Shaw v NM Superannuation Pty Ltd

1. The applicant's application for an extension of time and leave to appeal be dismissed.
2. There be no order as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

RANGIAH J: 1 The applicant has applied for an extension of time and leave to appeal from the judgment of the Federal Circuit and Family Court of Australia (Division 2) (FCFCOA (Div 2)) in Shaw v NM Superannuation Pty Ltd (AMP) [2023] FedCFamC2G 412. 2 The applicant is self-represented in these proceedings, as he was before the primary judge. 3 In the course of the proceeding before the FCFCOA (Div 2), the applicant applied for the recusal of the primary judge on the basis of alleged actual and apprehended bias. 4 In his reasons for judgment, his Honour held that: The application for recusal has absolutely no merit whatsoever. 5 Despite ruling that there was no merit in the allegations of bias, the primary judge, somewhat surprisingly, went on to comment: 25 It is very obvious to me that the applicant is simply someone who, when he does not get his own way, instead attacks, on a personal level, those persons who are responsible for the decisions. He is not someone who can think, in any way, objectively about matters, and would rather do whatever he could to destroy reputations. 26 Having come to the realisation that he has no respect for my Court and was endeavouring to set the Court up in such a false and surreptitious way, means that I do not have confidence that it is a matter where I should continue to sit on the management of the application, now that I have seen the true character of the applicant exposed. 27 It is with reluctance that I do this, because applicants should not have the ability to pick and choose their quorum. 28 It is, as I remarked earlier yesterday in another case, the easiest thing for a litigant to do, when it is that they do not think things are going their way, to simply cry "bias". It is symptomatic of the way in which the society we are now living in deals with matters that persons can make such allegations with seeming impunity and face no consequences for doing so. 29 But nevertheless, this is why it is a matter that I should now give over to another judge. The matter will be transferred to His Honour Judge Egan, the only other judge who deals with general federal law matters in Queensland. His Honour's Associates will be in touch. 30 It will be a matter for His Honour to deal with those reserved costs as His Honour wishes. 6 The primary judge made the following orders: 1. This matter be transferred to His Honour Judge Egan. 2. The costs of the Respondent be reserved on an indemnity basis. 7 Unsurprisingly, the applicant is aggrieved and distressed about the derogatory language used against him by the primary judge. It can immediately be accepted that his Honour's language and findings were intemperate, unnecessary and offensive. 8 The applicant seeks to appeal so that he can "defend and clear [his] name" and ventilate his broader complaints about the conduct of the primary judge. 9 Rule 35.13 of the Federal Court Rules 2011 (Cth) requires that an application for leave to appeal be filed within 14 days after the date of the judgment or order. The applicant's delay was some 34 days. 10 An application for an extension of time to seek leave to appeal can be made under r 35.14(1) of the Federal Court Rules. The relevant factors include the length of the delay, the explanation for the delay, any prejudice to the respondent and the merits of the proposed application: see Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 96 ALJR 819 at [12]. 11 The applicant's explanation for the delay is that his initial application was rejected for filing by the Registry as he had adopted the wrong procedure. There was then substantial correspondence with the Registry about the appropriate procedure. The delay was also contributed to by the primary judge's failure to publish his reasons for judgment in a timely way. I am satisfied that the applicant has demonstrated an adequate excuse for the delay. 12 The respondent has not asserted that it is prejudiced by the applicant's delay. 13 The applicant requires leave to appeal under s 24(1A) of the Federal Court of Australia Act 1976 (Cth) as the judgment of the primary judge was interlocutory. The relevant factors are principally whether the judgment is attended by sufficient doubt to warrant it being reconsidered by a Full Court, and 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. 14 In these circumstances, the fate of the application for an extension of time and for leave to appeal turns substantially upon the merits of the proposed appeal. 15 Section 24(1)(d) of the Federal Court of Australia Act confers jurisdiction on the Federal Court to hear and determine appeals from judgments of the FCFCOA (Div 2) exercising original jurisdiction under a law of the Commonwealth, subject to certain exceptions. The expression "judgment" is defined in s 4 to mean, relevantly, "A judgment, decree or order, whether final or interlocutory". 16 It is well-established that reasons for judgment are not a judgment; a judgment being a formal order by which the court disposes of the matter before it: see, for example, Harmer v Oracle Corporation Australia Pty Limited (2013) 299 ALR 236 at [21], [22] and [33]. The ultimate and only point of appellate litigation is the correction of orders which should not have been made: Harmer at [22]. An appellate court does not rewrite the reasons which were given, but merely changes the result: Harmer at [22]. 17 The applicant's grievance is, in substance, with the reasons of the primary judge rather than the orders made. The applicant sought the recusal of the primary judge. The applicant, in effect, obtained the outcome he had sought, namely the transfer of the matter to another judge. The applicant's complaints are principally concerned with the reasons given by the primary judge for ordering the transfer, including the adverse comments made about the applicant. 18 The applicant contends that the primary judge did not have the power to transfer the matter to a specific judge. Under s 140 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), the FCFCOA (Div 2) has power, in relation to matters in which it has jurisdiction, to, "make orders of such kind, including interlocutory orders, as the Court considers appropriate". It may have been unusual and unwise for the primary judge to make an order transferring the matter to specified judge, but it was within his Honour's power to do so. 19 It is unclear what the primary judge meant by the order that the respondent's costs, "be reserved on an indemnity basis". However, as his Honour acknowledged in his reasons, the question of costs will ultimately be within the discretion of the judge to whom the matter is transferred. I am unable to see that the form of the order causes any prejudice to the applicant's rights in respect of costs. 20 The applicant's sense of grievance at the gratuitous comments made by the primary judge is entirely understandable. Nevertheless, as I have indicated, an appeal can only be brought against orders, and not the reasons given for making those orders. 21 I am not satisfied that the proposed appeal has sufficient merit to warrant a grant of leave. Further, I am not satisfied that the applicant will suffer substantial injustice if leave to appeal is refused, bearing in mind that his substantive rights in the proceeding before the FCFCOA (Div 2) have not been affected. 22 The application for an extension of time and leave to appeal will be dismissed. 23 The respondent appeared but indicated that its attitude was to abide by the orders of the Court and made no submissions. In these circumstances, there will be no order as to costs. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rangiah.