Kweifio-Okai v Australian College of Natural Medicine

Injunction application 9 The applicant requires leave to appeal from the decision and orders of the learned judge which were interlocutory (s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act)). 10 The factors to be applied in determining whether to grant leave to appeal are whether in all the circumstances his Honour's decision is attended with sufficient doubt to warrant its reconsideration and whether substantial injustice would result if leave were refused, supposing the decision to be incorrect (see DÉcor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399 and Kweifio-Okai v Royal Melbourne Institute of Technology [1998] FCA 1219 at 3). 11 Expressed slightly differently, leave to appeal will be granted where there is a reasonably arguable case that the decision of his Honour was affected by an appealable error and a grant of leave is necessary to remedy a substantial injustice (Re CSR Ltd (2010) 183 FCR 358 at [5]). Leave will more readily be granted where an interlocutory decision determines a substantive right as distinct from a matter of practice and procedure. All orders made by his Honour from which leave to appeal is now sought were matters of practice and procedure. The refusal of an interlocutory injunction is a matter of practice and procedure (see Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177 per Gibbs CJ, Aickin, Wilson and Brennan JJ and Trade Practices Commission v Santos Ltd (1992) 38 FCR 382 at 385-386 per Davies J). 12 The applicant has set forth two proposed grounds of appeal being a "denial of natural justice as a self-defending litigant" and "miscarriage of justice". No complaint is made about the legal test that the learned judge applied in dealing with the injunction application (see his reasons at [11]), as elucidated in Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 at 81-84 per Gummow and Hayne JJ. 13 On the prima facie test limb, the learned judge held at [16] that "the case advanced by the applicant in support of granting a mandatory injunction is, in my view, relatively weak". His Honour went on to say "I am not persuaded that, if the proceeding went to trial on the material presently advanced by the applicant, he would have a realistic prospect of success", even with the applicant having "the benefit of the reverse onus provisions" in respect of any proceedings under the Fair Work Act. 14 Moreover, his Honour at [16] considered that the form of the mandatory injunction(s) sought "may be regarded as internally contradictory and uncertain". Further, the learned judge at [17] addressed the balance of convenience question and concluded that it "tilts in favour of the respondent". It might be added to what the learned judge said that in the context of a mandatory injunction(s) being sought and where the prima facie case was held by the learned judge to be "relatively weak", that such factors also pointed to the balance moving further in favour of the respondent (see Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238 at [67] as to the latter factor). 15 As to how his Honour addressed the balance of convenience, he applied the correct test. Moreover, in the application of that test, no arguable error was identified by the applicant. First, the learned judge took into account that the applicant was "seriously incommoded by the loss of his employment" (at [17]). Nevertheless, his Honour concluded that the applicant had not provided any evidence about attempts to obtain alternative employment and had not deposed to his financial affairs and domestic commitments. That position remained the situation before me. His Honour was entitled to take into account such deficiencies in the applicant's evidence. No challenge was made by the applicant to any of that analysis. Further and contrastingly, the applicant's alleged prejudice was more than matched, in terms of the evidence before his Honour, by the prejudice that would be caused to the respondent if the injunction was to be granted. The respondent's Chief Executive Officer, Ms Carolyn Barker, deposed in her affidavit sworn on 13 July 2014 to the fact that, from her perspective, the relationship of trust between the parties had broken down and that the applicant had not demonstrated any ability to self-assess and accept advice and instructions of his superiors. Generally, according to her evidence, the applicant showed a refusal or propensity to refuse to cooperate with his supervisor and senior management. She also deposed to the fact that she "did not consider there to be any way to rebuild the relationship of trust". His Honour took into account all of these matters and no challenge was made to his Honour's approach in this respect. 16 Nothing was put before me demonstrating any error in terms of the factual matters or the conclusions reached by the learned judge on the evidence before him on the balance of convenience. 17 In summary, on the face of the learned judge's pellucid reasons, no arguable error of the type discussed in House v The King (1936) 55 CLR 499 at 504-505 per Dixon, Evatt and McTiernan JJ has been established in relation to his Honour's consideration of either limb of the relevant injunction test, or his overall exercise of discretion to decline to grant the injunction(s). Before me, the applicant asserted a number of errors said to have been made by the learned judge. Apart from alleged error 2 which I discuss below, none of them went to the central factual and legal issues that the learned judge considered in dealing with the injunction application.

Alleged error 1 18 First, it was asserted that it was an error for his Honour not to have given more time to the applicant to consider the sworn form of the affidavit of Ms Barker filed on behalf of the respondent. The sequence of events appears to be the following. On 20 June 2014, the learned judge made orders for the filing and service of further affidavit material on the interlocutory application. The respondent was required to file and serve its affidavit material by 10 July 2014. At 7.35 pm on 10 July 2014, the applicant was provided with an unsworn copy of Ms Barker's affidavit by email from the respondent's solicitors. The applicant was informed in the email that: The affidavit of Carolyn Barker is unsworn as Ms Barker is currently in a remote location. Ms Barker will swear her affidavit in its current form and we will produce the sworn version of her affidavit to the Court and yourself at the hearing next Tuesday. The affidavit was sworn on 13 July 2014 and the applicant was given a sworn copy on the morning of 15 July 2014 and told that the sworn form was the same as the unsworn version, which it was. The applicant before me said that he had decided to ignore the unsworn affidavit until the sworn one had arrived. That was a matter for him. But that hardly bespeaks either criticism of the respondent or error by the learned judge. Moreover, it is unclear whether the applicant ever sought any substantial adjournment on this aspect. Apparently, at the least he did assert before his Honour that he wanted limited time to consider the sworn affidavit. 19 This asserted error has no substance. I cannot discern any arguable error in how the learned judge addressed that matter or the discretion exercised by him to proceed notwithstanding the lateness of the sworn version.

Alleged error 2 20 Second, it was asserted that the learned judge was in error in proceeding to deal with the applicant's injunction application on the basis of taking into account one of the annexures that the applicant filed, being annexure GKO11 annexed to the applicant's affidavit sworn on 30 June 2014. The learned judge in his reasons at [3] refers to the applicant providing in relation to the complaints "a short written response". The applicant now asserts that annexure GKO11 was put forward in error and that a more detailed response (annexure GKO22 now and only before me) should have been before his Honour. 21 Assuming this to have been an error, it was the applicant's error and not one made by the learned judge. In any event, even if annexure GKO22 was before his Honour, I do not see how it would have changed his Honour's determination to refuse the injunction. Annexure GKO22 would at best have demonstrated triable factual issues, but his Honour was not making any definitive determination thereon. Moreover, my reading of annexure GKO 22 would suggest that Ms Barker's evidence (see [15] above) as to the breakdown of the relationship of trust may not have been overstated. 22 In my view, annexure GKO22 would have been unlikely to have changed his Honour's overall assessment of the prima facie case limb. Moreover, it had little to directly do with the balance of convenience question. In any event, I can discern no arguable error.

Alleged error 3 23 Third, it was asserted that the learned judge decided "the principal issue of my case" and that he was in error in doing so because he was unable to do so ahead of discovery, cross-examination and other such matters. 24 The learned judge did no such thing, as he made clear at [12]. No arguable error is disclosed. Complaint is also made concerning the orders for discovery, which is addressed later.

Alleged error 4 25 In the affidavit sworn by the applicant on 29 July 2014 and filed in the application for leave, he deposes that "issues of public interest" should have informed the granting of the injunction sought. As best as can be gleaned from the material, these matters go to the issue of whom the respondent might have employed in an "acting capacity" to replace the applicant, the advertising for such a replacement and the qualifications of such a replacement. None of this material shows any arguable error on the part of the learned judge. Further, some of this material appears not to have been before his Honour. In any event, none of this material directly addresses that part of the injunctive relief sought by the applicant which was, in essence, to have his contract renewed.

Alleged error 5 26 The applicant also deposes that "issues of national interest" should have been considered in granting the injunction. First, these alleged issues are expressed in disjointed and incoherent terms. Second, I am not satisfied that much of such material was before the learned judge. But in any event, even if it was, such material would not have assisted him and, moreover, does not disclose any arguable error on his part.

General 27 All of the above errors asserted by the applicant are said to fall under the headings of either a "denial of natural justice" or a "miscarriage of justice". None of them have any substance. No arguable error is disclosed in how the learned judge dealt with the injunction aspects of the interlocutory application. Moreover, no substantial injustice would be caused to the applicant if leave was refused, particularly given that the learned judge has made orders for a speedy trial to the benefit of, inter alia, the applicant. The applicant's affidavit material and the submissions he made to me were silent on this latter aspect.

Procedural orders 28 The draft notice of appeal also seeks to challenge the learned judge's procedural directions. The orders sought in the draft notice seek variations to paragraphs 3-8 of his Honour's orders. These orders were merely matters of practice and procedure for the learned judge to determine and were even on a lower scale of import than the decision to refuse the injunction(s). No arguable error has been identified in relation either to their making or their precise content. Moreover, no substantial injustice is or would be caused to the applicant if they were allowed to stand, even assuming that error was otherwise established. If the applicant can justify for good reason why these procedural directions ought to be altered, he can make further application before his Honour to modify them. 29 The applicant made submissions that the discovery orders should be set aside and that he had been denied the opportunity to put submissions before the learned judge seeking his desired categories of documents. He was not denied any such opportunity. Indeed, many of the categories of documents that he now seeks were not requested before the learned judge. In any event, he can now seek to have the discovery orders varied. The applicant would suffer no injustice if leave was refused. 30 The applicant also complained about the timing of the mediation ordered by his Honour. The applicant apparently wanted mediation before other procedural steps or at least many of them. The learned judge determined that mediation should follow after the other procedural steps. No arguable error is disclosed as to the learned judge's approach on this aspect. His Honour considered the applicant's submissions. The fixing of the time for the mediation was very much in the learned judge's discretion. The challenge to these procedural directions has no substance. Leave to appeal is also refused in relation to these interlocutory orders.

Costs 31 The respondent has sought costs against the applicant of and incidental to the applicant's application for leave to appeal. Section 570 of the Fair Work Act provides: 570 Costs only if proceedings instituted vexatiously etc. (1) A party to proceedings (including an appeal) in a court (including a court of a State or Territory) in relation to a matter arising under this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2) or section 569 or 569A. (2) The party may be ordered to pay the costs only if: (a) the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or (b) the court is satisfied that the party's unreasonable act or omission caused the other party to incur the costs; or (c) the court is satisfied of both of the following: (i) the party unreasonably refused to participate in a matter before the FWC; (ii) the matter arose from the same facts as the proceedings. 32 I proceed on the assumption that these proceedings, as now amended, and this application for leave to appeal are "in relation to a matter arising under" the Fair Work Act. 33 For completeness, there are two preliminary matters that should be addressed. First, given that the wording of s 570(1) was amended as at 1 January 2013 by Sch 10 of the Fair Work Amendment Act 2012 (Cth) to omit "exercising jurisdiction under this Act" and substituting "in relation to a matter arising under this Act", the observations in Construction, Forest, Mining and Energy Union v CSBP Ltd (No 2) (2012) 202 FCR 149 at [5]-[14] are no longer apposite; if they had otherwise been apposite, I would not have been bound by the strictures of s 570. Second, I treat the phrase "proceedings (including an appeal)" to embrace an application for leave to appeal (cf s 4 of the Federal Court Act). 34 The question is whether the applicant's application for leave to appeal was instituted "without reasonable cause". In AWU v Leighton Contractors Pty Ltd (No 2) [2013] FCAFC 23, the Court stated at [7] that "without reasonable cause" can be established if the relevant proceeding (in this case, the application for leave to appeal) had no reasonable prospects of success at the time it was instituted. Of course if that is the case, that only establishes that the jurisdiction to award costs is enlivened. The Court still has a discretion to refrain from making a costs order. In my view, the application for leave to appeal was made "without reasonable cause". The applicant did not advance any reasonably arguable legal or factual error made by his Honour. Further, the applicant did not grapple with what he was required to consider in an application of this type. Moreover, it is not as if the applicant was not informed in advance of the hearing before me of the issues that he ought not fail to address if his application for leave to appeal was not to be devoid of some prospects of success. The respondent's solicitors sent an open letter to him by email on 5 August 2014 informing him of the tests he had to consider. None of them were addressed by the applicant. 35 My jurisdiction to order costs is enlivened. Further, there is no good reason why I should not exercise my discretion to award costs in favour of the respondent. Moreover, the applicant's self-represented status ought not and does not change my assessment or the exercise of my discretion on this question (Bahonko v Sterjov (2008) 166 FCR 415 at [6]). The costs order sought by the respondent will be made. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beach.