Ejueyitsi v Victorian Legal Admissions Board

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.

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: