Ninan v Valuer-General of Western Australia - [2013] FCA 1180 - FCA 2013 case summary — Zoe

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Ninan v Valuer-General of Western Australia

[2013] FCA 1180

Federal Court of Australia|2013-11-13|Before: Mr P, Jacobson J

At a glance

AI case summary

Result

defendant. The applications for extension of time and leave to appeal in each of the five proceedings were dismissed with costs.

Key principles

The applicants failed to identify any error in the exercise of the primary judge's discretion in a matter of practice and procedure, which is the essential requirement for leave...
An application for extension of time to seek leave to appeal must comply with Rule 35.14(3)(c) of the Federal Court Rules 2011, requiring the affidavit to state the facts relied...
Bare assertions that a judge made 'completely wrong orders' and had a 'conflict of interest', without substantiation, constitute 'extravagant or scandalous allegations which the...
The residence of an applicant outside Australia is a legitimate consideration in the exercise of discretion to order security for costs under s 56 of the Federal Court of...

Issues before the court

Whether leave to appeal should be granted from interlocutory orders for security for costs
Whether an extension of time should be granted for filing an application for leave to appeal

Plain English Summary

The Federal Court refused to grant an extension of time or leave to appeal against orders requiring the applicants to pay security for costs. The applicants had commenced multiple proceedings that largely repeated earlier litigation. The primary judge ordered them to pay $20,000 security per case because they lived overseas and their court documents were deficient. The applicants filed their appeal application late and failed to properly explain the delay or identify any legal error by the primary judge. The Court confirmed that ordering security against non-residents does not breach racial discrimination laws, as it depends on where someone lives, not their nationality. The Court also rejected claims that the judge was biased or that the proceedings raised important public interest issues.

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Judgment (50 paragraphs)

[1]

Number of paragraphs: 45

[2]

[35]

Introduction 1 The applicants apply for an extension of time to seek leave to appeal, and for leave to appeal, against orders made by the primary judge (Buchanan J) on 9 August 2013 in five sets of proceedings: see Ninan v Valuer-General of Western Australia [2013] FCA 789. 2 The orders in each proceeding were in identical terms. They were, relevantly, that the applicants provide security for costs in each proceeding in the sum of $20,000, and that if security was not provided by Friday 30 August 2013, the proceedings stand dismissed. If the proceedings were dismissed for failure to provide security, no further originating application naming the relevant respondent be filed without leave of the Court. 3 Each of the present applications states 10 grounds. The grounds are substantially identical in each application, the only difference being in the form of ground 8 which refers to the pleading in the particular case. 4 Each application was filed on 4 September 2013, that is to say eleven days after the expiration of the time prescribed by Rule 35.13 of the Federal Court Rules 2011 for the filing of an application for leave to appeal. 5 An affidavit sworn on 29 August 2013 by one of the applicants, Mr Ninan, accompanied each application. The affidavit was identical in each proceeding. 6 The affidavit does not comply with the requirements of Rule 35.14(3)(c) because it does not state the facts on which the application relies or the reasons why the application for leave to appeal was not filed within time. 7 The failure to comply with the Rules is not a mere formality because, rather than stating briefly and specifically the facts on which the applicants rely, the affidavit consists of a wide ranging set of submissions directed to what are said to be the applicants' prospects of success in the substantive proceedings. The affidavit also contains unsubstantiated, but serious, allegations about the parties and against judges of the Court who have dealt with previous applications.

[36]

The primary judgment 8 The primary judgment dealt with interlocutory applications filed by each of the respondents seeking orders for summary dismissal or, alternatively orders for the provision of security for costs. 9 The grounds for summary dismissal relied upon by most of the respondents was that the proceedings were an abuse of process because they sought to relitigate a case which had been disposed of by earlier proceedings. 10 Here, the earlier proceedings were those which were dealt with by another judge of the Court, Griffiths J. They are described in the primary judgment as the 2012 proceedings. 11 The primary judge was of the view that as a matter of substance the applicants in these proceedings are seeking, in large part, to repeat allegations which were dealt with to finality in the 2012 proceedings. This can be seen in the primary judgment at [20]: Even though the allegations are, in some respects, expressed in different language, the factual assertions are essentially the same. Like the 2012 proceedings, it is a difficult task to get behind the obscure language and structure used by the applicants in their pleadings, but when that is attempted it is clear that the present cases represent an attempt to revive the 2012 litigation. 12 However, the primary judge went on to say that there may be some areas in which the applicants have an argument that new matters are raised or the respondents were not parties to the 2012 proceedings. His Honour expressed no final view as to whether some parts of the proceedings might survive, or against whom. 13 His Honour then turned to the alternative claim for security for costs. He said the reasons why security should be ordered were the same as those which had been expressed by Griffiths J in relation to orders made in the 2012 proceedings. Those reasons were, first, that the applicants are not ordinarily resident in Australia and, second, the "patent deficiencies" in the statement of claim: see Ninan v St George Bank Ltd [2012] FCA 905; (2012) 294 ALR 190 (Ninan v St George Bank) at [45]-[46]. 14 The primary judge said at [24] that the "patent deficiencies" identified by Griffiths J in the 2012 proceedings are reflected in the present proceedings. 15 His Honour explained the approach that he took as a practical one stating (at [25]): In my view, the most efficient course to take at the moment is to direct that the applicants provide security for costs for the new proceedings which they have commenced. If security is provided then a closer examination of the proceedings, with a view to assessing the applicants' attempts to justify them procedurally, may be justified. No further examination of that question is, in my view, necessary or justified at the moment.

Ninan v Valuer-General of Western Australia

At a glance

Result

Key principles

Issues before the court

Plain English Summary

Judgment (50 paragraphs)

Cited legislation

Parties

Legislation Cited (5)

Cases Cited (8)

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