Wilczynski v Oknalux Pty Ltd

1. The appeal be dismissed as not competent. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

MCEVOY J: 1 Before the court is a notice of appeal dated 22 November 2023 brought by Mr and Mrs Wilczynski in relation to orders made in Oknalux Pty Ltd v Wilczynski (No 2) [2023] FCA 1444. The proceeding before the primary judge was an action in defamation in which Mr and Mrs Wilczynski were the respondents. In the proceeding before his Honour, the following orders were made: 1. Leave to the applicant to file a notice of discontinuance. 2. The trial listed to commence on 11 December 2023 with 10 days set aside is vacated. 3. The applicant is to pay the respondents' disbursements in the form of: (a) Court fees paid by them; and (b) Fees paid by them to any interpreter or translator, such fees to be identified in an affidavit, together with supporting documentation, to be filed and served by the respondents by on or before 28 November 2023. 4. The quantum of any fees is to be assessed by a Registrar of the Court in the absence of agreement. 5. Save for the disbursements the subject of order 3 above, there be no order as to costs. 2 In their notice of appeal, Mr and Mrs Wilczynski describe their appeal as follows: The Appellant appeals from some of the orders (partly point 3 and point 5) of the Federal Court given on 14.11.2023 in Adelaide. 1. Leave to the applicant to file a notice of discontinuance. 2. The trial listed to commence on 11 December 2023 with 10 days set aside is vacated. 3. The applicant is to pay the respondents' disbursements in the form of: a. Court fees paid by them; and b. Fees paid by them to any interpreter or translator, b. such fees to be identified in an affidavit, together with supporting documentation, to be filed and served by the respondents by on or before 28 November 2023. 4. The quantum of any fees is to be assessed by a Registrar of the Court in the absence of agreement. 5. Save for the disbursements the subject of order 3 above, there be no order as to costs. 3 Some 28 grounds of appeal are then advanced. They include complaints that the primary judge ignored Mr and Mrs Wilczynski's claims for compensation arising from what they say are unjustified accusations against them, many years of unwarranted court proceedings, trauma, violation of their personal rights, mental anguish and stress. Amongst other things, Mr and Mrs Wilczynski complain that his Honour omitted to deal with these claims in the proceeding before him. It is noteworthy in this regard that Mr and Mrs Wilczynski had not made a cross claim in the proceeding before the primary judge. 4 On 3 May 2024 my Associate wrote to the parties relevantly in the following terms: I refer to the Notice of Appeal filed by Mr and Mrs Wilczynski (the applicants) in this matter. The matter has been allocated to Justice McEvoy to consider whether leave to appeal is required in circumstances where the purported appeal is solely on the question of costs; and if leave is required, to determine whether leave should be granted. A decision to make a costs order is generally regarded as interlocutory, and leave to appeal is required where such an order is solely the subject of an appeal: see Harvard Nominees Pty Ltd v Dimension Agriculture Pty Ltd (in liq) [2023] FCAFC 140 at [13]-[14]. Paragraphs 3 and 5 of the orders made on 14 November 2023 were: 3. The applicant is to pay the respondents' disbursements in the form of: (a) Court fees paid by them; and (b) Fees paid by them to any interpreter or translator, such fees to be identified in an affidavit, together with supporting documentation, to be filed and served by the respondents by on or before 28 November 2023. … 5. Save for the disbursements the subject of order 3 above, there be no order as to costs. In these circumstances his Honour considers that the parties will need to satisfy the Court that leave should be granted (or that for some reason the applicants do not require leave). His Honour proposes that there be an interlocutory hearing to determine these matters on a date to be fixed. If this is to occur the parties would need to prepare, in accordance with the following timetable: • On or before 4:00pm on 22 May 2024 the applicants file and serve an application for leave to appeal in accordance with r 35.12 of the Federal Court Rules 2011. • On or before 4:00pm on 5 June 2024 the applicants file and serve any evidence and written submissions, not exceeding 5 pages, on which the applicants propose to rely on to support the application for leave to appeal. • On or before 4:00pm on 12 June 2024 the respondents file and serve any evidence and written submissions, not exceeding 5 pages, on which they propose to rely. • On or before 4:00pm on 19 June 2024 the applicants file and serve any written submissions in reply, not exceeding 2 pages. • The applicants' application for leave to appeal be listed for hearing on a date to be fixed. • There be liberty to apply. Justice McEvoy would be grateful if the parties could advise by 4:00pm on Wednesday 8 May 2024 whether they are content with orders being made to this effect. 5 On 7 May 2024, Mr Wilczynski responded to the court's email in the following terms: Thank you for your email. We appreciate the Court's attention to this matter. Regarding the issues raised, we respectfully disagree with Justice McEvoy's suggestions for the following reasons: 1. Reimbursement of Court Costs: On 14.11.2023, [the primary judge] issued an order regarding the reimbursement of our costs of court fees and fees paid to interpreters or translators. However, compensation costs have been omitted. 2. Additional Claims in Our Notice of Appeal: Our appeal extends beyond the question of costs. We seek redress not only for reimbursement but also for other matters that were overlooked. These additional claims demonstrate that our appeal is not solely focused on costs. Please refer to our attached Notice of Appeal for further details. 3. Leave Requirement: Given the broader scope of our appeal, we assert that leave is not required, contrary to His Honour's suggestion. Additionally, we find the Honourable Justice McEvoy's proposal from 4 May 2024, to be unacceptable because it violates our basic human rights in terms of access to the judiciary and disregards our rights as victims. Furthermore, it is incompatible with our application. This proposal allows respondents to evade liability for misleading the Federal Court [SAD188-20] regarding the factual and legal status of court cases. It also absolves them of responsibility for violating our rights, including fundamental human rights, as well as our personal rights. We believe that this proposal shows signs of bias, raising concerns about the impartiality of Justice McEvoy. Consequently, we respectfully request that the Honourable Justice McCay [sic] consider recusing himself from this case to ensure a fair trial. Thank you for your attention to this important issue. 6 As will be apparent, Mr Wyszynski's position was that the appeal he and his wife sought to bring from the orders of the primary judge extended beyond the question of costs, and that leave was not required. Mr Wilczynski did not agree that orders in the terms proposed by the court to facilitate the making of an application for leave to appeal should be made, and no such application was forthcoming. 7 Accordingly, on 24 July 2024, the court made an order fixing the matter for interlocutory hearing on 8 August 2024. This order was communicated by email from my Associate to the parties. The parties were advised that the purpose of the interlocutory hearing was to hear argument on the question of whether the appeal dated 22 November 2023 is competent, or whether it should be dismissed as not competent having regard to the principles essayed by the Full Court in Harvard Nominees Pty Ltd v Dimension Agriculture Pty Ltd (in liq) (2023) 299 FCR 224 at [13]-[14]. 8 At the interlocutory hearing on 8 August 2024 Mr and Mrs Wilczynski were self-represented. They both addressed the court, Mrs Wilczynski with the assistance of an interpreter. 9 Mr and Mrs Wilczynski maintained their position that the primary judge had failed to deal with their various grievances, including their rights to compensation. They claimed that they had therefore been denied a fair trial. They submitted that because they wished to agitate these matters on appeal, it was not correct to regard their appeal as an appeal solely on the question of costs, and therefore an application for leave to appeal was not required. 10 The respondents were represented by counsel. Their position was that the purported appeal was against interlocutory orders and that by reference to s 24(1A) of the Federal Court of Australia Act 1976 (Cth) and having regard to the principles stated in Harvard Nominees, leave was required. The respondents submitted that because leave to appeal had not been sought, the appeal should be dismissed. 11 Notwithstanding the submissions of Mr and Mrs Wilczynski, their appeal must be dismissed as not competent. It seeks, in terms, to prosecute an appeal against orders of the primary judge which are orders as to costs. As the Full Court has made clear in Harvard Nominees at [13], a costs order is interlocutory and leave to appeal is required where an appeal seeks to challenge a costs order unless the justification for the challenge is said to be that the making of a different costs order is a necessary consequence of a successful appeal in respect of a decision that does not require leave. No such justification exists in the present circumstances. 12 It may be accepted that Mr and Mrs Wilczynski feel aggrieved by the fact that the applicants in the proceeding before the primary judge have been able to discontinue the proceeding, thereby denying Mr and Mrs Wilczynski the opportunity to attempt to vindicate their position in that proceeding. However, it is not the role of the Court to provide a forum for Mr and Mrs Wilczynski to air their grievances against the applicants below in the absence of a justiciable matter. 13 The respondents did not press that an order for costs be made in their favour with respect to the interlocutory hearing, so it is unnecessary to consider the question of costs. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McEvoy.