Dye v Commonwealth Securities Limited

REASONS FOR JUDGMENT 1 This is an application for an extension of time and for leave to appeal from orders made by Buchanan J on 20 April 2012. Those orders required the applicant to pay the respondents' costs of two proceedings before this court in the sum of $5.85 million. The costs judgment is Dye v Commonwealth Securities Limited (No 2) [2012] FCA 407. 2 As might naturally be expected, the costs judgment was subsequent to a primary judgment given by Buchanan J on 16 March 2012: Dye v Commonwealth Securities Limited [2012] FCA 242. In that judgment, his Honour dismissed the two separate proceedings before the Court brought by the applicant relating to sexual discrimination and sexual harassment, allegedly by officers of the first and fourth respondents. 3 The applicant appealed both judgments within time under the Federal Court Rules 2011 (Cth) r 34.24. A notice of appeal, which was given proceeding number NSD526/2012, was filed and, in relation to the second proceeding, a notice of appeal with proceeding number NSD527/2012 was also filed. On 6 June 2012 the notice of appeal in NSD526/2012 was amended so that it explicitly referred to the orders which had been made by Buchanan J on 20 April 2012. This was made clear from the opening words of the amended notice of appeal which read: The Appellant appeals from the whole of the judgments and orders of the Federal Court of Australia … given on … 20 April 2012 … 4 This was further made clear from the wording of section D of the amended notice of appeal, which was as follows: (i) The Judge erred in ordering costs against the Appellant of $5,850,000. (ii) The judge failed to proceed properly on indemnity costs in neglecting to bring the notices of motion for indemnity costs back before the Court before making the Order on 20 April 2012. 5 In the relief section of the amended notice of appeal the applicant sought by way of order 1 the following: That the appeal be allowed from the judgments of the Honourable Justice Buchanan of 16 March 2012 and 20 April 2012 and the rulings made in NSD1165/2008 be set aside. 6 At least, therefore, on 6 June 2012 when the amended notice of appeal was filed, it is correct as a matter of legal form to say that the applicant had appealed the costs order made on 20 April 2012. That fact puts in a curious light the present application for leave to appeal and for an extension of time in which to seek leave to appeal. 7 The curiosity arises because on 27 April 2012 the respondents to the present application filed, in the appeal proceedings, an interlocutory application seeking security for costs of the appeal. That application came before Emmett J on 14 August 2012 who, on the same day, determined that security should be ordered in the sum of $200,000 to be provided by 14 September 2012: per Dye v Commonwealth Securities Limited [2012] FCA 992. 8 An order to that effect was entered on 14 August 2012. On 14 September 2012, upon the security for costs not having been provided, the appeal was dismissed automatically by reason of the operation of order 3 of Emmett J's orders. The consequence is that the applicant has, in fact, already appealed from the orders of 20 April 2012, and, by force of order 3 of Emmett J's orders on 14 August 2012, that appeal has already been dismissed. There are two consequences of that for present purposes. 9 The first is that it makes it difficult to accept, in terms of the explanation being proffered for why an extension of time might be granted, that the applicant could not appeal within time the costs orders because the facts show that the applicant did in fact appeal within time. I make that observation notwithstanding the medical evidence which has been placed before me which indicates that throughout the period Ms Dye had difficulties which might impact upon her ability to pursue appeal proceedings. The fact is appeal proceedings were pursued. 10 The second matter, which is related to the first, is the difficulty in accepting as an appropriate candidate for leave to appeal, an appeal which has already been dismissed by force of an interlocutory order. It seems to me that the current application must be, at least in the formal sense, an abuse of process while order 3 made by Emmett J continues to be in effect. 11 In those circumstances I do not propose either to extend the time in which the application may be brought, nor, even if I were minded to do that, would I grant leave to appeal. In those circumstances I dismiss the application with costs. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.