GRAHAM J
1 There are two appeals presently before the Court. These are identified as appeals in proceedings NSD 354 of 2009 and NSD 355 of 2009. The appeals relate to a judgment of Moore J, delivered on 9 April 2009, when the two matters were before the Court at first instance. His Honour delivered one set of reasons referable to the two matters which were heard together.
2 The original Notices of Appeal were filed on 28 April 2009. They were superseded by 'AMMENDED' Notices of Appeal filed on 29 June 2009. The appeal in proceedings NSD 354 of 2009 is an appeal from the judgment and orders of the primary judge in proceedings NSD 1743 of 2008 and the appeal in proceedings NSD 355 of 2009 is an appeal from the judgment and orders of the primary judge in proceedings NSD 1744 of 2008.
3 I have had the advantage of reading the draft reasons for judgment of Logan and Flick JJ in these matters. I entirely agree with their Honours' conclusion that the appeals in each matter should be dismissed and with their reasons for reaching that conclusion. I would, however, wish to provide the following additional reasons.
4 It would appear that the appellant was employed by Fairfax Media Publications Pty Limited then known as John Fairfax Publications Pty Limited in January 2006 and worked for that company until the termination of his employment on 9 May 2007.
5 As a result of proceedings which the appellant instituted on 29 June 2007 and subsequently, following the termination of his employment, he has become quite an experienced litigant in person
6 In his proceedings NSD 1743 of 2008 he alleged that he was terminated for a prohibited reason in contravention of s 792(1)(a) of the Workplace Relations Act 1996 (Cth) ('the Act'). Under s 809 of the Act the onus of proving that he was not dismissed for a prohibited reason fell upon his employer.
7 In proceedings NSD 1744 of 2008 the appellant made parallel claims against numerous people whom he contended were involved in his alleged wrongful dismissal. These included the Managing Director of the parent company Fairfax Media Limited, the non-executive directors of that company, the company secretary of that company and a number of employees and contract workers retained by Fairfax Media Publications Pty Limited, a subsidiary of Fairfax Media Limited.
8 Proceedings were apparently commenced in this Court and were included in the docket of Justice Gyles. His Honour transferred the proceedings to the Federal Magistrates Court of Australia. After numerous skirmishes in that Court in proceedings SYG 2671 of 2007 and SYG 2704 of 2007 before Cameron FM, his Honour summarily dismissed both proceedings.
9 Following the grant of leave to appeal from the ultimate decisions of 26 June and 28 July 2008 of Cameron FM, appeals to this Court were brought by the appellant. Those appeals, in proceedings NSD 1031 of 2008 and NSD 1197 of 2008 were heard by Justice Jagot (see Dowling v Fairfax Media Publications Pty Ltd 172 FCR 96), who upheld the appeals and remitted the matters to the Federal Magistrates Court for determination according to law.
10 Cameron FM then proceeded to transfer the matters back to the Federal Court of Australia whereupon they came into the docket of the primary judge from whose judgment delivered on 9 April 2009 the appeals presently before the Court have been brought. His Honour dismissed the application in the proceedings which became NSD 1743 of 2008 before his Honour against the appellant's former employer Fairfax Media Publications Pty Limited and also dismissed the proceedings which became NSD 1744 of 2008 against the natural person respondents. His Honour ordered that the appellant pay the costs of the second to tenth respondents inclusive as the non-executive directors of Fairfax Media Limited, in the proceedings. His Honour, perhaps inadvertently, omitted to note that the tenth respondent, Miss Hambly, was in fact the company secretary rather than a non-executive director. Counsel for the respondents acknowledges the distinction between the second to ninth respondents on the one hand and the tenth respondent on the other but submits that the same order as to costs should have been made in respect of the tenth respondent as was made in respect of the second to ninth respondents.
11 In my opinion, even though Miss Hambly may have had no part to play in the termination of the appellant's employment by Fairfax Media Publications Pty Limited, nevertheless as an employee of the Fairfax Media Limited group she may, more naturally, fall within the category of persons in respect of whom no order as to costs should be made because of s 824 of the Workplace Relations Act. One might surmise that her costs would be unlikely to be any different from those of Fairfax Media Publications Pty Limited in respect of which no order should be made as indeed no order was made, because of that section. Given that Miss Hambly's costs are likely to be immaterial and such that they would not increase the burden falling upon the appellant by virtue of the primary judge's order in respect of the costs of the non-executive directors, I would be loath to vary the order that his Honour made.
12 Sections 792 and 809 of the Act fell within Part 16 and s 824 fell within Part 18 of the Act. By s 3 of and item 1 of Schedule 1 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, Parts 2 to 23 inclusive of the Act were repealed from 1 July 2009 but, relevantly, continued for the purposes of these appeals, by Clause 11 of Schedule 2 to that Act.
13 The 'GROUNDS OF APPEAL' and 'ORDERS SOUGHT', as recorded in the two 'AMMENDED' Notices of Appeal, were substantially similar. The 14 so-called grounds of appeal were as follows:
'1. Justice Moore clearly took a bribe off the respondents - which includes but is not limited to a bribe off John B Fairfax, Nicholas Fairfax and Mark Burrows.
2. Justice Moore erred in law in failing to disqualify himself upon the grounds of having a personal interest and breached section 34 of the 1914 Crimes Act - which includes but is not limited to knowing [in NSD 355 of 2009 this reads 'a bribe off'] John B Fairfax, Nicholas Fairfax and Mark Burrows.
3. Justice Moore erred in law in failing to make a summary judgment in my favor and breached section 34 of the 1914 Crimes Act, given that Ron Walker, Julia Marion King, Roger Corbet, Mark Burrows, David Evans, Peter Young, John Fairfax, Nicholas Fairfax, Gail Hambly failed to discharge the reverse onus of proof
4. Justice Moore erred in law and committed financial fraud and breached section 34 of the 1914 Crimes Act in awarding costs to Ron Walker, Julia Marion King, Roger Corbet, Mark Burrows, David Evans, Peter Young, John Fairfax, Nicholas Fairfax, Gail Hambly.
5. Justice Moore ignored gross amounts of perjury and evidence [in NSD 355 of 2009 the words 'and evidence' were omitted] and in doing so breached section 34 of the 1914 Crimes Act.
6. Attempted blackmail by Justice Moore. Justice Moore threatened and intimidated me on numerous occasions which includes but is not limited to threatening me with jail on the instructions of the respondent's barrister Kate Eastman. The basis of this was a perjured affidavit by one of the respondent's solicitors, Shivchand Jhinku. Justice Moore should have stood down from my matters as soon as he threatened me with jail.
7. Justice Moore breached section 34 of the 1914 crimes act and tampered with and diluted discovery orders in Chambers without my consent to the benefit if the respondents. He also gave the respondents until the 17th of March to make available the documents for discovery.
8. Justice Moore erred in law in that he refused to allow me interrogatories.
9. Justice Moore erred in law in that he refused to allow me to subpoena Ron Walker, Julia Marion King, Roger Corbet, Mark Burrows, David Evans, Peter Young, John Fairfax, Nicholas Fairfax, Gail Hambly.
10. Justice Moore erred in law in that he refused to allow me to subpoena the respondents lawyer Shivchand Jhinku.
11. Justice Moore erred in law in that he allowed Gail Hambly in court for the full the hearing even though she was one of the respondents.
12. Justice Moore has breached section 34 of the 1914 Crimes Act in failing to hand down his written reason for the Notice of Motion that was heard on the 10th of March 2009.
13. Justice Moore erred in law in failing to stop the criminal conduct of the respondents Barrister Kate Eastman and the Freehills Solicitors Shivchand Jhinku and Emily Wong. Shivchand Jhinku was a respondent in one matter and a witness in the two other matters.
14. Further grounds may be added'
14 The orders sought in the 'AMMENDED' Notices of Appeal were as follows:
'1. The matter is set down for re-hearing.
2. Interim reinstatement
2. Full back pay from the 9th May 2007
3. Damages and Costs [In NSD 355 of 2009 the words 'Damages and' were omitted.]
4. Having regard for section 809 of the Workplace Relations Act, Ron Walker, Julia Marion King, Roger Corbet, Mark Burrows, David Evans, Peter Young, John Fairfax, Nicholas Fairfax, Gail Hambly, be charged with Contempt of Court for failing to file a defence.
5. Their defense council (Kate Eastman and Shivchange Jhinku and Emily Wong and Chris Barton) be charged with Contempt of Court and be given jail sentences and referred to the Office of the Legal Services Commissioner.
6. Any other Orders that Court considers appropriate'
15 Notwithstanding the appellant's awareness that his appeals had been fixed for hearing on 6 November 2009, in mid-August, he failed to discharge his responsibilities in respect of the preparation and filing of appeal books.
16 On 23 October 2009 steps were put in place to remedy this situation but, in the result, no appeal books were produced. The appellant explained his omission in part because he had not been provided with a free copy of the transcript of the proceedings before the primary judge. He apparently presented Notices of Motion for filing in each proceeding in August seeking an order that a copy of the transcript be provided to him but these Notices of Motion were not accepted by the Registry for filing, following advice from Justice Jacobson that applications for mandamus would not lie against the primary judge requiring him to make the transcript available.
It may be that notification of the rejection of the Notices of Motion for filing did not reach the appellant until mid-October, even though the Court's files suggest that by letters dated 17 August 2009 the appellant was advised of such rejection and his documents were returned to him. In any event, it is clear that he made no attempts to follow up his wish that transcript be provided to him free of charge, after he presented his draft Notices of Motion for filing.
17 One of the claimed reasons of the appellant as to why he needed the transcript was to enable him to establish that a number of the witnesses who gave evidence before the primary judge had perjured themselves.
18 It so happens that the primary judge had made an order for a copy of the transcript to be provided to the appellant for his consideration in preparing his written submissions at first instance, which he presented to the primary judge on 31 March 2009. The appellant accepts that he had a copy of the transcript for four or five days but he had to thereafter return it to the Court.
19 On the hearing of his appeals on 6 November 2009 the appellant handed up copies of his written submissions of 31 March 2009 which made extensive references to the transcript and to witnesses who had allegedly perjured themselves.
20 When the appellant first enquired as to whether the Court would provide him with a copy of the transcript for use in relation to his appeals, he was advised that he could attend upon the Registry and read the Court's copy of the transcript. He says that he was further advised that if he identified pages which he wished to have included in the appeal books as relevant to his grounds of appeal he could notify the Court of the relevant page numbers whereupon the Court 'may' make copies of them available to him for inclusion in the appeal books.
21 In this context, the appellant acknowledges that he attended the Court registry and spent about half an hour going through the transcript. Whilst he may have indicated to the Registry staff that he would return to further consider the transcript on a later date, he elected not to do so and informed the Court on the hearing of the appeal that he was not disposed to take time off work from his then current employer to enable him to give consideration to the relevant transcript with a view to identifying parts of it that he may wish to have copied. Given that no assurance had been provided to him that selected pages would be copied and made available to him free of charge he considered that the exercise was pointless and took no further interest in reviewing the transcript.
22 When the appeals were called for hearing the appellant made an application that the requirements of the rules in respect of the provision of appeal books be dispensed with, that an order be made that he be provided free of charge with a copy of the transcript and that the hearing of the appeals be adjourned.
23 The Court was not disposed to make any further orders in respect of the provision of appeal books, it dismissed the application for the supply of a free copy of the transcript to the appellant and refused the appellant's application for adjournment of the hearing of the appeals indicating that it would proceed to address the appeals with the benefit of the primary judge's judgment, the Notices of Appeal and Amended Notices of Appeal and the appellant's outline of submissions filed 2 November 2009.
24 At the commencement of the hearing of the appeals, the appellant was reminded of what Bryson JA said in Malouf v Malouf (2006) 65 NSWLR 449 about the need to avoid preferential treatment for self-represented litigants in fairness to the other parties. At 452 Bryson JA said:
'Courts should not go so far in accommodating the positions of unrepresented litigants as to make it an advantageous procedural step to dismiss one's lawyers or to retain none. Nor should courts slip from unreadiness to shut a party out from litigating an issue which is fairly arguable into incapacity to close off procedural opportunities which are not taken. Without procedure, procedural directions and compliance, justice will not be done at all. The time, patience, resources and willingness to behave appropriately of those who do comply should have a place in consideration of what the court should do when a party who has not complied with earlier directions seeks an extension of time, or some procedural indulgence by which earlier directions are disregarded. The compliant also have an entitlement to consideration, and their compliance should not be disregarded, or mocked, by treating their opponent's obligation to comply with the court's directions as less than important or as superfluous.'
25 The 13 substantive grounds of appeal upon which the appellant relied were, in many respects, quite scurrilous and deserving of censure of the appellant. They included allegations to the effect that the primary judge had taken bribes from the respondents, that witnesses had perjured themselves by giving deliberately false evidence and that legal representatives for the respondents had been parties to a conspiracy to pervert the course of justice.
26 One would like to excuse the intemperate language employed by the appellant on the basis of his limited understanding of the English language. However, it became quite clear when he was asked what he had meant by his use of the words 'bribery', 'perjury' and 'conspiracy' that he had in mind deliberate wrongdoing on the part of the persons against whom his allegations were made.
27 Needless to say the appellant was unable to offer any plausible explanation for his allegation that the primary judge had accepted a bribe from the respondents. If one tried to give the appellant the benefit of some doubt one might say that he sought to advance a case to the effect that the learned primary judge had knocked back many of his requests for interlocutory relief in relation matters such as discovery, interrogatories and the issue of subpoenas. Furthermore, he contended that the primary judge failed to give reasons for his decisions in relation to a number of his determinations in respect of these matters. It followed, so the appellant submitted, that as he had been denied the discovery which he sought, the opportunity to administer the interrogatories which he sought and the opportunity to subpoena witnesses notably the second to tenth respondents, the learned primary judge had plainly approached the matter with a closed mind such that he could not be persuaded as to the rightness of the appellant's case. The appellant submitted that the primary judge was biased against him. He went further and submitted that it was not a mere case of apprehension of bias such that a reasonable bystander might believe that he might not bring an open mind to the determination of the issues in the case.
The appellant went on to submit that the only explanation for the bias which he contended that the primary judge exhibited towards him must have been that he had been in receipt of a monetary or some other form of bribe.
28 In my respectful opinion the appellant's process of reasoning does not bear analysis. It is true that he was denied the opportunity to issue some subpoenas, he was denied the right to administer interrogatories which he submitted to the Court and he did not enjoy the benefit of the discovery to which he believed he was entitled. In particular he took exception to the fact that the primary judge chose not to require that the respondent's lists of documents be verified.
29 It is important to note, of course, that the appellant did not seek leave to appeal from these findings which he now relies upon to justify his argument that the primary judge was biased against him and therefore must have been in receipt of a bribe from the respondents.
30 Whilst the primary judge may not have delivered a formal set of published reasons for his decisions on the interlocutory applications, excluding his oral observations thereon from the relevant transcript, the truth of the matter is that his Honour did give reasons, albeit brief, which were included in the transcript. No greater formality was required in respect of the applications in question.
31 As to the appellant's allegations that certain witnesses committed perjury giving deliberately false or fabricated evidence, it seems quite clear that the appellant had little understanding of what was said by the High Court in Smith v New South Wales Bar Association (1992) 176 CLR 256 at 268. In that case the High Court pointed out that evidence may be rejected without descending into the making of findings that a witness deliberately lied.
32 In his written submissions of 31 March 2009 before the primary judge, the appellant, using somewhat stronger language, drew attention to parts of the evidence which he said should be rejected because the witnesses who had given evidence that did not favour his case had committed perjury. No substantiation for the appellant's allegations of perjury was advanced.
33 In relation to the charge made by the appellant that one barrister and two solicitors representing the respondents had conspired to pervert the course of justice, it is important to note that the agreement said to constitute conspiracy was not said to have been made until months after the primary judge handed down his reasons for judgment.
34 The appeals were heard with ample opportunity being afforded to the appellant to address each ground of appeal seriatim and in some instances he was permitted to revisit them more than once. But when it came to the provision of precise details of his allegations his case simply fell apart. He never came forward with material which justified any of the grounds that he advanced in the most general of terms. No argument was developed that warranted consideration.
35 In my opinion the primary judge did not fall into any relevant error. The appellant's unreasoned and unwarranted malignment of others provided no proper basis whatsoever for a challenge to any relevant findings of the primary judge. None of the grounds of appeal have been made out and the appeals in each matter should be dismissed with appropriate orders as to costs.