Kirkham v Monash University

(1) Is leave to appeal necessary because the judgment of the primary judge was interlocutory?

(2) If so, should the time within which the applicant had to apply for leave to appeal be extended?

(3) If so, should leave be granted to allow the applicant to appeal from the judgment of the primary judge?

1. An appeal to this Court from an interlocutory judgment of the Federal Circuit Court cannot be brought without leave: s 24(1)(d), s 24(1A) of the Federal Court of Australia Act 1976 (Cth). Rule 35.13 of the Rules provides that an application for leave to appeal must be filed within 14 days after the judgment was pronounced or the order was made. However, a person may apply for an extension of that time under r 1.39 and r 35.14 of the Rules.
2. Section 143(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) provides, relevantly, that the Federal Circuit Court may give judgment for a respondent against an applicant in relation to the whole or any part of a proceeding if the applicant has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding. Rule 13.13(a) of the Federal Circuit Court General Rules provides, relevantly, that the Federal Circuit Court may order that a proceeding be dismissed generally or in relation to any claim for relief in the proceeding if the court is satisfied that the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim. These powers are in similar terms to s 31A of the Federal Court Act and r 26.01(1)(a) of the Rules.
3. Section 24(1D)(b) of the Federal Court Act provides that a decision granting or refusing summary judgment under s 31A is taken to be an interlocutory judgment for the purposes of s 24(1A). Section 24(1D)(ca) is to the same effect with respect to s 17A of the Federal Circuit Court of Australia Act 1999 (Cth) which was in substantially the same terms as s 31A of the Federal Court Act. There is no equivalent deeming provision with respect to s 143 of the Federal Circuit Court Act 2021. Prior to the enactment of s 24(1D) of the Federal Court Act there had been a degree of conflicting authority and uncertainty as to whether an order for summary judgment under s 31A was a final or interlocutory order. However, that question was settled in favour of an interlocutory order in Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117; 178 FCR 401 at [42]- [43] (Spender, Graham and Gilmour JJ) citing Luck v University of Southern Queensland [2009] FCAFC 73; 176 FCR 268 at [101] (Rares J, Graham J agreeing).
4. Relying on Queensland Nickel Sales Pty Ltd v Park [2025] FCAFC 129; 312 FCR 225 at [31] (Markovic, Halley and Wheatley JJ), the applicant submits that the question of whether or not a judgment or order is final or interlocutory is determined by the legal effect of the judgment or order, not by reference to the findings which formed part of the reasons for making the judgment or order and also not by reference to the nature of the application made to the Court. He submits that, as the primary judge's order dismissed his application, on the face of the order, it was final.
5. The applicant also submits that the absence of an amendment to s 24(1D) of the Federal Court Act to include a reference to s 143 of the Federal Circuit Court Act 2021 should be taken to have been deliberate. He submits that the policy of s 24(1A) to which reference was made in Luck at [98] applies to a Full Court not a single judge exercising appellate jurisdiction as is the normal case in an appeal from the Federal Circuit Court to this Court.
6. Neither of the applicant's submissions regarding the 'final' nature of the primary judge's order dismissing his application is accepted.
7. Section 24(1D) is a deeming provision. It provides that a judgment of the Federal Circuit Court under s 17A of the Federal Circuit Court Act 1999 'is taken to be' an interlocutory judgment for the purposes of s 24(1A). Section 143 of the Federal Circuit Court Act 2021 is in exactly the same terms as s 17A of the Federal Circuit Court Act 1999. The absence of an amendment to s 24(1D) is inexplicable, but it merely means that a judgment of the Federal Circuit Court under s 143 of the 2021 Act is not 'taken to be' an interlocutory judgment for the purposes of s 24(1A). Therefore, the relevant question is whether a judgment or order dismissing an application under s 143(2) of the Federal Circuit Court Act 2021 or r 13.13 of the Federal Circuit Court General Rules on the ground that the court is satisfied that a party has no reasonable prospect of successfully prosecuting the proceeding is an interlocutory judgment within the meaning of s 24(1A) of the Federal Court Act.
8. Section 31A of the Federal Court Act is in substantially the same terms as s 143 of the Federal Circuit Court Act 2021. Relevantly, in Kowalski the Full Court (Spender, Graham and Gilmour JJ) said:
   1. The usual test for determining whether an order is final or interlocutory is whether the order, as made, finally determines the rights of the parties in a principal cause pending between them. That question is answered by determining whether the legal effect of the judgment is final or not. If the legal effect of the judgment is final, it is a final order; otherwise it is an interlocutory order (see per McHugh ACJ, Gummow and Heydon JJ in Re Luck [2003] HCA 70; (2003) 78 ALJR 177; 203 ALR 1 at [4]; see also Port of Melbourne Authority v Anshun Pty Ltd (1980) 147 CLR 35 (Anshun No 1) at 38).
   2. It may be that the practical effect of an order will be such as to render a further application fruitless unless supported by additional relevant facts, but that does not make an order one which finally determines the rights of the parties in a principal cause pending between them (per Taylor J, Owen J agreeing in Hall v Nominal Defendant [1966] HCA 36; (1966) 117 CLR 423 (Hall v Nominal Defendant) at 440-441, 447; see also per Windeyer J at 444; per Gibbs CJ in Carr v Finance Corporation of Australia Ltd [1981] HCA 20; (1981) 147 CLR 246 (Carr v FCA) at 248 and, per Mason J, as his Honour then was, at 256-257).

...

1. In our opinion, a case where summary judgment is given for a respondent in the absence of the full and complete factual matrix and full argument thereon, the Court being satisfied that the moving party has no reasonable prospect of successfully prosecuting the proceeding is no different from a case where an order is made dismissing an action because it is frivolous, vexatious, an abuse of the process of the Court or does not disclose a reasonable cause of action (see Re Luck) or one dismissing an appeal from an order of a Master refusing to set aside a default judgment (see Carr v FCA; Zoia v Commonwealth Ombudsman Department [2007] FCAFC 143; (2007) 240 ALR 624 (Zoia) per Spender J, Gilmour J concurring, at [14] and [19] and per French J as his Honour then was at [26]).

We respectfully disagree with the views expressed by Finkelstein J in Jefferson Ford [2008] FCAFC 60; 167 FCR 372 at [12] that "[i]n an application for summary judgment, the judge resolves the dispute on the merits", and by Gordon J, by way of obiter dicta, at [164] that "an order granting summary judgment on all claims ... is a final order because there are no further substantive rights in issue".

What the judge does, when considering a summary judgment application, is make a determination, on the material then before the Court, as to the prospects of the moving party successfully prosecuting the proceeding. The legal effect of such a judgment is not final.

...

1. In the carefully reasoned judgment of Rares J in Luck v University of Southern Queensland [2009] FCAFC 73; (2009) 176 FCR 268 his Honour expressed the opinion that a judgment or order under s 31A(2) that determines that an applicant has no reasonable prospect of successfully prosecuting a proceeding is interlocutory (at [101]). His Honour carefully reviewed the recent authorities on the question including Jefferson Ford Pty Ltd; White Industries; Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; (2006) 225 CLR 364; Simundic v University of Newcastle [2007] FCAFC 144; Zoia; Re Luck; Cockrell v Minister for Immigration and Citizenship [2009] FCA 444; Pham v Secretary, Department of Employment and Workplace Relations [2007] FCAFC 179; Owners of "Shin Kobe Maru" v Empire Shipping Company Inc (1994) 181 CLR 404; Dent v Australian Electoral Commissioner [2008] FCAFC 111; (2008) 249 ALR 523; Wills v Australian Broadcasting Corporation; Bonnell v Deputy Commissioner of Taxation (No 5) [2008] FCA 991 and Keynes v Rural Directions Pty Ltd (No 2) [2009] FCA 567; (2009) 72 ACSR 264.
2. In Luck v University of Southern Queensland, Graham J expressed his complete agreement with the reasons for judgment of Rares J which he had had the advantage of reading in draft. We see no reason to doubt the correctness of the reasoning of Rares J. We consider that a judgment in the nature of summary dismissal under s 31A(2) of the Federal Court Act is interlocutory. Accordingly, an appeal from the judgment of the primary judge of 5 February 2009 in [Kowalski] No 3 was incompetent in the absence of a grant of leave to appeal.

1. The reasoning in Kowalski and Luck cannot be distinguished. The point made in these judgments is that the 'legal effect' of a judgment made under s 31A of the Federal Court Act is not to finally determine the rights of the parties in a principal cause between them. That reasoning is consistent with the reasoning of the Full Court in Queensland Nickel Sales at [28]-[31] that the relevant question is the legal effect of the judgment. Further, a number of judges exercising the appellate jurisdiction of this Court have considered that an order dismissing an application under s 143 of the Federal Circuit Court Act 2021 and (or) r 13.13 of the Federal Circuit Court General Rules is an interlocutory judgment for the purposes of s 24(1A) of the Federal Court Act: EBW21 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 341 at [31]; CIK23 v Minister for Immigration and Citizenship [2025] FCA 896 at [12]- [13] (Bromwich J); SZVUO v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 1413 at [2] (Younan J). None of those decisions is plainly wrong. Indeed, the decisions are correct.
2. The applicant requires leave to appeal from the primary judge's orders.

Should an extension of time be granted and, if so, should leave to appeal be granted?

1. It is convenient to deal with the issue of an extension of time and, if granted, the issue of leave to appeal together because, as will be explained, each issue largely turns on the merits of the proposed grounds of appeal.

1. The principles applicable to the grant of an extension of time to appeal are well-established. These principles are equally applicable to applications to extend the time within which to apply for leave to appeal.
2. Applications for an extension of time are not granted unless it is proper to do so because the legislative time limits are not to be ignored. In general, the factors the Court will take into account in determining whether to grant an extension of time include whether there is an acceptable explanation for the delay, the length of the delay, the merits of the appeal, and any prejudice to the respondent(s) (but, absence of prejudice is not sufficient of itself to grant an extension): Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment [1984] FCA 176; 3 FCR 344 at 348-349 (Wilcox J); Parker v The Queen [2002] FCAFC 133 at [6] (Spender, O'Loughlin and Dowsett JJ). See, also, SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6] (Flick, Griffiths and Perry JJ). Ignorance of the time limit is not regarded as a satisfactory explanation for delay. However, a less persuasive explanation may be sufficient where the required extension is for a comparatively short period of time: SZJRV v Minister for Immigration and Citizenship [2008] FCA 298 at [6] (Flick J). The overarching consideration for the Court is whether it is in the interests of the administration of justice to grant the extension of time in the circumstances of the case. Thus, where the delay is short and no injustice will be occasioned to the respondent, the interests of justice would ordinarily require the extension of time to be granted provided there is sufficient merit in the grounds of the appeal to justify the hearing of the application for leave to appeal: WAAD v Minister for Immigration & Multicultural Affairs [2002] FCAFC 399 at [7] (Lee, Nicholson and Finkelstein JJ); Hasan v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 788 at [13]- [14] (Bennett J).
3. Consideration of the applicant's prospects of success does not require the Court to conduct a summary hearing of the appeal (or, here, the application for leave): Ward v Repatriation Commission [2004] FCA 1163 at [8] (Lee J). In making an assessment the Court is not required to go into too great a detail, but is to 'assess the merits in a fairly rough and ready way' and, in general, based on the statement of the applicant's case rather than opposing arguments or any detailed examination of the proofs of the argument: Jackamarra v Krakouer [1998] HCA 27; 195 CLR 516 at [9]- [10] (Brennan CJ and McHugh J).
4. In general, the discretion to grant leave to appeal is exercised having regard to two interrelated factors. First, whether, in all the circumstances, the decision is attended with sufficient doubt to warrant it being reconsidered by the appellate court. Second, whether substantial injustice would result if leave were refused, supposing the decision to be wrong: Décor Corp Pty Ltd v Dart Industries Inc [1991] FCA 844; 33 FCR 397 at 398-399 (Sheppard, Burchett and Heerey JJ).
5. When evaluating the prospects of success, the Court considers the grounds of the proposed appeal at a 'reasonably impressionistic level' and assesses whether the proposed appeal is 'sufficiently arguable' or has 'reasonable prospects of success': Olson v Keefe [2019] FCA 339 at [9] (Lee J); MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; 242 FCR 585 at [62]- [63] (Mortimer J). Further, in the exercise of the power to grant leave the Court must have regard to the statutory charge in s 37M(3) of the Federal Court Act that the power must be exercised or carried out in the way that best promotes the overarching purpose of the civil practice and procedure provisions described in s 37M(1) and s 37M(2) of that Act: Nationwide News Pty Ltd v Rush [2018] FCAFC 70 at [2] (Lee J, Allsop CJ and Rares J agreeing).

1. As the merits are assessed in an impressionistic and rough and ready manner, in most cases it should not be necessary to have regard to extensive materials or conduct a lengthy hearing to determine the question of whether leave should be granted and, where applicable, whether an extension of time should be granted. In this case, the applicant filed an affidavit and other material in support of his application of 1,672 pages. The Monash respondents filed affidavits and other materials of 909 pages and the second respondent materials of 471 pages. While the case management orders contemplated the possibility of hearing the appeal immediately after the application for leave, if leave were granted, the materials were largely irrelevant to the issue of an extension of time or leave. Therefore, unless a party made specific reference to a document in these materials in written or oral submission it has been disregarded for the purposes of the application for an extension of time and for leave to appeal.
2. Additionally, the Monash respondents object to certain of the materials upon which the applicant relies and parts of his affidavit in support of his application for leave to appeal. For the reasons that follow, certain of the materials upon which the applicant relies are not admissible as evidence on the application and have not been taken into account as evidence.
3. The Monash respondents object to a document described as an affidavit of Professor Manuel Graeber. That document purports to give evidence of observations and opinions about the hearing before the primary judge. The objection to that document is upheld on the ground that it contains opinion evidence that is in conclusionary form about the primary judge's tone and demeanour and otherwise purports to give opinion evidence of an issue that is to be determined if leave be granted; namely, whether there is a reasonable apprehension of bias.
4. The Monash respondents also object to various paragraphs of the applicant's affidavit affirmed in support of his application for an extension of time and to exhibits RK-4 and RK-7 of that affidavit. These objections are set out in the Schedule to these reasons. Each objection is upheld on the ground identified in the Schedule. However, the paragraphs of the affidavit to which objection has been taken will not be struck out, but received as submission. The exhibits are not received as evidence.
5. The Monash respondents also object to the applicant relying on an affidavit that he filed in the proceeding before the primary judge. That affidavit is 800 pages in length. The document may be received as part of the record before the primary judge, but it is not received as 'evidence' on the present applications before the Court.

1. The notice of appeal was filed on 23 June 2026. The notice of appeal includes a statement: 'In so far as leave might be required, leave is sought.' There is a footnote to that statement by which the applicant asserts, in effect, that the primary judge's orders were final. In so far as the notice of appeal includes an application for leave to appeal it is not an application in accordance with the Rules because it is not in accordance with Form 117 and is not accompanied by the documents described in r 35.12 and was made more than 14 days after the date of pronouncement of the primary judge's judgment as required by r 35.13. Nonetheless, the notice of appeal contains an informal, yet deficient, application for leave to appeal that was made only nine days (or six business days) late.
2. On 22 July 2025 a Registrar of the Court sent the applicant an email in which he was informed that the primary judge's decision was considered interlocutory and it was necessary for the applicant to apply for leave. The email explained the manner in which the applicant could apply for leave to appeal and an extension of time. On 26 July 2025 the applicant responded with an email asserting, amongst other things, in effect, that he had made an application for leave to appeal in his notice of appeal and disputing that leave was required. On 8 August 2025 the Registrar responded that the correspondence had been referred to the docket judge. On 1 October 2025 a case management hearing was held at which orders were made requiring the applicant to file an application for an extension of time and for leave to appeal without prejudice to his contention that leave was not required.
3. By combination of facts deposed, assertion and submission, in substance, the applicant contends that it is difficult for a litigant in person to know and understand that an order by which a claim is dismissed is anything other than a final judgment. He further submits that having two time limits (28 days for an appeal as of right and 14 days for an application for leave to appeal) is unfair and confusing for a litigant in person and the information and guidance on the Court's website about these matters provides inadequate explanation. He also submits he had study commitments during the period from 30 May to 13 June 2025 that, in substance, prevented him from filing his notice of appeal (and any application for leave to appeal) any earlier. He submits that he also required the transcript to prepare a notice of appeal and that was not available earlier.
4. I do not accept that the Rules are unclear or confusing or that having different time limits for filing applications for leave to appeal and for notices of appeal is unclear, confusing or unfair on litigants including litigants in person. Further, as already mentioned, ignorance of the Rules is not an excuse for failing to comply with them. However, I accept that it may be a surprise for a litigant in person to learn that an order dismissing his claim is not considered a final order or judgment, but interlocutory for the purposes of s 24(1A) of the Federal Court Act. As also already mentioned, there was conflicting authority in this Court about that issue before it was settled in 2009.
5. Otherwise, it is clear that the applicant wanted to appeal from the primary judge's judgment and, although not in the correct form, he applied for leave 23 days after that judgment was pronounced. The delay is short and is explicable, not by ignorance of the time limit, but ignorance of the interlocutory nature of the judgment. Although a formal application for an extension of time and for leave to appeal was not filed until October 2025, in substance, the relevant period of delay was nine days, which is short and satisfactorily explained by the nature of the order made.

1. In substance, the Monash respondents submit that there will be material prejudice to them in that they have a vested right in the primary judge's judgment to dismiss the applicant's claims. That right became vested, in effect, when the time for applying for leave to appeal passed without the applicant making an application.
2. The Monash respondents also submit that there will be prejudice because the notice of appeal is incompetent and they will be required to incur time and costs addressing these matters in the appeal. The individual Monash respondents also submit that they will be prejudiced in that the proposed grounds of appeal do not appear to raise any grounds that relate to them. The Monash respondents submit, that having regard to the overarching purpose of the civil practice and procedure provisions described in s 37M, the specific prejudice to them and general prejudice resulting from the drain on the resources of the Court are powerful reasons for refusing to extend time in this case.
3. The respondents' vested rights in the primary judge's judgment and the overarching purpose of the civil practice and procedure provisions described in s 37M are factors that weigh against granting an extension of time in this case. The proposed notice of appeal filed on 23 June 2025 and a proposed amended version of the notice of appeal annexed to the applicant's affidavit of 22 October 2025 do not conform to the requirements of r 36.01(2)(c) of the Rules in that neither document states briefly, but specifically, the grounds relied upon in support of the appeal. The documents are prolix, unfocussed and a mixture of assertion and submission and include numerous disrespectful, discourteous, scandalous and vexatious statements directed at the primary judge. It would be contrary to the overarching purpose to grant the applicant leave to file either of those documents as a notice of appeal.

1. Although the primary judge's orders concern matters of practice and procedure, self-evidently, the practical effect of the judgment was the dismissal of the applicant's claims against all respondents. The Monash respondents submit that refusing an extension of time is no great prejudice because it is merely refusing to permit the applicant to prosecute an incompetent appeal. That submission is not accepted. There would plainly be substantial injustice to the applicant to refuse to grant an extension of time and to grant leave to appeal if, notwithstanding the form of his proposed notice of appeal, he has identified a reasonably arguable ground of appeal.

1. As already mentioned, neither proposed notice of appeal is in a form that complies with r 36.01(2)(c) of the Rules. Nonetheless, if stripped of objectionable material and read with a view to genuinely trying to understand the nature of the applicant's complaint and without undue regard to matters of technical pleading, at least, the following three grounds of appeal emerge from those documents.

(1) The primary judge erred in law in refusing to recuse himself on the ground of a reasonable apprehension of bias because, by reason of the primary judge's excessive interventions, statements and other conduct during the hearing, a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the questions the judge was required to decide.

(2) The primary judge erred in law in failing to accord the appellant procedural fairness in that, by reason of the primary judge's excessive interventions, statements and other conduct during the hearing, there was a reasonable apprehension of bias because a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the questions the judge was required to decide.

(3) The primary judge erred in law in failing to accord the appellant procedural fairness and there was a miscarriage of justice in that, by reason of the primary judge's excessive interventions, statements and other conduct during the hearing:

(a) the appellant was denied a reasonable opportunity to present his case (disruption ground); further or alternatively

(b) there was such an egregious departure from the role of a judge presiding over an adversarial hearing that it unduly compromised the judge's advantage in objectively evaluating the parties' submissions from a detached distance (dust of the conflict ground).

1. Where a reasonable apprehension of bias is alleged the governing principle is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ). The application of this principle requires two steps. First, identification of what it is alleged might lead a judge to decide a case other than on its legal and factual merits. Second, there must be a logical connection between that matter and the feared departure from the judge deciding the case on its merits. After those steps have been taken, the reasonableness of the asserted apprehension of bias can be assessed: Charisteas v Charisteas [2021] HCA 29; 273 CLR 289 at [11] (Kiefel CJ, Gageler, Keane, Gordon and Gleeson JJ).
2. In this case, the applicant contends that the manner in which the primary judge intervened, what he said to the applicant and his tone and demeanour during the hearing are what might lead a fair-minded lay observer to think that primary judge might have prejudged the issues his Honour was called upon to decide. There may also be a miscarriage of justice or failure to accord a party procedural fairness, not amounting to a reasonable apprehension of bias, where the conduct of a judge unfairly prevents that party from properly conducting his or her case or so departs from the role of a judge presiding over an adversarial hearing as to compromise the judge's capacity to adjudicate: Gambaro v Mobycom Mobile Pty Ltd [2019] FCAFC 144; 271 FCR 530 at [18]- [27] (Greenwood and Rangiah JJ).
3. As a matter of impression and without detailed examination of the arguments and evidence, it is evident that it is reasonably arguable that the primary judge failed to accord the applicant procedural fairness on one or more of the grounds of a reasonable apprehension of bias, disruption or dust of the conflict.
4. The extent to which there was a reasonable apprehension of bias or procedural unfairness on other grounds requires, of course, a full and complete consideration of the context in which the primary judge intervened, made statements to the applicant and conducted the hearing. That context may well include earlier and other hearings during which the practice and procedure of the court was explained to the applicant. It may also include the manner in which the applicant made his submissions to the primary judge including his demeanour and tone. However, on an application of this nature it is neither necessary nor appropriate to undertake a detailed examination of all potentially relevant evidence or information. The following examples of the exchanges between the primary judge and the applicant provide a sufficient indication of the nature of the exchanges and demonstrate that the applicant's principal complaints are reasonably arguable and warrant investigation and consideration on appeal.
5. The applicant commenced his oral submissions before the primary judge with an attempt to make a submission to the effect that the document he had filed was not a statement of claim. That submission appears to have been an element of a wider submission the applicant tried to make to the effect that the primary judge should not conduct the proceeding on pleadings, but using a less formal process. In the course of attempting that submission there was the following exchange:

DR KIRKHAM: I am going to deal with, I guess, this in two ways. First, I can take whichever one you want to go with, but the first is that I'm claiming that I never actually filed, in substance, a statement of claim, it was the extra pages on the application form.

HIS HONOUR: Forget about that because quite frankly you have not at any time said that this was not a matter that was being dealt with by pleadings. You had the opportunity before me in December 2024 and say, "Hey, this is not a statement of claim. This is not something I wish to pursue on pleadings. I don't want to be doing that." And you had the opportunity again when you appeared before me in February 2025, having filed an amended statement of claim to say that thing. You are estopped from claiming that this was a matter that was not meant to commence by pleadings.

DR KIRKHAM: Let me get to my second proposal, anyway.

HIS HONOUR: No. No. No. There has not been any such claim before now. And if it is that you are now saying that you are not wanting to commence this or continue this by pleadings, then that is a tacit admission that this statement of claim should be struck out in its entirety and that you should be paying the costs of Monash in having to have brought this matter now to the court. Now, is that what your submission is to me?

DR KIRKHAM: No. So, I was going to say a second thing - - -

HIS HONOUR: Then forget about that because that, quite frankly, Dr Kirkham, is a statement that I would have great, great difficulty describing as anything other than disingenuous. So, you're not disingenuous. You're an honest person. So, start making some honest submissions.

DR KIRKHAM: But my second proposal was I would start by talking about explaining the statement of claim or whatever you want to call it.

HIS HONOUR: No, no, no. No. Don't tell me, "the statement of claim or whatever you want to call it." You are the one who called it a statement of claim. You made the decision to have it filed as a statement of claim. You are the person whom when I said to you at the beginning of this matter in December 2024 that you are deemed to know what you were doing. Are you now telling me that you did not know what you were doing and therefore what you told me in December 2024 was not correct, and I should not have relied upon it, that you knew what you were doing?

DR KIRKHAM: I thought I knew what I was doing, but I was not aware at that time - - -

HIS HONOUR: No. Are you telling me now - don't try and weasel out of this. You're not a politician. You answer my question directly, sir. Because there is nothing worse than someone trying to weasel out of things. You keep criticising Monash University for that sort of behaviour and you're doing exactly the same. Now, you answer my question.

DR KIRKHAM: Well, I - - -

HIS HONOUR: No, you answer my question, or this will - this will be over with very quickly. When you said to me in December 2024 that you knew what you were doing, were you telling me the truth then?

DR KIRKHAM: Yes, I thought I knew what I was doing. Yes, correct.

HIS HONOUR: Okay, so that means that you now know that you did not know what you were doing.

DR KIRKHAM: Okay, so I was not aware at the time that - - -

HIS HONOUR: No, no, no, answer my question, not your own. That means - it's yes or no, that you now know that you did not know what you were doing in December 2024.

DR KIRKHAM: I had an incomplete picture, sir, but let's - - -

HIS HONOUR: No, no, don't weasel out of that.

DR KIRKHAM: I'm not weaselling out. I was trying to explain - - -

HIS HONOUR: Either you knew what you were doing or you didn't.

DR KIRKHAM: I think I knew what I was doing, but any - let's put that to one side and keep moving - - -

HIS HONOUR: I know that. I know that you thought you knew what you were doing, but are you saying now that you didn't know what you were doing, because either you did know what you were doing or you didn't know what you were doing. There's no - you're not - you can't be a little bit pregnant, sir. Did you know what you were doing or did you not? Simple question. I want a simple answer.

DR KIRKHAM: No, would be the - part of the answer, but - - -

HIS HONOUR: Okay, so you didn't know what you were doing. No, that's it. You didn't know what you were doing.

DR KIRKHAM: I got confused. I - it's a bit more complicated than that, but I was not aware - - -

HIS HONOUR: No, it isn't.

DR KIRKHAM: - - - that these Federal Court Rules applied. I - and this - it may - it's improbable - you go - imagine you're a litigant in person, right. You go through the court's website. You go through the whole process. I did not know that a statement of claim - - -

HIS HONOUR: No, no, don't go on about - don't go on about it. Remember what I said to you? Remember what I said, that you - in the future, you cannot come to me and say to me, "I'm sorry. I didn't know what I was doing because I'm self-represented." I told you, that excuse does not wash, and here I am six months later, and you're coming to me with that excuse. It doesn't wash.

DR KIRKHAM: It's not an excuse, but anyway - - -

...

HIS HONOUR: - - - okay, as to what you want. There are two alternatives. One, you say, "I do not rely upon this amended statement of claim any more." If you say that, it will be withdrawn immediately, and we will see what happens from there, but I warn you that you will be paying costs, because I think that is unreasonable to be doing it at this time, or secondly, you can say, "No, I rely upon that amended statement of claim," and you wish to tell me why it is that that amended statement of claim has delineated a cause of action. So those are your two options.

1. The exchange arguably reveals prejudgement regarding the applicant's submission that the proceeding should not continue on pleadings, but by some other method. The exchange also arguably contained an element of prejudgement regarding costs if the applicant chose to withdraw the statement of claim. Under s 570 of the Fair Work Act 2009 (Cth) a court is not able to award costs against a party unless, relevantly the court is satisfied that the party's unreasonable act or omission caused the other party to incur the costs. In the exchange the primary judge arguably prejudged an application for a costs order that the respondents had not made, but could make, if the applicant withdrew his statement of claim. In substance, the primary judge arguably gave the applicant no option, but to proceed with his defence of the statement of claim as a pleading or otherwise pay the respondents' costs and precluded him from advancing an argument that the matter should not proceed on pleadings.
2. The primary judge also evidently took exception to the way the applicant tried to explain the issues raised in his pleading in a manner that was arguably disruptive and (or) a departure from the role of an impartial decision-maker in an adversarial proceeding. The following are examples of exchanges of that nature:

DR KIRKHAM: So that's page 64 of the document. And I'm not an orderly thinker, so this is - it's in there, but it's not maybe in the right order for the way you guys have thought about it.

HIS HONOUR: No, it's not the - it's the proper way. Don't say, "The way you guys want to do it." It's the way in which the rules and the law prescribe it, not the way you guys want to do it as if you think that there's some sort of secret little cabal where the lawyers all get together and people who aren't lawyers are obviously excluded because the lawyers are the ones who make the rules.

DR KIRKHAM: Well - - -

HIS HONOUR: That's what you mean by that sort of rubbish, "The way you guys want to do it."

DR KIRKHAM: No, I don't .....

HIS HONOUR: So don't - - -

DR KIRKHAM: I mean - - -

HIS HONOUR: Don't do that. That is just so patronising and it just doesn't become someone who says that they are the sort of person that you have pleaded that you are. Don't do it. Okay.

...

DR KIRKHAM: These are formatting points. All right. I agree I may have - I've probably not used the structure you want. All right. But let's park that .....

HIS HONOUR: Whoa, whoa, whoa. You do that again, and this - this is over. Okay. That is - you are not going to insult me again. You understand.

DR KIRKHAM: I was not trying to insult you. I'm just - - -

HIS HONOUR: I told you once already, do not use that tone of voice. Do not phrase things in the way that you have, and you've gone and done it again. I'm not going to tolerate it, you understand?

DR KIRKHAM: Yes, I'm not trying to - - -

HIS HONOUR: If you do it again, that will be the end of your submissions because you would have insulted the court a third time. I'm not going to stand for it. Understand?

DR KIRKHAM: I will do my best, sir. Yes.

HIS HONOUR: No, you don't do your best. You just don't insult the court. Have I made myself clear?

DR KIRKHAM: Yes, sir.

HIS HONOUR: Okay. I hear it one more time, that will be the end of your submissions.

DR KIRKHAM: I apologise. I'm not intending to insult the court. It's just - - -

HIS HONOUR: Come on.

DR KIRKHAM: Yes, I was .....

HIS HONOUR: Come on, keep saying, "I'm not doing it the way you want." It has got nothing to do with the way I want. It's what the law says. And I've explained that to you, and you keep harping back as if I'm part of some elite boys club that is trying to keep you out. And you use that phraseology to keep insulting the court. Do it again at your peril. Understand?

...

1. The primary judge also made a number of arguably unduly dictatorial, pejorative and (or) mocking statements about the applicant and the applicant's pleading and submissions. The following exchanges are examples:

DR KIRKHAM: Which is in the enterprise agreement as - are we going to argue about whether I'm an employee - was an employee or not covered by the enterprise agreement?

HIS HONOUR: Sorry. Are you the one taking over this, are you? Are you going to keep talking to me in that tone, Dr Kirkham? Is that the way in which you are going to be communicating with the court, with that sort of tone?

DR KIRKHAM: I'm sorry, sir. I'm struggling - - -

HIS HONOUR: No, you're not sorry. You did that deliberately. Now, if that - if that is the way in which you are going to behave, this hearing will be a very, very short hearing. I am not going to tolerate it. Okay. I am the one who is asking questions. I am the one who is trying to point out what the law prescribes and trying to show to you that this needs to be explained, as Mr Avallone explained to you, as to how it is that a statement of claim must be set out.

Now, the problem that we have at the moment is things get explained to you, but you ignore them and you want to go off on your own little frolic because you believe that what your understanding is is superior to that of the rest of us mere mortals, and that really we should be bowing down in deference to your superior intellectual ability. And when it is that we want to explain something and we show you that there is fault in what it is that you are saying, we are met with the sort of discourtesy and disrespect that you just displayed to me. Now, is that the way that we're going to keep conducting this matter?

DR KIRKHAM: I'm doing my best, but I am finding this - I'm not going to pretend I'm not finding it a frustrating process. I mean - - -

HIS HONOUR: Well, when it is that you don't know what you're talking about, close your mouth and open your ears. That would be the biggest help. Okay. Because I have dealt with these sorts of matters very much for the last 10 years. I would like to think I know what I'm talking about when I'm talking about pleadings. But where it is - and I'm used to dealing with self-represented litigants all the time, but I do not get the level of disrespect from them that I get from you. And it's not a situation with which I really will put up with anymore. Okay.

And I know it may be hard, but you need to actually listen instead of being, as it were, pig-headedly adamant that you are right and we're wrong. And anything that doesn't fit within your particular worldview is because of the boys club or the lawyers club getting together to exclude you. Okay. That's where this disrespect is all coming from, because you can't get that out of your head. So start listening to me for a change. Okay. If that is what you want to plead, you need to plead that. "I was employed as a lecturer by Monash university from this particular date. In the contract of employment that I have, it was stated at whatever paragraph that my employment was covered by the Monash Enterprise Agreement."

...

DR KIRKHAM: I will getting there. I will be getting there. So my next point is - - -

HIS HONOUR: Well, I know you are, but, you know, Christmas is coming as well. I mean, my goodness - - -

DR KIRKHAM: I mean, it's just - - -

HIS HONOUR: You know, if you can't get to the point, you know - my goodness, you know, Abraham Lincoln, 272 words for Gettysburg Address, and after that, we knew exactly why, despite all of the carnage that has been wrought in the Civil War, that it was still worth continuing. You, you've given me 173 pages here, 68 pages here, another 800 pages somewhere else, and I still cannot understand what it is that you are saying as to why it is your statement of claim is appropriate.

...

HIS HONOUR: No, no. Okay, because I tell you what - I tell you what, if you show that to me and I rule against you, then that will be the end of your submissions, okay? You want to do it? Because I've had enough of this, Mr Kirkham - Dr Kirkham. Had enough. You are wasting my time. You are wasting my time. You refuse to get to the point. You cannot get to what it is that I want to - - -

DR KIRKHAM: The Queensland Court of Appeal has determined that QCAT is a court of the State often referred to as a Chapter III court, which means it can exercise judicial power to determine matters - - -

HIS HONOUR: It's not Chapter III of the Constitution. It's not chapter III of the Constitution of Australia. My goodness gracious me. My goodness gracious me.

DR KIRKHAM: But the point is it can do - - -

HIS HONOUR: It's not a chapter III court of the Constitution of Australia. My goodness.

DR KIRKHAM: Look, it's just that you've become so - - -

HIS HONOUR: You are the epitome of the phrase that a little bit of knowledge is a dangerous thing, Dr Kirkham. You have totally misunderstood, totally misunderstood what is written there, but you believe it with such authority that you have convinced yourself that, therefore, you are right and everyone else is wrong. That sums up where we are and why we are here and why we are not getting to the nub of the issue that is before this court, but, you know, I've got the rest of the afternoon, so if you want to waste my time, go ahead, but I am only interested and I'm only going to be paying attention to anything that you say as to the issue here, which is why this statement of claim is one that complies with the rules and should have nothing struck out of it, or if there is something to be struck out of it, nothing that would mean that there was no - sorry, that there was no cause of action identified. So that's the only issue. That's all I want to hear you on. You can talk till the cows come home. I am not paying attention to anything that does not relate to that point. So away you go.

...

DR KIRKHAM: Okay. All right. Let's assume that I'm incompetent with the structure. Let's put it that way. So if I may, can I begin by imagining, if I may, that Monash - it is only Monash as a defendant, and then we will come to the others. I think that would be the easiest way for me to try and explain it to you. I'm just trying to reduce complexity as much as I can. But there is - I've called it appendix A. I appreciate that you - that, like ..... you think that's inappropriate. I did also reference it in paragraph 2. It's a structural thing. My attempt was to be concise, and probably I've been too concise. But I can - - -

HIS HONOUR: Your attempt was to be concise, 173 pages later. My goodness, what would we have been if you hadn't been concise? We would be up to, what, 3416 pages?

...

HIS HONOUR: Okay, so you know what the law is, so, go on. Good. Educate me.

DR KIRKHAM: All right. You can correct me if I get it wrong.

HIS HONOUR: I've only done it for 10 years, so - - -

DR KIRKHAM: Okay.

HIS HONOUR: I'm not a PhD in whatever you are a PhD in, so I have to bow to your superior intellectual abilities, so go on. You tell me what the law is.

...

1. The hearing was adjourned to the following day. At the commencement of the hearing on the next day, in substance, the applicant made an application for the primary judge to recuse himself in the following exchange:

DR R. KIRKHAM: Good morning, your Honour. So ..... I've got this, but I've done some thinking overnight. I don't think it's necessarily sustainable for you to continue hearing these proceedings after what was said yesterday.

HIS HONOUR: Sorry?

DR KIRKHAM: ..... I mean, look, after some of the comments made yesterday, unfortunately - - -

HIS HONOUR: Well, what comments?

DR KIRKHAM: Well, you commented on the merits. You made comments about me personally.

HIS HONOUR: Sorry - - -

DR KIRKHAM: I - - -

HIS HONOUR: - - - exactly what it is do you say that I said?

DR KIRKHAM: For example, you were heavily critical about various stereotypes that you believe that I met as a litigant in person, including wanting to go to war with the legal system, that I believe that it was some kind of cabal of - not quite word for word, your Honour, but - of, you know, judges ..... litigants in person. I don't believe that at all. But if - unfortunately, one of the issues in the underlying case was I was sacked for working with ..... on people doing ..... the sort of research that you disapprove of.

HIS HONOUR: What? What on earth are you talking about that I would disapprove of? What are you talking about? You've got no idea about what I approve or disapprove of. I've given you nothing to tell you what my personal beliefs or anything are. This is a decision that is based solely upon principles of law. How dare you try and insinuate that I have brought in personal biases or prejudices to what it is that I am doing here today.

1. If nothing else, in that exchange, the primary judge arguably made a statement of prejudgement about the application for recusal.
2. An intermediate appellate court dealing with allegations of apprehended bias, coupled with other discrete grounds of appeal must first deal with the issue of bias. If that ground is made out then the matter before the primary judge must be reheard irrespective of whether or not the primary judge made any of the other asserted errors: Concrete Pty Limited v Parramatta Design and Developments Pty Ltd [2006] HCA 55; 229 CLR 577 at [2] (Gummow ACJ), [117] (Kirby and Crennan JJ), [172] (Callinan J). Although the disruption and dust of the conflict grounds are distinct from the reasonable apprehension of bias grounds there is an evident overlap between these grounds. Logically, the three substantive grounds set out earlier in these reasons should be dealt with before any other grounds of appeal. Having regard to the overarching purpose of the civil practice and procedure provisions and the respondents' objections to the competence of the proposed notice of appeal, it is appropriate to adopt the same approach to the application for leave to appeal. There is sufficient merit in those grounds to justify granting leave to appeal without considering the merits or competence of the other grounds. For similar reasons, that was the manner in which Rangiah J approached the question of leave to appeal in Gambaro v Mobycom Mobile Pty Ltd [2019] FCA 910 at [27]- [29].

1. There are sufficient prospects of success in the three grounds of appeal identified earlier in these reasons to warrant extending the time within which the applicant had to apply for leave to appeal. Although the primary judge's orders were interlocutory and involve matters of practice and procedure the practical effect of the orders was to dismiss the applicant's claim. The risk of injustice that would result from refusal of leave and the prospects of success of the identified grounds is sufficient to warrant the grant of leave to appeal on those grounds.
2. The applicant submits that, adopting the approach of Rangiah J in Gambaro (at [30]), due to the nature of the issues raised, the appeal should be heard by a Full Court. The respondents submit that the relevant procedural fairness grounds raise no novel point of principle and that the appellate jurisdiction of the Court should be exercised by a single judge in accordance with the usual position for appeals from the Federal Circuit Court under s 25(1AA)(a) of the Federal Court Act.
3. Grounds of appeal raising allegations of bias or a reasonable apprehension of bias on an appeal from a judge of the Federal Circuit Court are serious in nature. Depending upon the circumstances and the nature of the allegations of bias or apprehension of bias, it may be appropriate for an appeal to be heard by a Full Court. It is also relevant that the civil practice and procedure provisions must be interpreted and applied and any power conferred by them must be exercised in the way that best promotes the overarching purpose described in s 37M of the Federal Court Act. In that context, s 25(1AA)(a) reflects that the objectives of the overarching purpose include the efficient use of the judicial and administrative resources available for the purposes of the Court and the efficient disposal of the Court's overall case load.
4. In this case, the nature of the alleged grounds for a reasonable apprehension of bias concern the manner in which the hearing was conducted and not personal interest or propriety of the primary judge. Further, the applicable principles concerning reasonable apprehension of bias are well-established and no new or novel point of law is raised in the grounds of appeal. Having regard to these matters, in the circumstances of this case, I do not consider it appropriate for the appellate jurisdiction of the Court to be exercised by a Full Court.

I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Feutrill.

Opinion: s 76 of the Evidence Act 1995 (Cth) - the paragraph(s) are submissions, not evidence

Opinion: s 76 - the paragraph(s) are submissions, not evidence

Opinion: s 76 - the paragraph(s) are submissions, not evidence

"Having been misinformed by the Court as to the orders it was making and the attempt to later claim summary judgment..."

Opinion: s 76 - the paragraph(s) are submissions, not evidence

Opinion: s 76 - the paragraph(s) are submissions, not evidence

Irrelevant: s 55

Irrelevant: s 55