Parthy v Grow MF Pty Ltd

1. The application for leave be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

HESPE J: 1 Before the Court is an application by Mr Parthy for leave to appeal orders made by the primary judge on 3 November 2023. 2 Based on the submissions filed with the Court and the hearing of the application, it became apparent that the order which Mr Parthy seeks to appeal is: The matter is set down for an in-person hearing on 24, 25 and 26 June 2024, commencing at 10.15 am in Melbourne. 3 The aspects of the order which Mr Parthy seeks to appeal are: (a) The length of time for which the matter has been set down for hearing. Mr Parthy claims three days is inadequate given he is self-represented and will require every step to be explained to him in detail during the hearing and given Mr Parthy's view that the evidence is complex. (b) The requirement that the hearing be in person in Melbourne. Mr Parthy claims that the requirement to attend in person in Melbourne causes him prejudice because financial constraints make travel to Melbourne from Sydney (where he currently resides), unaffordable, taking into account travel and accommodation. 4 Mr Parthy represented himself at the hearing of the application for leave. The respondent did not appear at the hearing of this application and has not filed any submissions. 5 The general background to the proceedings before the primary judge is set out in Parthy v Grow MF Pty Ltd [2023] FCA 1037 at [3]-[7]. 6 The order from which leave to appeal is sought is an order of practice and procedure made in exercise of the primary judge's general discretion. As the High Court said in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170 at 176-7: The essence of [a matter of practice and procedure] is described in terms which are sufficient for present purposes in Salmond on Jurisprudence 10th ed. (1947), p. 476: 'Substantive law is concerned with the ends which the administration of justice seeks; procedural law deals with the means and instruments by which those ends are to be attained. The latter regulates the conduct and relations of courts and litigants in respect of the litigation itself; the former determines their conduct and relations in respect of the matters litigated'. 7 The order which Mr Parthy seeks leave to appeal does not determine the substantive legal rights and obligations of the parties to the proceedings. As an order relating to practice and procedure, it is necessarily interlocutory in nature. 8 As the Full Court said in Deputy Commissioner of Taxation v Miraki [2022] FCAFC 96 at [5]: The principles applicable to an application for leave to appeal from an interlocutory decision are well established. In general, the tests to be applied are: (a) whether, in all the circumstances, the decision is attended with sufficient doubt to warrant its being reconsidered by the Full Court; and (b) whether substantial injustice would result if leave were refused, supposing the decision to be wrong: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-400 per Sheppard, Burchett and Heerey JJ. The discretion to grant leave is not constrained by rigid rules. Leave to appeal has been granted where, for example, the questions posed for resolution on appeal "have general importance beyond the concerns of the parties": Australian Securities and Investments Commission v P Dawson Nominees Pty Ltd [2008] FCAFC 123; (2008) 169 FCR 227 at [10] per Heerey, Moore and Tracey JJ. See also ACE Insurance Ltd v Trifunovski [2012] FCA 235; (2012) 291 ALR 46 at [7]- [9] per Flick J. 9 Where the proposed ground of appeal related to a matter of practice and procedure and where no question of general principles are at stake, appellate intervention has been said to require the exercise of particular caution: Hogan v Australian Crime Commission [2010] HCA 21; (2010) 240 CLR 651 at [34]. In Adam P Brown Male Fashions at 177, the High Court said: We would merely repeat, with approval, the oft-cited statement of Sir Frederick Jordan in In re the Will of F. B. Gilbert (dec.) (1946) 46 SR (NSW) 318, at p 323: '...I am of opinion that,...there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal.' See also, Brambles Holdings Ltd. v. Trade Practices Commission [1979] FCA 80; (1979) 40 FLR 364, at p 365; [1979] FCA 80; 28 ALR 191, at p 193; Dougherty v. Chandler (1946) 46 SR (NSW) 370, at p 374. It is safe to say that the question of injustice flowing from the order appealed from will generally be a relevant and necessary consideration. See too Melbourne City Investments Pty Ltd v Treasury Wine Estates Ltd [2017] FCAFC 98; (2017) 252 FCR 1 at [41]-[42] and the cases cited therein; Nationwide News Pty Limited v Rush [2018] FCAFC 70 at [4]; Goodwin v HBCA Pty Ltd [2022] FCAFC 166 at [14]. 10 Because the matter the subject of the order is discretionary the principles in House v The King [1936] HCA 40; (1936) 55 CLR 499 apply. That is, to succeed in his proposed appeal, Mr Parthy would need to demonstrate that the primary judge acted upon a wrong principle, mistook the facts, failed to take into account a material consideration or was guided by extraneous or irrelevant matters. Error may also be inferred from the overall result: House v The King at 505. Whether the judgment (here in the form of the order against which Mr Parthy seeks leave to appeal) is attended with sufficient doubt is to be determined in that context: Kitchen v Director of Professional Services Review [2023] FCAFC 160 at [30]. 11 Mr Parthy contends that the order made by the primary judge for a three day hearing does not allow sufficient hearing time as Mr Parthy requires all procedural matters to be explained to him in a form that he can understand. 12 The number of days for which a hearing is set down is a matter of practice and procedure and of the primary judge's discretion. The primary judge is well aware that Mr Parthy is a self-represented litigant. There is no basis on which it can be said that the primary judge's order that the matter be set down for a three day hearing warrants reconsideration by a Full Court. The order does not result in substantial injustice. It remains open to Mr Parthy to make an application to the primary judge for a longer hearing particularly once the evidence has been filed. 13 Mr Parthy contends that by requiring him to attend a hearing in person in Melbourne, the primary judge failed to take into account his financial circumstances. Mr Parthy submits that he cannot afford to travel to Melbourne for the hearing. 14 Federal Court hearings are usually conducted in person. Whether a hearing is held otherwise than in person is a matter for the trial judge's discretion. The interests of justice extend beyond the personal preferences and interests of the respondent. There is the interests of the applicant and the broader interest of the efficient and effective administration of justice and the balance of convenience of the Court itself. 15 The matter was filed in the Victorian registry and commenced in May 2023. Mr Parthy made no application to the primary judge for the proceedings to be transferred to Sydney or for the hearing to be conducted in Sydney. The hearing is scheduled for three days. It is expected that witnesses will be called. Mr Parthy is self-represented and has no legal training. Whilst Mr Parthy's financial constraints may make travel to Melbourne cumbersome, there is no financial evidence before me beyond Mr Parthy's assertion that such travel would be impossible and that he has no current source of income. There are buses and trains which run between Melbourne and Sydney. There are low cost accommodation options, albeit that they likely entail longer travel time to the central business district. 16 The order for an in person hearing does not warrant reconsideration by a Full Court. 17 It remains open to Mr Parthy to seek to resolve the issues in dispute outside of a Court hearing. If he wishes to defend the proceedings in Court, he is subject to the rules of Court and the orders made pursuant to those rules. 18 By his written submissions, Mr Parthy also contended that the primary judge ought to have made an order for the proceedings to be live streamed and for the appointment of a Court appointed expert. As no application was made to the primary judge for such orders to be made, these are not proper subjects of appeal. I merely make the following observations: (1) Mr Parthy submits that the primary judge ought to have made orders for the live streaming of the proceedings to ensure that the case is open to the public. The submission is without substance. The general requirement that hearings be conducted in public does not require proceedings to be live streamed. The requirement is satisfied by conducting a hearing in a court room to which the public has access. There is nothing in the orders made by the primary judge that results in the hearing being closed to the public. (2) Mr Parthy submits that the primary judge does not have the necessary specialist knowledge to properly understand the facts. It is noted that the primary judge has made orders for Mr Parthy to file such affidavits and expert evidence as he wishes. Mr Parthy has an opportunity to provide the primary judge with whatever evidence on which he wishes to rely. It is for the primary judge in the exercise of his discretion to determine if he would be assisted by a Court appointed expert. 19 The orders made by the primary judge relate to matters of practice and procedure. They do not determine substantive rights. The application for leave to appeal is dismissed. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hespe.