Mazukov v University of Tasmania

Federal Court of Australia (Full Court)|2004-06-17|Before: Marshall J, Stone JJ

REASONS FOR JUDGMENT THE COURT: 1 This is an appeal from a decision of a judge of this Court made on 19 March 2003 in which the appellant's notice of motion seeking to quash a decision of Acting District Registrar Mussett made on 31 January 2003 was dismissed (Mazukov v University of Tasmania [2003] FCA 253). The appellant, Mr Mazukov (who appears in person), had sought a waiver of the requirement under O 62 r 46(3)(d) of the Federal Court Rules that a party lodging a notice of objection to a taxing officer's estimate of costs pay into the Litigants' Fund a prescribed amount (at the time, $750) as security for costs of taxation of the bill. Acting District Registrar Mussett refused to waive the requirement.

background 2 Mr Mazukov's obligation to pay the costs in question stems from orders made in the respondent's favour by Marshall J on 4 August 2000 and, following an unsuccessful appeal to the Full Federal Court, by the Full Court on 31 May 2002. The appellant sought special leave to appeal to the High Court of Australia. We note, however, that the affidavit of Andrew Benson Walker, affirmed on 21 May 2004, annexes a copy of a Certificate of Deemed Abandonment issued by the Deputy Registrar of the High Court in relation to that application. In these circumstances the appellant has exhausted all avenues of appeal from the costs orders made by Marshall J and by the Full Court. 3 On 21 October 2002, the respondent filed a bill of costs for taxation. Pursuant to O 62 r 46(1), District Registrar Parrott made an estimate of the total amount for which, if the bill were to be taxed, the certificate of taxation would issue. Both parties were advised of this amount. On 27 January 2003 the appellant attempted to file a notice of objection to the District Registrar's estimate and at the same time requested that the $750 security for costs be waived. The request for waiver of security for costs was rejected by Acting District Registrar Mussett on 31 January 2003. On 19 March 2003, the primary judge dismissed, with costs, the appellant's notice of motion seeking review of the Acting District Registrar's decision.

4 In her written reasons for decision, the Acting District Registrar summarised the submissions made by the appellant: '1. he has a current application for special leave to appeal to the High Court in which his main argument will be that he was given wrong advice and a wrong form by the District Registrar, and that this was the cause of his application before Justice Marshall being dismissed… 2. he is still a university student, that is - to some extent under the control of the respondent in the proceedings and he asks me to note the bill of costs was activated eight months after the last hearing in the case; 3. the bill of costs contains items which require close scrutiny: some may refer to another court case; some are not stated in clear and unambiguous language; some relate to tasks that could have been done by himself rather than the respondent; some "appear to be the result of omissions or mistakes on the part of the respondent"; some "appear to have been brought about by confusion generated by faulty communication between the respondent and the Federal Court"; 4. the assessor of the bill was the District Registrar who, Mr Mazukov says, was "instrumental in the development of the case". Mr Mazukov also notes that he has a current complaint concerning Mr Parrott, though he does not say to whom he made the complaint. (I assume that Mr Mazukov is here suggesting the possibility of bias on the part of the District Registrar in the way he assessed the bill); 5. the consequences of enforcing the bill would be quite severe for him (he refers specifically to restricted opportunities in the legal field when he completes his study); 6. he has made considerable efforts in relation to all aspects of the case - tried to obtain legal advice; followed the advice and instructions offered by officers of the court; attended all appointments and court hearings apart from the directions hearing before Justice Marshall, which he says he did not know about; 7. his efforts have been made under poor financial circumstances, when his only income has been a Newstart benefit.' 5 The Acting District Registrar discussed each submission in turn. She held that the allegations against Mr Parrott were 'vague and generalised' and did not provide evidence of any bias. She rejected as irrelevant the submissions concerning the High Court special leave application and Mr Mazukov's ongoing relations with the University. She held that neither Mr Mazukov's straitened financial circumstances nor the effort he put into the proceeding was sufficient in itself to constitute compelling circumstances. In so far as the submissions took issue with items in the bill of costs, she stated that Mr Mazukov was entitled to scrutinise it closely but only if he met the requirement for security. In short, the Acting District Registrar concluded: 'I find that Mr Mazukov's reasons for waiving the security for costs amount are not extraordinary, forceful or exceptional. Neither on their own nor in combination do his reasons exhibit that degree of "out-of-the-ordinariness" that in my view is required to justify waiving payment of the security for costs amount.'

The decision of the primary judge 6 In the hearing before the primary judge, Heerey J, the appellant raised two preliminary objections that are also raised on this appeal. First, the appellant contended that Heerey J should disqualify himself from hearing the matter because of apprehended bias. This submission rested on two grounds: that his Honour had a relationship with the respondent University as he was a graduate of that Law School; and that his Honour had previously rejected an application brought by the appellant against the Human Rights and Equal Opportunity Commission. Secondly, the appellant submitted that the matter should be transferred to another registry as he did not feel safe in the Tasmanian Registry. He alleged that he had been threatened by District Registrar Parrott. Justice Heerey rejected both claims. His Honour held that nothing in the appellant's claims provided grounds for apprehension of bias. His Honour was also satisfied that there was nothing to support the claim that Mr Parrott had behaved inappropriately and there was no other reason to move the litigation to another registry. 7 With respect to the substantive matter, Heerey J dismissed the application and it is convenient to quote in full his Honour's reasoning on this point at [15], [18]: 'The [Acting District] Registrar considered in detail the arguments advanced by Mr Mazukov. I will not repeat these. His arguments and the consideration the Registrar gave to them are set out in her written reasons. Mr Mazukov repeated his arguments on the appeal but this is a review of a discretionary decision and I am not persuaded that the Registrar erred in the exercise of her discretion. I am not satisfied that she took into account any irrelevant consideration or failed to take into account any relevant consideration … The motion will be dismissed.'

8 Order 62 r 46(3)(a) provides: 'A taxing officer may, in the absence of the parties and without making any determination on the individual items in the bill, make an estimate of the approximate total for which, if the bill were to be taxed, the certificate of taxation would be likely to issue.'

9 There are few decisions analysing the circumstances in which the Court will waive payment of security for costs required under O 62 r 46(3)(d). The leading decision is that of Spender J in Dudzinski v Kellow [2000] FCA 740 ('Dudzinski'); see also NAES v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1211 ('NAES') and Potier v Minister for Immigration & Multicultural Affairs [2004] FCA 520 ('Potier'). 10 In Dudzinski, Spender J held that although the waiver provisions in the Rules do not apply to payments required under O 62 r 46(3)(d) (security for costs not being a fee payable under the Rules), the general discretion, under O 1 r 8, to dispense with compliance with the requirements of the Rules applies to O 62 r 46(3)(d). That view was followed in both NAES and Potier. 11 It is not difficult to discern the purpose of O 62 r 46 as being to avoid the more expensive and protracted procedure of a full taxation; Fuller v Minister for Primary Industries & Energy [1998] FCA 377 ('Fuller'). The requirement for security for costs in subrule (d) is similarly apparent, being designed 'to strike a balance between the party liable to pay costs and the party who has obtained a favourable costs order'; Potier at [15]. It does so by providing 'a fund against which a party who has been unsuccessfully challenged in relation to an estimate … might apply their costs of attending the resultant taxation of the bill'; Dudzinski at [26]. As French J remarked in Fuller, 'A party objecting to the estimate does so at his own risk as to the costs of the process of taxation which he invokes'. We would add that the protection of the rule is especially important where the financial resources of the party seeking to challenge the estimate are in doubt. 12 In Dudzinski, Spender J held (at [37]) that, having regard to the purpose of the rule, 'any reasons proposed for waiving such a payment would have to be very compelling'. In Potier at [16] Stone J agreed with Spender J's conclusions in Dudzinski, although in neither case did the Court expand on the nature of compelling reasons other than as was inherent in the nature of each decision. 13 In Dudzinski and Potier, the applicants, as well as taking issue with the estimate and the bills of costs, also claimed that their financial resources were insufficient for them to pay the security amount and that to refuse to waive the obligation would unjustly prevent them from challenging the bills of costs. Mr Dudzinski also relied on his status as the recipient of a social security pension. In each case the Court regarded impecuniousness alone as insufficient to waive the requirement of security for costs. It was not considered a compelling reason and failed to take account of the purpose of the provision as set out above.

14 The notice of appeal set out the following grounds of appeal:

'Perceived bias; extended ultra vires; self-fettering account of relevant considerations not taken; irrelevant considerations taken into account; some errors of law; some errors of fact'.

In relation to the orders sought the notice of appeal requested:

'That the orders of both the Acting Registrar, Mrs Mussett and the Honourable Heerey J are set aside. If this wording of "order sought" is not correct by the legal standard, please note that in effect, I ask (seek) that: · my case is heard by a judicial officer outside of the sphere of influence of the University of Tasmania · the process is handled outside of the Tasmania Registry · I am allowed to challenge the Bill of Costs.' 15 The appellant also filed a supporting affidavit. Although sworn as an affidavit the document in fact contains written submissions, most of which address issues not relevant to the present appeal. In so far as they are relevant we shall address them in conjunction with the appellant's other written and oral submissions.

Allegation of bias 16 At the hearing of the appeal the appellant reiterated his allegation of bias or apprehended bias on the same grounds that he had put before the primary judge, namely that his Honour is a graduate of the respondent University and that he had previously decided a case in which the appellant was the unsuccessful applicant. Both of these grounds are rejected. 17 First, the mere fact that the primary judge is a graduate of the University of Tasmania does not involve any relationship of a type that might give rise to actual or apprehended bias. Such relationships are discussed at length in chapter 3 of the Guide to Judicial Conduct, published in 2002 for the Council of Chief Justices of Australia by the Australian Institute of Judicial Administration. Secondly, the earlier proceeding to which the appellant referred concerned a claim of unlawful discrimination against the appellant by a professor of law at the University of Tasmania and by the University itself. In commencing the proceeding the appellant had named the Human Rights and Equal Opportunity Commission as respondent. The primary judge held that the Commission was not the correct respondent and dismissed that application. The decision did not involve any imputation against the appellant or any determination of his credit as a witness. 18 In our view no 'fair-minded, lay observer' with knowledge of these 'material objective facts' would entertain a reasonable concern that the primary judge would not bring 'an impartial and unprejudiced mind' to bear on the question that his Honour was asked to decide; Trustees of Christian Brothers v Cardone (1995) 130 ALR 345 at 350. The primary judge was correct in refusing to disqualify himself.

'Extended ultra vires; self-fettering account of relevant considerations not taken; irrelevant considerations taken into account; some errors of law; some errors of fact' 19 The appellant's written submissions, filed on 18 May 2004, fail to address the grounds set out in his notice of appeal. Instead they expressly defer any submissions on whether his circumstances are 'very compelling' to the time of hearing. At the hearing of the appeal Mr Mazukov was not able to explain what he meant by these grounds of appeal. Apparently he had made some notes to prompt him in his oral submissions but was unable to find them. Nevertheless, Mr Mazukov made a number of submissions concerning the difficulties he experienced during the litigation. He referred at length to his financial problems, including his reliance on social security, and to his medical problems. He complained that he had raised these concerns with the Acting District Registrar and the primary judge but that both had failed to address them. It would seem that Mr Mazukov believes that these difficulties should be regarded as 'compelling circumstances' that would support a waiver of the obligation to provide security under O 62 r 46(3)(d). 20 Because Mr Mazukov's written submissions did not properly address any of the grounds of appeal, it was difficult for the respondent to provide meaningful submissions in response. It is probably for this reason that the respondent anticipated an issue that Mr Mazukov did not in fact raise. The respondent accepted that the primary judge was obliged to hear the appeal from the Acting District Registrar de novo andsubmitted that it was open to the Court to find that his Honour conducted a de novo hearing. It was further submitted that, even if the Court did not so find, it was open to the Full Court to remedy such an omission by making the appropriate findings on the evidence for itself.

21 A registrar's power to decide whether security for costs required under O 62 r 46(3)(d) can be dispensed with arises by delegation in accordance with s 35A(1)(g) of the Federal Court of Australia Act 1976 (Cth). Relevantly, s 35A(6) provides:

'The Court may, on application under subsection (5) or of its own motion, review an exercise of power by a Registrar pursuant to this section and may make such order or orders as it thinks fit with respect to the matter with respect to which the power was exercised' 22 In Jageev Pty Limited v Deane (1997) 72 FCR 398 ('Jageev') Davies J considered an appeal from a decision of a registrar dismissing an application under s 459G of the Corporations Law to set aside a statutory demand made on the applicant. His Honour held that there was a fundamental distinction between an appeal from a judge of the Court and an appeal from a registrar, commenting at 399: 'Although many matters are sent for hearing in the first instance before a registrar, it is beyond the jurisdiction of this Court to arrange affairs so that the decision of the registrar is equivalent to a decision of a judge. That is a constitutional problem which of course does not face State courts. The result is that … the Court must provide a rehearing on the merits of any matter which comes before a registrar and with which one of the parties to the proceeding is dissatisfied.' 23 Jageev was followed by Katz J in New Era Installations Pty Ltd v Don Mathieson & Staff Glass Pty Ltd (1999) 31 ACSR 53 and approved by a Full Court in Martin v Commonwealth Bank of Australia ('Martin') [2001] FCA 87 at [6] - [7]. 24 Justice Davies' conclusion in Jageev, that an appeal from a registrar must be 'on the merits', is entirely consistent with the words of s 35A(6). Davies J, however, did not distinguish between a rehearing and a hearing de novo, both of which are hearings on the merits but which (theoretically at least) differ in the extent to which the appeal court is restricted to the evidence given below. In Halsbury's Laws of Australiaat [325-11110], the authors, in discussing the nature of an 'appeal by way of rehearing', comment: 'A rehearing may be a trial over again based solely on the evidence before the lower court or a trial which may include additional evidence admitted by leave of the appeal court essentially to bring the court up to date, or it may be a rehearing in the full sense of the term, a hearing sometimes described as a "hearing de novo", that is, a hearing at which the parties may adduce fresh evidence as of right.'

Where the Court has a discretion to allow new evidence on appeal, as has the Federal Court in accordance with the principles articulated in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at 432 - 435, the distinction may be less clear, or at least less critical. In our view, however, for the constitutional reasons given by Davies J (see [22] above), a review of a registrar's decision under s 35A(6) must be by way of a hearing de novo, in the sense in which that term is used in the above passage from Halsbury's. This is consistent with the view expressed by the Full Court in Martin at [12]; see also Cottrell v Wilcox [2001] FCA 866 at [8]. 25 Although some comments made by the primary judge might suggest otherwise (see above at [7]), it seems clear from the primary judge's reasons for decision that his Honour permitted Mr Mazukov to canvass the merits of the Acting District Registrar's decision and found them to be without merit. 26 The transcript of the hearing before his Honour confirms that Mr Mazukov put to his Honour the submissions he had put to the Acting District Registrar (see [4] above) and which he repeated at the appeal. It also shows that neither party attempted to adduce any additional evidence. In written submissions provided after the hearing, with the consent of the Court, Mr Mazukov said, '[I]t is in my interest that new evidence is allowed because it seems that at the previous hearings, either my evidence was not presented correctly or that I was not able to stress on the proper inference that should have been made from my exhibits and submissions.' 27 Although Mr Mazukov refers to 'new evidence,' he does not refer to any evidence that he might have put before the Court that was not before the primary judge. Taken in context we read this comment as a plea for a reconsideration of the merits of his application. Despite his Honour's reference to the appeal before him being 'a review of a discretionary decision' we are satisfied that his Honour reviewed Mr Mazukov's claims on the merits in accordance with the principles stated in Jageev and the authorities referred to in [23] above. 28 In the hearing of this appeal Mr Mazukov reiterated the complaints made before the Deputy District Registrar and the primary judge. He submitted that the issues he identified provided compelling reasons for the waiver he sought. We do not think it is appropriate to canvass the range of reasons that might properly justify waiving the security for costs required under O 62 r 46(3)(d). We are of the opinion, however, that in assessing the reasons proffered the policy underlying the requirement is a critical consideration. As mentioned above at [13], the protection afforded by the rule is particularly relevant where the party seeking to challenge the estimate is impecunious and for that reason the financial difficulties of the appellant cannot, per se, constitute a compelling reason. We are also confident that the other factors raised by Mr Mazukov are not relevant to any question of waiver. There is not, for example, any reason to suspect that the taxing officer's estimate or the bill of costs on which it is based, was manifestly inflated or otherwise not made in good faith. In such circumstances there might be grounds for waiving security for costs. In any event we are confident that the reasons put forward by Mr Mazukov do not fall into that category. 29 The appeal must be dismissed with costs. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Kiefel, Weinberg and Stone.

Associate: Dated: 17 June 2004 Counsel for the Appellant: The appellant appeared in person

Solicitor for the Respondent: Dobson Mitchell & Allport

Federal Court of Australia Act 1976(Cth)ss 35A(1)(g), 35A(6)

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