit as it impact considerably on the authenticity of the respondent application that contained the false affidavit as enshrined in the document in particular information that was false in material particular, namely the Uniform Principles for Assessing Overseas Qualifications delivered to the court that the legal instrument was created into existence in 2011 and used by both South Australia and Victoria states and was only updated in 2015. It is submitted and reinforced again for purpose of clarity in this submission that from the revocation letter of the accreditation of the applicant's qualification, the applicant was asked to produce a qualification leading to a practice of law in foreign jurisdiction according to: "sub-rule (1) a of the Legal Profession Uniform Principles Admission Rules of 2015. Otherwise his accreditation would be revoked". The submission was understood to be a submission by the Applicant that the Uniform Principles to which he refers and by reference to which his application for registration was assessed did not exist and had been (at the very least) falsely edited. 9 There is one compelling answer to the concerns of the Applicant, however they may be expressed. Irrespective of the factual merit of the allegations being advanced, any such merit would provide no answer to the reasons relied upon by the learned primary Judge in dismissing the proceeding pursuant to s 31A of the Federal Court Act. The two claims for relief, it was correctly concluded, had no prospects of success for the reasons given. And, given those reasons, there was no necessity for the primary Judge to have made any finding in respect to the Uniform Principles. 10 The application for leave, it should be further noted, first came before the Court on 27 April 2020. Timetabling orders were then made in chambers listing the matter for hearing on 27 May 2020. Those orders were varied the following day and the matter was finally listed for hearing on 10 June 2020. On 20 May 2020, Mr Ejueyitsi requested a further adjournment due to difficulties in seeking legal advice due to restrictions imposed by reason of the COVID-19 pandemic. The application was refused. Mr Ejueyitsi, it was then concluded, had had an adequate opportunity in which to seek such legal advice as he may have desired. Indeed, Mr Ejueyitsi was able to seek out a solicitor, that solicitor emailing the court registry on his behalf on 25 May 2020 seeking an adjournment. The solicitor was directed by the registry to file a Notice of Acting, but did not do so. He did not appear at the hearing. 11 The Applicant at the outset of the hearing on 10 June 2020 again requested an adjournment and the provision of legal representation. That application was made so as to redress what the Applicant perceived as the "balance of power in the Court". Again, that application was refused. There was considered to be no sufficient merit in the application for leave to appeal to warrant any referral to (for example) the New South Wales Bar Association for pro bono assistance. And, even with any disruptions occasioned by COVID-19 which may have impacted the availability of legal assistance, the Applicant has had about two months in which to secure such other legal representation as he may have considered appropriate. 12 A submission advanced by the Applicant that the Board he had named as the Respondent to the proceeding had "no standing" was misconceived. The Board clearly had an interest in resisting the relief sought. 13 It is concluded that the Application for leave to appeal should be dismissed, as should the proceeding itself. THE ORDERS OF THE COURT ARE: 1. The Application for leave to appeal is dismissed. 2. The proceeding is dismissed. 3. The Applicant is to pay the costs of the Respondent, either as taxed or agreed. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick. Associate: Dated: 17 June 2020