The application for an extension of time for leave to appeal and for leave to appeal
3 Mr Rowe and his wife enrolled their daughter at a primary school operated by Emmanuel College. Their signatures appear on a document entitled "Enrolment Agreement" dated 10 February 2009 and another entitled "Enrolment Agreement Contract" dated 7 April 2009 (although Mr Rowe has claimed variously that his signature was forged and that he has no recollection of signing the documents). Their daughter started at the school on 27 January 2010. Subsequently, Mr Rowe and his wife encountered marital difficulties and separated, resulting in bitterly contested family law litigation.
4 In May 2011 Mr Rowe sought to cancel his daughter's enrolment without the consent of his former wife. Emmanuel College refused to cancel the enrolment, saying that it could only terminate the enrolment "when the instruction comes from both of you as the contract is in both your names". Mr Rowe was unhappy with this decision.
5 Another dispute arose over Emmanuel College's policy, called "Mailings to Parents of Separated Families", under which the College proposed to charge Mr Rowe $250 per year to post a copy of school reports and other material to him. Mr Rowe complained that this was unfair and a denial of his basic human rights. He also claimed that the charge was inconsistent with a fee schedule published by the College that listed all fees and charges that parents would have to pay except textbook hire, stationery and optional excursions. He refused to pay. The College eventually provided him with a copy of the reports free of charge.
6 Mr Rowe has waged a campaign against Emmanuel College, including by pursuing proceedings in several courts and a tribunal, by complaining or threatening to complain to the police, child safety, anti-discrimination and regulatory authorities, by appearing on the television program "Today Tonight" and by establishing a website and Facebook page. Mr Rowe presents himself as a crusader for the public good. Emmanuel College sees Mr Rowe's conduct merely as a source of considerable vexation for it and its staff. These differences in perception loomed large in the submissions of each party.
7 Mr Rowe is an experienced solicitor who has represented himself in his various legal proceedings. Before the Federal Circuit Court, Mr Rowe sought the following final relief in his further amended application:
3. The Applicant seeks orders of the court to strike out and/or declare void, as an unfair contract term, pursuant to Schedule 2, Part 2-3 of the Competition and Consumer Act 2010 (Cth), the contract term (as argued by the Respondent), that both the Applicant and the Applicant's ex-wife must do all acts "jointly" in the consumer contract between the Applicant, the Applicant's ex-wife … and the Respondent, when the original contract was entered into severally (severable promise) between the Applicant, the Applicant's ex-wife, and the Respondent.
4. The Applicant seeks orders of the court to strike out and/or declare void, as an unfair contract term, pursuant to Schedule 2, Part 2-3 of the Competition and Consumer Act 2010 (Cth), the Respondent's policies on communication with separated families.
5. The Applicant seeks a declaration of the court that the Respondent has engaged and continues to engage in misleading and deceptive conduct pursuant to Schedule 2, Part 2-1 of the Competition and Consumer Act 2010 (Cth).
6. The Applicant seeks a declaration of the court that the Respondent has engaged and continues to engage in unconscionable conduct pursuant to Schedule 2, Part 2-2 of the Competition and Consumer Act 2010 (Cth).
7. The applicant further seeks general damages of $750,000.00 pursuant to section 236 of the Competition and Consumer Act 2010 (Cth), as a result of the Respondent's contravention of the Competition and Consumer Act 2010 (Cth).
8. The Applicant further seeks that the court awards the Respondent a civil penalty of $1.1 million dollars for breach(s) by the Respondent of the Competition and Consumer Act 2010 (Cth).
9. The court orders the Applicant's costs to be paid by the Respondent on an indemnity basis.
8 Emmanuel College applied for summary dismissal of the proceeding. On 15 April 2013 Judge Jarrett summarily dismissed the claims for relief sought in paras 3, 4, 6 and 8 of the further amended application on the basis that Mr Rowe had no reasonable prospect of prosecuting the claims for such relief. The application for summary dismissal itself was not in the material placed before this Court but it appears to have been made under s 17A of the Federal Circuit Court of Australia Act 1999 (Cth) or r 13.10 of the Federal Circuit Court Rules 2001 (Cth) or both.
9 Section 17A of the Federal Circuit Court of Australia Act provides, relevantly:
17A Summary judgment
…
(2) The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is defending the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
10 Rule 13.10 of the Federal Circuit Court Rules provides, relevantly:
13.10 Disposal by summary dismissal
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
(b) the proceeding or claim for relief is frivolous or vexatious; or
(c) the proceeding or claim for relief is an abuse of the process of the Court.
11 In Spencer v Commonwealth of Australia (2010) 241 CLR 118, Hayne, Crennan, Kiefel and Bell JJ, discussed the expression "no reasonable prospect" in s 31A of the Federal Court of Australia Act 1976 (Cth) (the equivalent of s 17A of the Federal Circuit Court of Australia Act):
[59] In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like "clearly", "manifestly" or "obviously") as "frivolous", "untenable", "groundless" or "faulty". But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power given by s 31A. Nor can the content of the word "reasonable", in the phrase "no reasonable prospect", be sufficiently, let alone completely, illuminated by drawing some contrast with what would be a "frivolous", "untenable", "groundless" or "faulty" claim.
[60] Rather, full weight must be given to the expression as a whole. The Federal Court may exercise power under s 31A if, and only if, satisfied that there is "no reasonable prospect" of success. Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly. … At this point in the development of the understanding of the expression and its application, it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes.
12 It may be that the power to give summary judgment under s 17A can be exercised on wider grounds than the power under r 13.10, since the latter is not qualified by the statement that a proceeding need not be hopeless or bound to fail for it to have no reasonable prospect of success. That does not matter here because the primary judge's conclusion that Mr Rowe had no reasonable prospect of successfully prosecuting aspects of his claim appears to have been reached on the narrow basis that they were untenable or hopeless or bound to fail.
13 Mr Rowe wishes to appeal against the orders summarily terminating part of his claim. Section 24(1A) of the Federal Court of Australia Act provides that an appeal shall not be brought from an interlocutory judgment unless the Federal Court or a Judge gives leave to appeal. A decision of a judge of the Federal Circuit Court to summarily dismiss a claim or part of a claim is interlocutory: Scott v Human Rights and Equal Opportunity Commission [2007] FCA 2055 at [16], Dobson v Australian Postal Corporation [2013] FCA 320 at [7]. Accordingly, Mr Rowe requires leave to appeal.
14 Rule 35.13 of the Federal Court Rules 2011 (Cth) requires a person who wants to apply for leave to appeal to file the application within 14 days after the date on which the judgment was pronounced. Mr Rowe had until 29 April 2013 to file his application for leave to appeal but he failed to do so until 6 May 2013. He says that this occurred because, while the primary judge's reasons were given ex tempore on 15 April 2013, the written judgment was not made available until 6 May 2013 and r 35.12(2)(b) Federal Court of Australia Rules 2011 (Cth) requires that an application for leave to appeal be accompanied by the reasons, if published.
15 Mr Rowe seeks an extension of time to seek leave to appeal pursuant to r 35.14(1) of the Federal Court Rules. The success of his application for an extension of time will depend upon whether he has provided a satisfactory explanation for the delay and whether he can demonstrate that there is some prospect of success in the proposed appeal: Wilson v Alexander (2003) 135 FCR 273 at [24]-[26].
16 I am prepared to accept that Mr Rowe has provided a satisfactory explanation for his short delay. It is next necessary to consider whether his proposed appeal has adequate prospects of success, both in the context of his application for an extension of time and his application for leave to appeal.
17 The Court has a wide discretion as to whether to grant leave to appeal from an interlocutory judgment, but generally leave will not be granted unless the decision in question is attended with sufficient doubt to warrant the grant of leave and substantial injustice would result from a refusal of leave to appeal: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399, Minogue v Williams [2000] FCA 125 at [19]. Leave will more readily be granted where, as here, the interlocutory decision effectively determines a substantive right: Decor Corporation at 400, Minogue v Williams at [19]. In such a case, leave will usually be granted if there is any doubt about the decision at first instance: Johnson Tiles Pty Ltd v Esso Australia Ltd (2000) 104 FCR 564 at [43].
18 Each of the final orders sought by Mr Rowe in his further amended application depended upon the application of Schedule 2 of the Competition & Consumer Act 2010 (Cth). Schedule 2 is called the Australian Consumer Law.
19 Part 2-3 of the Australian Consumer Law deals with unfair contract terms. Section 23(1) provides that, "A term of a consumer contract is void if … the term is unfair and … the contract is a standard form contract".
20 Pursuant to s 8 of Schedule 7 of the Trade Practices Amendment (Australian Consumer Law) Act (No. 2) 2010 (Cth), Part 2-3 of the Australian Consumer Law applies only to contracts entered into on or after 1 January 2011, contracts that are renewed on or after that date and contractual terms which are varied on or after that date.
21 Mr Rowe did not argue before the Federal Circuit Court that the contract was entered or renewed on or after 1 January 2011. Instead he submitted that Part 2-3 applied because Emmanuel College had unilaterally varied the contract after 1 January 2011 by:
(a) introducing a term that Mr Rowe and his ex-wife must jointly agree to terminate their daughter's enrolment;
(b) introducing the policy under which it sought to charge Mr Rowe $250 per year for a copy of his daughter's report cards.
22 Mr Rowe argued that therefore s 23(1) applied to his contract with Emmanuel College, and that each of these terms was unfair.
23 The primary judge rejected the argument that Emmanuel College had purported to vary the contract by introducing a term that Mr Rowe and his ex-wife must jointly agree to the termination of the enrolment. His Honour concluded that Emmanuel College had merely interpreted the contract and the obligations and responsibilities created by it in a way that Mr Rowe disagreed with. That did not represent an attempt by Emmanuel College to impose a new term, but reflected its interpretation of the existing terms of the contract. Accordingly, there was no purported or actual variation of any term of the contract after 1 January 2011 and Part 2-3 of the Australian Consumer Law had no application. His Honour's reasoning was, in my opinion, clearly correct.
24 The primary judge rejected Mr Rowe's argument that the unfair contract provisions of Part 2-3 of the Australian Consumer Law applied to Emmanuel College's policy under which it proposed to charge Mr Rowe $250 per year for an additional copy of his daughter's report cards. In his further amended application and in an affidavit placed before the Federal Circuit Court, Mr Rowe stated that, "The policy was never agreed by the Applicant with the Respondent". His Honour held that on any view of it, there was merely an offer by the school to a parent to provide information to the parent for a cost. The parent was not obliged to take up the offer. His Honour noted that Mr Rowe's case was that he had not accepted the offer. The policy was not a term of the contract and therefore s 23 did not apply to it. His Honour's reasoning on this issue was, in my opinion, also clearly correct.
25 In view of the primary judge's conclusion that the policy complained of by Mr Rowe was not a term of the contract, it was unnecessary for his Honour to decide whether Part 2-3 of the Australian Consumer Law did not apply to the contract by reason of s 8 of Schedule 7 of the Trade Practices Amendment (Australian Consumer Law) Act (No 2). In my opinion, Mr Rowe's claim was also bound to fail because no terms of the contract were varied on or after 1 January 2011.
26 The primary judge also rejected Mr Rowe's claim for relief based on the allegation that Emmanuel College had engaged and continued to engage in unconscionable conduct. Mr Rowe relied on s 20(1) of the Australian Consumer Law which provides that "A person must not, in trade or commerce, engage in conduct that is unconscionable, within the meaning of the unwritten law from time to time".
27 Mr Rowe's further amended application alleged the following as constituting the grounds of his assertion of unconscionable conduct:
Furthermore, the Respondent's policy on "separated parents" is unconscionable conduct. To treat a section or group of the community in a way differently to everyone else with no good reason is unconscionable conduct.
28 In oral argument before the primary judge, Mr Rowe also asserted that Emmanuel College had engaged in unconscionable conduct by forcing him to pay a fee to access his daughter's report cards when it is "a basic human right" that parents should be able to access their children's report cards without charge.
29 Mr Rowe's argument relies upon the category of unconscionable conduct described in cases such as Blomley v Ryan (1956) 99 CLR 362, Commercial Bank of Australia v Amadio (1983) 151 CLR 447 and Louth v Diprose (1992) 175 CLR 621. In Commercial Bank of Australia Ltd v Amadio, Mason J at 462 described unconscionable conduct as occurring "whenever one party by reason of some condition or circumstance is placed at a special disadvantage vis-à-vis another and unfair or unconscientious advantage is then taken of the opportunity thereby created". His Honour considered that a "special disadvantage" is one that "seriously affects the ability of the innocent party to make a judgment as to his own best interests, when the other party knows or ought to know of the existence of that condition or circumstance and of its effect on the innocent party".
30 In the same case, Deane J said at 474 that "unconscionable dealing looks to the conduct of the stronger party in attempting to enforce, or retain the benefit of, a dealing with a person under a special disability in circumstances where it is not consistent with equity or good conscience that he should do so".
31 In Kakavas v Crown Melbourne Ltd (2013) 298 ALR 35 the High Court said at [118]:
Essential to the principle stated by both Mason J and Deane J in Amadio is that there should be an unconscientious taking advantage by one party of some disabling condition or circumstance that seriously affects the ability of the other party to make a rational judgment as to his or her own best interests. It may well be that an unconscientious taking of advantage will not always be manifest in a demonstrated inequality of bargaining power or in a demonstrated inadequacy in the consideration moving from the stronger party to the weaker; but the abiding rationale of the principle is to ensure that it is fair, just and reasonable for the stronger party to retain the benefit of the impugned transaction.
32 Before this Court, Mr Rowe relied not only upon his status as a single parent to establish his position of special disadvantage, but also upon his contention that he has limited income and suffers from a psychiatric illness. The difficulty remains that even it if assumed that Mr Rowe was at special disadvantage, he has not advanced any arguable case that there is any transaction or dealing that Emmanuel College is attempting to enforce or retain the benefit of, or that Emmanuel College took advantage of his position. On Mr Rowe's case, he rejected Emmanuel College's offer to provide him with an extra copy of his daughter's school reports for a fee.
33 Mr Rowe's argument amounts to the contention that it was unconscionable conduct for Emmanuel College to refuse to provide him, as a person who is separated, poor and with a psychiatric illness, with an extra copy of the report cards free of charge. His complaint is that he wanted to enter a transaction with Emmanuel College on terms suitable to him, but that Emmanuel College refused to do so on his terms. It is not unconscionable conduct under the unwritten law to merely refuse to enter into a transaction with a person who happens to be in a position of special disadvantage on the terms desired by that person. Mr Rowe's argument that Emmanuel College's conduct in refusing to provide him with extra copies of the report cards free of charge is in breach of s 20(1) of the Australian Consumer Law is not tenable.
34 Mr Rowe complains to this Court that Emmanuel College engaged in other conduct that he alleges was unconscionable. This includes providing medical treatment to his daughter without his consent, unlawful discrimination, bringing legal proceedings against him and defaming him. These complaints appear to use "unconscionable" in a colloquial sense to describe conduct that Mr Rowe emphatically disagrees with, but his complaints are not of the type of conduct that is dealt with under s 20(1) of the Australian Consumer Law: c.f. ACCC v CG Berbatis Holdings Pty Ltd (2003) 214 CLR 51 at [7], per Gleeson CJ.
35 Mr Rowe has not demonstrated an arguable case that the primary judge fell into error in holding that the claims for relief on the basis of the unfair contracts and unconscionable conduct provisions of the Australian Consumer Law had no reasonable prospect of success.
36 Mr Rowe conceded before the primary judge that his claim for the imposition of pecuniary penalty upon Emmanuel College could not succeed. He made the same concession before this Court. The primary judge was correct to summarily dismiss that claim.
37 Mr Rowe raised a case of ostensible bias against the primary judge. The test is whether "a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide": Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6]. He did not point to any particular passages of the transcript or particular language or comments that support his case. Mr Rowe also argued that he did not receive a full and proper hearing before the primary judge. He asserted that the primary judge had ignored his arguments.
38 I have examined the transcript of proceeding before the primary judge and I can see no basis for Mr Rowe's complaints. Mr Rowe was questioned robustly by the primary judge, no doubt to test some obvious weaknesses and inconsistencies in his case. However, there was nothing that Mr Rowe pointed to that could suggest to a fair-minded lay observer that the judge was other than impartial. Mr Rowe had an adequate opportunity to make submissions and took advantage of that opportunity at some length and with a certain robustness of his own. The refusal of the primary judge to accept Mr Rowe's arguments does not mean that he ignored them. I do not accept that he has raised an arguable case of ostensible bias or that he did not receive a full and proper hearing.
39 Mr Rowe also seeks leave to appeal against the order made by the primary judge on 15 April 2013 that he pay the costs of and incidental to that application for summary judgment. On 7 August 2013 that order was discharged, but Mr Rowe was ordered to pay Emmanuel College's costs of and incidental to the proceedings fixed in the sum of $29,988.49. That fixed amount included the costs of and incidental to the summary judgment application.
40 The consequence is that there is no extant costs order of 15 April 2013 that Mr Rowe could appeal against. Even if there were, any appeal against such a costs order would fail because the substantive grounds of his appeal would fail. I note that he has in fact appealed, as of right, against the whole of the judgment including the costs order given on 13 June 2013.
41 In any event, there would be little utility in a grant of leave to appeal. The substance of Mr Rowe's concern with his daughter's enrolment at Emmanuel College seems to have been that he should not have to pay her school fees; but his former wife has been paying such school fees by herself from at least the time he requested that his daughter's enrolment be withdrawn. Emmanuel College has also waived any fees for the provision of a copy of his daughter's school reports, and had done so before the application for summary judgement was heard and determined. I am not satisfied that refusal of a grant of leave to appeal would cause Mr Rowe to suffer any injustice sufficient to warrant the grant of such leave.
42 I am satisfied that the primary judge's decision is not attended with sufficient doubt to warrant a grant of leave to appeal and that there will be no substantial injustice as a result of the refund of the grant of leave. I also assess Mr Rowe's prospects of success as insufficient to allow him an extension of time to seek leave to appeal. In any event, it would be pointless to grant the extension of time and then refuse leave to appeal.