Kirunda v Commissioner of Police, New South Wales Police Force

Assessment of the prospects of the applicant's proposed grounds of appeal

Grounds 2(f) and 5: denial of procedural fairness 64 The applicant submitted that he had been denied procedural fairness by the primary judge. He relied upon an index of the transcript of the hearing on 3 May 2016 in the FCCA. He submitted that he had been subjected to excessive interruption by the primary judge, "sustained - cross-examination" throughout his submissions and "pejorative commentary". 65 Some of the relevant principles which can arise when a litigant in person makes such a complaint of procedural unfairness are set out in the Full Court's judgment in SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; 216 FCR 445. Useful guidance is also to be found in the Court of Appeal's decision in Hamod v New South Wales [2011] NSWCA 375 and in Mortimer J's observations in MZAGE v Minister for Immigration and Border Protection [2016] FCA 630 at [32] and [35], where her Honour said: 32 As the Minister correctly submits, the Federal Circuit Court's obligation was to give the appellant a reasonable opportunity to be heard: see Wyman v Queensland [2015] FCAFC 108; 235 FCR 464 at [43], citing Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597 at [40]; Scott v Handley [1999] FCA 404; 58 ALD 373 at [30]. The nature of that obligation is not altered because a person is not represented by a lawyer, although its content may change in a given case. Where a person is self-represented, the Court has an obligation to ensure that the person suffers no meaningful disadvantage in the conduct of her or his case because she or he does not have the skills or knowledge of a lawyer. However, the Court must remain impartial and cannot conduct the case for the self-represented person. Nor does the fact of being self-represented relieve a party from having to prove what is necessary to be proved in order to make out a claim. I have set out my opinion on how these responsibilities should be balanced, accepting that is a difficult task, in MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392 at [59]-[77]. … 35 Not all self-represented litigants have the same kind or level of disadvantage. They are not a single category of people, with common characteristics. A host of features - level of education, health, familiarity with the legal system, competency in English, personality, access to support or assistance from others - combine to require individual assessment by the court in each case of what level of assistance and information a self-represented litigant requires, and what level of compliance with court processes and rules can be expected. So it is also with an assessment of what constitutes, in the circumstances of a particular case, a reasonable opportunity to be heard for the purposes of ensuring procedural fairness is afforded. (emphasis in original). 66 In my view, the applicant's proposed procedural unfairness case is distinctly weak. Although, as the transcript confirms, he was interrupted numerous times by the primary judge, I consider that these interruptions were directed to seeking to have the primary judge better understand his case. The applicant was not prevented from presenting his case. It is notable that, on several occasions, the primary judge went out of his way to ensure that the applicant was able to present his case, including by granting several brief adjournments during the course of the hearing, as is recorded in pages 47, 50, 72, 78 and 79 of the transcript. Moreover, on numerous occasions, the primary judge put to the applicant what he understood to be the applicant's submission and asked that the correctness of his understanding be confirmed. The applicant's claim that he was unable properly to present his case cannot be reconciled with the fact that the hearing of his interlocutory applications took the entire day and the transcript of the hearing totals almost 100 pages. Each case must necessarily turn upon its facts, but having reviewed the transcript carefully, I do not consider that there is arguable substance in the applicant's complaint of procedural unfairness.

Grounds 2(a), (b) and (c): self-represented status 67 The applicant complains that the primary judge made erroneous findings of fact in [112]-[114] by failing to take into account that he was self-represented and had an inadequate knowledge of litigation procedure in the FCCA, as well as suffering from serious medical conditions which affected his ability to conduct his case. He complained that erroneous findings of fact were made in [109]-[11] and [139]-[140] by the primary judge's failure to take into account the fact that he had other proceedings on foot as a litigant in person in respect of his worker's compensation claims. 68 There is no arguable substance in these complaints in circumstances where it is patent that the primary judge was well aware of the fact that the litigant was representing himself. It is also evident that, despite this fact, the primary judge gave considerable weight to the fact that the applicant had legal qualifications (see, for example [116] of the reasons for judgment where the primary judge referred to the evidence which established the applicant's legal training, including the fact that he had worked for the respondent as an acting legal officer and had completed practical legal training). In the light of these matters and in light of what I have said at [52] above, it was reasonably open to the primary judge to make the findings which he did and I do not consider that the applicant has reasonable prospects under these grounds. 69 As to the applicant's involvement as a litigant in person in the worker's compensation proceedings, it is clear that this matter was also considered by the primary judge, as is reflected in his references to those proceedings in [130]-[135] and [137]-[140]. The primary judge found that, by initiating proceedings in respect of his worker's compensation claim and complaining again to the AHRC, the applicant effectively set in train separate processes for seeking compensation from the respondent and then gave priority to his worker's compensation claim, which did not provide a plausible explanation as to why he delayed in reinstating his proceeding in the FCCA. I see no arguable error in the primary judge's approach and findings.

Grounds 2(e) and (g): opportunity to amend pleadings and failure to apply beneficial construction 70 The applicant relied on other cases in which self-represented litigants were given leave to amend a statement of claim. He complained that "the role of the court is to prevent the destruction of the unrepresented person's case by the traps which our adversary procedure offers to the unwary and untutored party". 71 The Court has an obligation to ensure that all parties in a hearing receive a fair trial. The applicant's reliance upon authorities relating to re-pleading a case have little if any relevance to the applicant's circumstances, where he was seeking to have his substantive proceedings reinstated after they had been dismissed for his non-attendance. The relevant principles are quite different, as is reflected in the primary judge's summary in his reasons for judgment at [22]-[30]. The applicant has failed to demonstrate any arguable error in his Honour's summary of those principles or in their application to the particular facts of his case. 72 The applicant also complained that the primary judge failed to take into account the reasonableness of the applicant's belief that it was appropriate to communicate directly with the Registrar on 16 February 2015 in seeking an adjournment. He referred to the Notice published by the FCCA on the topic of practitioners communicating with judges' chambers. 73 The document does not assist the applicant. It says nothing about a litigant in person making an ex parte request to a Registrar to have a proceeding adjourned. In any event, as the respondent pointed out, the applicant's failure to make a formal application for an adjournment was not material to the primary judge's reasoning for finding that no reasonable explanation had been provided by the applicant for his non-attendance at the hearing scheduled for 18 February 2015. 74 In my view, the applicant's reliance upon authorities concerning the beneficial construction of remedial legislation is also misguided. The primary judge's task was to resolve the issues before him having regard to relevant provisions of the Federal Circuit Court of Australia Act 1999 (Cth) and the FCCRs albeit in the context of substantive proceedings raising complaints of unlawful discrimination under the RD Act. I do not consider that the applicant has identified any arguable error in his Honour's construction and application of the relevant provisions of that material.

Grounds 3(c)-(f) and 7: costs order and public interest issues raised 75 The applicant contended that the primary judge erred in failing to address and determine the legal authorities and submissions relied upon by the applicant on the issue of costs. He said that these matters were set out in [25] to [53] of his outline of written submissions dated 20 April 2016 in the FCCA which was annexed to his affidavit of 2 December 2016. In brief, the applicant submitted below that the respondent had engaged in "misconduct or unmeritorious or disentitling conduct" which should have displaced the normal rule that costs follow the event. The relevant conduct was described by the applicant as involving "commission of criminal offences by the Respondent or members of the Respondent or alternatively, wilful disregard of obligations imposed by legislation…", including its handling of its applications for access to information under the GIPA Act. He claimed that the respondent had acted in breach of the State Model Litigant Policy for civil litigation. The applicant also contended that his case raised matters of public interest over and above his private interests. 76 The primary judge's reasons for declining to set aside the earlier costs order are at [238]-[250] of the reasons for judgment. His Honour was well aware of the authorities relied upon by the applicant and his submissions. Indeed, at [239] the primary judge indicated that their extensive nature was inconsistent with the applicant's assertion that he had either no or limited legal acumen. 77 The primary judge concluded that the applicant had not established any basis for departing from the usual rule that costs should follow the event. His Honour directly addressed the applicant's claim that the respondent had engaged in misconduct and criminal conduct, describing those claims as "very serious". It was reasonably open to the primary judge to find that the claims simply reflected the applicant's "subjective perceptions". He described as "fanciful" the applicant's allegations of criminal conduct and conspiracy from unknown persons, such as those parking their cars across the street from the applicant's house. In my view, this proposed ground of appeal does not have reasonable prospects. 78 In support of these particular grounds relating to the setting aside of the costs order, the applicant also complained that the primary judge erred in failing to give reasons for his findings at [117]. That paragraph contains a summary of the primary judge's reasons for concluding that the applicant had failed to provide a reasonable or satisfactory explanation for his non-appearance on 18 February 2015. The applicant contended that the reference in [117] to "[f]or the reasons set out above…" disclosed error because, he contended, no reasons were given. In particular, he referred to matters which were brought to the Court's attention concerning his unrepresented status and other matters relevant to his capacity to present his case. As I have already indicated, I do not consider that there is any arguable error in respect of the primary judge's findings concerning the fact that the applicant was a litigant in person. The primary judge gave little or no weight to the applicant's claims regarding the significance of his status as a litigant in person for reasons which are set out at some length in [115] and [116] of the reasons for judgment: 115 This assertion must be seen in light of other material before the Court. Dr Smith reports that (annexure "A" to the applicant's affidavit of 3 September 2015): Mr Kirunda came to Australia as a student in 2001. He has partly completed a Master of Business Administration from the University of Technology in Sydney. He also has a graduate diploma in Australian Law from UTS Sydney as well as a graduate diploma in legal practice, also from UTS Sydney. In 2010 Mr Kirunda obtained a Masters of Laws from the University of Sydney. Mr Kirunda has had wide experience as a solicitor. He has also conducted legal research and assisted individuals in victims compensation and Administrative Appeals Tribunal matters. He has worked as a legal office [sic] for the Office of the General Counsel of NSW Police Force and undertaken work with the criminal records section of the NSW Police Force." 116 Further, the applicant's Points of Claim make various references to his having worked as an acting legal officer for the respondent (see for example at page 2). Various documents attached to his complaint to the AHRC make references to the applicant having completed legal qualifications in NSW, including practical legal training (see for example at page 7 of 7 in the accompanying statement to his complaint dated 13 August 2012). One of the applicant's complaints to the AHRC was that he was treated less favourably than other legal graduates in promotion opportunities, and even further, that he had performed tasks of preparing "legal advice" (see item 4 of the applicant's "summary" to the AHRC dated 28 February 2013). 79 In my respectful view, the primary judge provided brief, but sufficient, reasons for refusing to disturb the costs order made on 18 February 2015. The applicant does not have reasonable prospects of success with these grounds.

Grounds 1 and 4: reasonable prospects and reinstatement 80 The applicant's reliance upon Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 at 943-944 in support of his contention that, if his claim was not adequately expressed, he should have been given leave to file an amended pleading reveals a misconception which permeates his case. In particular, he appears erroneously to have assumed that the same principles apply to the striking out of a pleading or the summary dismissal of a case as to an application to reinstate a case which has been dismissed for non-attendance. The principles are not the same. One, but not the only difference, is that the applicant carries the onus in persuading the Court to reinstate his claim. 81 The applicant also complained that the primary judge erred in his fact finding in [156], [203] and [204] of the reasons for judgment. In support of that contention, he complained that the respondent had failed to respond to a subpoena served on it by him on 14 September 2014, which requested "detailed information which would assist [the applicant] in establishing the facts to prove my claim". 82 The difficulty with this ground is that the primary judge's assessment of the prospects of the applicant's prospective case primarily turned on his Honour's analysis of the Points of Claim. His Honour acknowledged that the applicant had filed evidence which was relevant to the prospects of the substantive application (see [124]) and his Honour took that material into account in various places, such as at [127]. His Honour then explained at [143] that the merits of the applicant's substantive case had to be understood in the light of his Points of Claim. The pleadings were analysed at some length by the primary judge at [143] to [208]. As is evident from that material, a matter of particular concern to the primary judge was the failure of the applicant to demonstrate in the Points of Claim a nexus between the alleged conduct of the respondent and the applicant's race. The primary judge found that the requisite causal nexus was absent in respect of the applicant's claims of unlawful discrimination, victimisation and bullying or harassment. After summarising some parts of the Points of Claim relating to these matters, the primary judge expressed the following conclusion at [156]: On any plain reading of these paragraphs, there is nothing to suggest any connection between these events, even if it were to be accepted that they occurred as the applicant asserts, and the applicant's "race". Before the Court, the applicant's explanation was that he had a "belief" that this was the case. That is not sufficient to say that his claims have reasonable prospects of success in these proceedings. Importantly, there was no indication from the applicant that there was any other material available, which he had not presented to the Court, to provide any such indication (however, see the discussion about [51] of the Points of Claim below). 83 The primary judge then concluded at [161] that the applicant's "belief" lacked any reasonable or rational basis, having regard to the material presented by him at that time. This is a plain reference to the further evidence which had been filed by the applicant subsequent to the orders made on 18 February 2015 and in support of his application to have his proceeding reinstated. Such material was taken into account. 84 The primary judge also identified numerous other deficiencies in the Points of Claim (see, for example, [166], [170], [175], [178], [185], [189], [190], [191] and [195]ff). 85 At [192] of the reasons for judgment, the primary judge addressed [51] of the Points of Claim, which related to the applicant's complaint that he had not been promoted and was treated less favourably than someone with similar qualifications who was not of his race. Reference was made in [51] of the Points of Claim to particulars being given of the jobs for which the applicant had applied after subpoenaed documents were obtained. The applicant complains that it was erroneous of the primary judge to make the findings that he did in [156], [203] and [204] in the absence of the respondent's response to that subpoena. 86 The primary judge dealt with the issue of the subpoena in [193], in the context of the applicant's argument that it was not open to the primary judge to find that this aspect of his case had no reasonable prospects of success until he had an opportunity to provide further particularisation based upon the information he expected to be given under the subpoena. At [195], the primary judge said that, absent the last sentence of [51] of the Points of Claim, the paragraph did not have sufficient prospects of success to favour this particular part of the Points of Claim being reinstated. He emphasised that there were inadequate particulars to the relevant allegations when the Points of Claim were filed on 19 September 2014. Significantly, the primary judge then emphasised in [195] that he was not dealing with an application that the Points of Claim be summarily struck out. Rather the applicant was seeking the reinstatement of his case, including in respect of [51] and he conferred that he should the opportunity to have those allegations considered and determined at a final hearing. The primary judge did not accept those contentions. He explained that this was because he considered that the applicant had had a reasonable opportunity to prosecute his case and instead focused on his worker's compensation case. The primary judge found that the applicant had not explained why he had been prevented from progressing his case in respect of the allegations in [51]. The primary judge was not satisfied that the applicant had offered any acceptable explanation as to why he had been unable to give "relevant substance to [51] of the Points of Claim in the time that has been available to him to do so", with the consequence that the primary judge was unable to conclude that [51] had some prospects of success (see [197]). The primary judge made clear that he considered that none of the further material put forward by the applicant in his various affidavits indicated that he could mount a reasonable case with some prospects of success in relation to the "bare and unparticularised assertions" in [51] of the Points of Claims. 87 As to the applicant's reliance on the respondent's lack of response to the subpoena, the primary judge expressly found at [200] that the applicant had offered no satisfactory explanation as to why he had not pressed the outstanding subpoena in the 16 months since his proceeding was dismissed, nor in the 8 months since he had filed his application in his case. Moreover, the primary judge found that he thought it reasonable to expect that the applicant himself would have known which jobs he had applied for and nothing advanced by the applicant indicated that there was any expectation that the subpoenaed documents would provide any further basis to give particularity to his bare allegations that he was treated less favourably (see at [203]). 88 Having regard to all these matters which involve findings made by the primary judge which were reasonably open to be made, I do not consider that the applicant has reasonable prospects of challenging the primary judge's reasons concerning the deficiencies in [51] of the Points of Claim and the applicant's failure to pursue the unanswered subpoena. 89 The applicant also complained that the primary judge had wrongly applied the principles in Charles v Fuji Xerox Australia Ltd [2000] FCA 1531; 105 FCR 573 (Fuji Xerox) in finding at [184] and [185] that some of the applicant's pleadings in his Points of Claim were beyond the scope of his complaint to the AHRC as terminated. This had the consequence that the affected paragraphs of the Points of Claim were put to one side by the primary judge in assessing the prospects of success of the applicant's substantive proceeding. 90 The relevant paragraphs of the Points of Claim are [45] to [48], which relate to the applicant's request for information in February 2013 and his claim that he had been victimised in relation to the processing of his leave entitlements, and bullying in relation to the service of documents at the applicant's home directing him to attend a medical appointment. 91 The applicant has not persuaded me that he has an arguable case that the relevant findings by the primary judge were not reasonably open to be made. His Honour plainly appreciated that, under s 46PO(3)(b) of the AHRC Act, there need not be exact symmetry between the allegations raised in Court and those previously put before the AHRC, but the pleaded matters must arise out of the acts, omissions or practices identified in the complaint to the AHRC (at [182]). No arguable error has been demonstrated in respect of the primary judge's identification of the relevant principles or their application to the relevant pleadings and circumstances of the applicant's case, including his complaint to the AHRC.

Ground 6: review of costs estimate 92 The applicant contended that the primary judge erred in the following three respects: • failing to adjudicate on the applicant's evidence that his circumstances had changed because his house sale was shortly to be finalised and he could raise $2,000 as security for costs; • failing to give reasons for his finding at [225] that the applicant's psychological and physical medical conditions were not sufficient bases to extend time; and • making an erroneous finding at [228] that there was no need to analyse the Registrar's bill of costs prior to filling out the relevant form as it was unreasonable to be expected to challenge a document that had not been analysed by the applicant. 93 As to the first of those matters, as noted above, the primary judge's reasons for refusing to set aside the earlier costs order as set out in [238] to [244]. Any error arising from the primary judge's failure directly to address the applicant's evidence regarding his changed circumstances and capacity to provide security for costs is immaterial having regard to the primary judge's stated reasons for not disturbing the costs order. In particular, the primary judge found that the applicant had not established any basis for departing from the usual order of costs following the event. The applicant's capacity to pay security for costs has no bearing on the matters identified by the primary judge in declining to disturb the costs order. 94 As to the second matter, it is simply incorrect for the applicant to assert that the primary judge failed to give reasons for his findings concerning the applicant's claimed psychological state and lack of knowledge. The primary judge made a cross-reference in [225] to the reasons given earlier as to why he rejected those matters. This is an apparent reference to his Honour's detailed analysis and findings concerning the relevant evidence and submissions at [34]-[49], [73]-[74], [104] and [107]-[111]. 95 As to the third matter, the primary judge explained why he did not accept the applicant's claim as to why he could not challenge the Registrar's estimate of costs within time. His Honour found that the applicant had provided no reasonable or satisfactory explanation for not meeting the 21 day time period (at [227]). In particular, at [228] the primary judge highlighted that the relevant objection form (Form 128) did not require any detailed analysis of the bill of costs but simply required sufficient detail to notify an objection. His Honour concluded at [229] that, because the applicant was able to attend to drafting and filing an affidavit and his application in the case during the relevant period, he could not accept that the applicant was incapable of filling out Form 128. No arguable error has been presented in relation to these findings. 96 For these reasons I consider that ground 6 has no reasonable prospects.

Ground 8: relevance of medical evidence 97 The applicant complains that the primary judge misstated the effect of Dr Smith's report dated 16 April 2014, by omitting reference to evidence that he would only be able to return to work provided his work-related issues can be appropriately resolved. It is difficult to see how any such error would be material. That is because, first, the primary judge plainly acknowledged that the applicant's work-related issues may have had an affect on his mental state and condition (see, for example, [36] of the reasons for judgment). Secondly, and perhaps more significantly, any such error would not affect the primary judge's primary finding that Dr Smith's report did not address the applicant's mental condition as at the time of the hearing (18 February 2015), in circumstances where it was dated 16 April 2014. 98 The applicant also complained that the primary judge erred in [41] and [43] when he concluded that there was no other evidence to establish that his medical condition, as identified and explained by Dr Smith as at 16 April 2014, continued as at either December 2014 or February 2015. As the primary judge emphasised, however, Ms Hidalgo's report, dated 17 April 2014, reported on the applicant's psychological condition as at that date, and not as at December 2014 or February 2015. Ms Hidalgo's brief letter dated 23 December 2014 described in broad terms the applicant's then current treatment, but the primary judge gave it little weight (see [12] above). As is made plain at the end of [43], these findings were made by the primary judge in response to the applicant's claim that he was having difficulties with his attention span, but there was no persuasive evidence that this difficulty continued at the relevant times. No arguable error has been demonstrated. 99 The applicant also complained that the primary judge erred when he stated in [41] that his employment had ceased as at February 2015, when in fact it terminated on 30 June 2015. It is important to note that the primary judge referred to the applicant's employment with the respondent having "ceased" as at February 2015. It is true that the employment was not terminated until 30 June 2015, but it remains the case that the applicant had been absent from work from February 2013. In that sense, his employment had "ceased" for all practical purposes as at February 2013. No arguable error is raised in respect of this finding.

Ground 9: no reasonable explanation for non-attendance 100 The applicant challenges the primary judge's finding at [82] that, on 29 January 2015, the applicant changed his return travel dates to Australia to May 2015. The primary judge viewed this as significant because he concluded that, as of at least 29 January 2015, the applicant knew that he would not be returning to Australia for the scheduled hearing on 18 February 2015, but he delayed until 16 February 2015 in alerting the Registrar. The applicant sought to support this complaint by reference to documentary material which he subsequently obtained from Emirates which confirmed that his flight itinerary of 21 May 2015 was altered because of changes made by him on 12 or 13 May 2015 and not 29 January 2015. This evidence was not before the primary judge. 101 The applicant drew attention to what he described as his "oral evidence" to the primary judge that he had made a phone call to the airline during the lunch break in the hearing in the FCCA and that this clarified the email dated 29 January 2015 (which lacked any itinerary). He told the Court that he had called Emirates in the lunch break and they had confirmed that the booking for 22 May was made on 12 May. 102 In my view, the applicant has no reasonable prospects in relation to this matter. First, what is recorded in the FCCA transcript at page 92 is not "oral evidence" but rather is in the nature of a submission which was made by the applicant in his address in reply. Secondly, as the primary judge pointed out at page 92 of the transcript, evidence could not be taken from the applicant at that stage of the proceeding (at least without leave) and it had been made clear to the applicant at the outset that he had to tell the Court what material he was relying on. Accordingly, his Honour indicated that he was relying upon the information relating to the applicant's travel plans, including the email dated 29 January 2015 which was Annexure N to his affidavit of 29 April 2016. His Honour was entitled to take that view. 103 As noted above, the applicant also relied on an email sent by him on 21 May 2015 to a member of State Parliament, copied to an investigative journalist at the Sydney Morning Herald. The email was written shortly before the applicant left for Australia via Hong Kong and contained the following statement: Because of my ongoing litigation against NSW Police Force, I am anxious that some supposedly random incident or accident might happen to me as part of the campaign of psychological warfare against me or something worse like drugs being planted in my luggage or similar. 104 Little weight attaches to this document, written by the applicant himself, as establishing that he was prevented from returning to Australia in 2015 because of his fears. The document is entirely self-serving. 105 Nor am I persuaded that the applicant has identified any reasonable prospect of challenging the primary judge's findings concerning the applicant's concerns that he was being targeted. The applicant has identified no arguable error in respect of the primary judge's relevant reasoning in relation to this topic, including what is stated at [35] to [75] and [77] to [106]. 106 The applicant contended that the primary judge erred in not differentiating between the applicant's explanation of the reason for his inability to return to Australia to attend the hearing as opposed to his incapacity to attend and participate in the hearing. The basis for the distinction is difficult to understand, not the least because, as the primary judge noted in [73] of his reasons for judgment, the applicant himself in seeking an adjournment of the proceedings on 18 February 2015 explained that this was "due to deterioration of my ill-health making me unable to comply with previous orders of the Court, unable to return to Australia and unable to attend Court". 107 Finally, in respect of ground 9, the applicant complains that the primary judge erred in stating at [84]: This must also be seen in light of the opportunity to have possibly secured a different outcome (to that which occurred on 18 February 2015) if the applicant had made some relevant approach at an earlier time, even if it was to appear at the hearing of the respondent's AIC by telephone, and seek to explain his reasons for any adjournment. In all, I find that this second element does not provide a satisfactory explanation for the non-attendance. 108 The applicant complains that in fact he approached the issue of an adjournment at an earlier time, by seeking the respondent's consent to an adjournment on 30 December 2014, but it was rejected. His Honour was well aware of that approach. He made express reference to it at [61] and [65]. The reference to "relevant approach at an earlier time" is plainly a reference to the applicant leaving it until 16 February 2015 to contact the Court regarding his adjournment request and not, for example, arranging to appear by telephone. There is no arguable error to warrant a grant of leave.

Ground 10: significance of legal qualifications and experience 109 The applicant complains that the primary judge's findings at [113] to [117] were based on an erroneous assumption that a person with legal qualifications would not make any procedural error in relation to practice and procedure in the FCCA. He also complains that the primary judge failed to take into account that the applicant had only just found out the procedure for filing an application in a case in the FCCA after receiving advice from Justice Connect in August-September 2015, which he said he had explained in his affidavits below and in his oral submissions. 110 For the reasons given above, I do not consider that the applicant has reasonable prospects of challenging the primary judge's analysis and findings concerning the significance of the applicant's legal qualifications and experience.

Ground 11: failure to identify service denied 111 The applicant complains that the primary judge erred in his findings at [172]-[174] concerning the applicant's failure to identify in his Points of Claim the service being provided by the respondent with reference to the relevant legislation. The applicant contends that the services were identified in his complaint to the AHRC. The difficulty, however, is that the primary judge was correctly insisting that the services be appropriately identified in the applicant's Points of Claim. He held at [175] that they were not. I can see no arguable error in relation to this aspect of the reasons for judgment. 112 As to the applicant's complaint that the primary judge failed to take into account further oral submissions made by him at pages 17 to 24 of the transcript, those submissions do not relate to the omission in the Points of Claim to identify the relevant service. Rather, they relate to the primary judge's concerns regarding the lack of a causal nexus between the conduct complained of and the applicant's race.

Ground 12 113 In his outline of written submissions, the applicant said that he would develop this matter at the hearing. No submission was made by him at the hearing in relation to ground 12, nor did he identify to what matter this ground related. Accordingly, the matter can be taken no further. It takes sufficient prospects to warrant a grant of leave.

Conclusion 114 For these reasons, leave was granted to the applicant to adduce the further evidence as sought by him in his interlocutory applications filed on 17 and 21 March 2017. But the interlocutory application filed on 2 December 2016 seeking an extension of time and leave to appeal should be dismissed. 115 The applicant did not seek the costs of the 17 and 21 March 2017 applications. As to the 2 December 2016 application, as matters stated at present, there is no evident reason why the normal principle should not apply and the applicant be ordered to pay the respondent's costs as agreed or assessed. I will, however, give leave to the applicant to file written submissions within seven days hereof (not to exceed five pages in length) if he wishes to contend that some other order should be made as to costs. In the event that he does so within that time, the respondent has a further seven days to file and serve its written submissions not exceeding five pages in length. If there is a dispute, the matter of costs will then be determined on the papers. 116 Orders will be made accordingly. I certify that the preceding one hundred and sixteen (116) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths.