FEDERAL COURT OF AUSTRALIA

 Ejueyitsi v Deakin University [2013] FCA 1272

Citation:	Ejueyitsi v Deakin University [2013] FCA 1272	
		
Appeal from:	Application for leave to appeal:  Ejueyitsi v Deakin University [2013] FCCA 1034	
		
Parties:	VINCENT EJUEYITSI v DEAKIN UNIVERSITY	
		
File number(s):	VID 904 of 2013	
		
Judge(s):	PAGONE J	
		
Date of judgment:	28 November 2013	
		
Catchwords:	PRACTICE AND PROCEDURE – extension of time to seek leave to appeal – leave to appeal filed out of time – whether decision dismissing a proceeding for want of prosecution is interlocutory or final – erroneous belief as to time to bring an appeal or leave to appeal.

PRACTICE AND PROCEDURE – leave to appeal from interlocutory decision – dismissal of application for failure to prosecute – whether the decision is attended with sufficient doubt to warrant reconsideration – whether substantial injustice would result if leave were refused.  	
		
Legislation:	Computer Edge Pty Ltd v Apple Computer Inc (1984) 54 ALR 767
National Mutual Life Association of Australasia Ltd v Grosvenor Hill (Qld) (2001) 183 ALR 700
Decor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
Niemann v Electronic Industries Limited [1978] VR 471
Perananthasivam v Telstra Corporation Ltd [2007] FCA 1584 	
		
Cases cited:	Competition and Consumer Act 2010 (Cth)
Federal Court of Australia Act 1999 (Cth) ss 24(1A), 24(1D)
Federal Court Rules 2011 (Cth) rr 35.13(a), 36.03(a) 	
		
Date of hearing:	15 November 2013	
		
Date of last submissions:	15 November 2013	
		
Place:	Melbourne	
		
Division:	GENERAL DIVISION	
		
Category:	Catchwords	
		
Number of paragraphs:	24	
		
Counsel for the Applicant:	Mr E Remer	
		
Solicitor for the Applicant:	Lumlan & Associates Pty Ltd	
		
Counsel for the Respondent:	Ms P Knowles	
		
Solicitor for the Respondent:	Minter Ellison	

IN THE FEDERAL COURT OF AUSTRALIA		
VICTORIA DISTRICT REGISTRY		
GENERAL DIVISION	VID 904 of 2013	

BETWEEN:	VINCENT EJUEYITSI
Applicant
	
AND:	DEAKIN UNIVERSITY
Respondent

JUDGE:	PAGONE J	
DATE OF ORDER:	28 NOVEMBER 2013	
WHERE MADE:	MELBOURNE	

THE COURT ORDERS THAT:

1.	The applicant is granted an extension of time to seek leave to appeal the orders of the Federal Circuit Court made 31 July 2013.
2.	The application for leave to appeal is dismissed.
3.	The applicant pay seventy-five percent (75%) of the respondent’s taxed costs.

Note:	Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA		
VICTORIA DISTRICT REGISTRY		
GENERAL DIVISION	VID 904 of 2013	

BETWEEN:	VINCENT EJUEYITSI
Applicant
	
AND:	DEAKIN UNIVERSITY
Respondent

JUDGE:	PAGONE J	
DATE:	28 NOVEMBER 2013	
PLACE:	MELBOURNE	

REASONS FOR JUDGMENT
1		Mr Vincent Ejueyitsi applies for an extension of time within which to seek leave to appeal and, if that extension is granted, seeks leave to appeal from the orders of the Federal Circuit Court made on 31 July 2013.  
2		On 31 July 2013 the Federal Circuit Court, constituted by Judge Whelan, dismissed an application by Mr Ejueyitsi on the grounds of his failure to prosecute his application.  Her Honour also struck out a statement of claim he filed on 26 June 2013.  Mr Ejueyitsi was present at the hearing at which her Honour made the orders striking out his statement of claim and dismissing his application on the grounds of failure to prosecute the proceeding.  At the conclusion of the hearing Mr Ejueyitsi informed her Honour that he was going to appeal her Honour’s decision on the grounds of denial of opportunity to amend his application and her Honour informed Mr Ejueyitsi that she would subsequently publish her reasons for the decisions.  Those reasons were provided to the parties on 9 August 2013 in open court with the parties having previously received notification dated 6 August 2013 that reasons would be published on 9 August 2013.
3		The background to the applications to this court concerns a dispute between Mr Ejueyitsi and Deakin University involving its suspension of Mr Ejueyitsi as a student for a period of time.  Mr Ejueyitsi had filed an originating application on 3 October 2012 seeking orders against Deakin University alleging that it had engaged in misleading and deceptive conduct, that the University had disclosed in its official policy documents something different from what Mr Ejueyitsi had detected in his dealings with the University, and that the system of the University was not transparent and had untimely feedback.  His application to the Federal Circuit Court was accompanied by a supporting affidavit of 3 October 2013.  On 13 December 2012 directions were made for the matter to proceed to a mediation to be conducted on 31 March 2013, for affidavits to be filed and served by 1 February 2013 and for the matter to proceed to trial on 20 May 2013.  The orders made on 13 December 2012 were subsequently varied to enable affidavits to be filed by 8 February 2013.  
4		On 28 March 2012 Mr Ejueyitsi filed an application to stay the Federal Circuit Court proceedings pending intervention by the Ombudsman.  That application was heard on 2 May 2013 but on that day Deakin University did not appear because it had not been served with the application.  The application which Mr Ejueyitsi had made on that day was misunderstood by the Federal Circuit Court as being to withdraw his originating application which had been filed on 3 October 2012.  In fact Mr Ejueyitsi wished to withdraw only the application which he had made on 28 March 2013 to stay the matter pending the Ombudsman’s intervention and, when the error was identified, the proceeding was re-listed in the Federal Circuit Court for 21 May 2013.  
5		On 14 May 2013 Mr Ejueyitsi lodged a document headed “Amendment of Application” purporting to amend his substantive application.  It was treated by the Federal Circuit Court as an application to amend and was listed to be heard as an application for leave to amend on 21 May 2013.  On that day the application filed on 3 October 2012 was reinstated and listed for final hearing on 31 July 2013 with an estimated hearing time of two days.  Orders were made for the filing of outlines of argument in the principal application but the application to amend was dismissed.  Mr Ejueyitsi was also informed that any subsequent application for leave to amend had to be confined to the narrowing of the issues in the then existing dispute relevant to the legislation pleaded, namely, the Competition and Consumer Act 2010 (Cth).
6		On 26 June 2013, despite the previous dismissal on 21 May 2013 of his application to amend, Mr Ejueyitsi filed a document headed “Statement of Claim” consisting of five pages plus attachments.  No application had been made for leave to amend the originating application and, of course, no leave had been given.  A month later, on 26 July 2013, Deakin University applied for orders to strike out the document headed “Statement of Claim” and supported that application with an affidavit by Jacquelin Alana Morris.  That application was also listed to be heard on 31 July 2013 together with the hearing of the substantive application commenced on 3 October 2012.
7		The substantive application, and Deakin University’s strike out application, came on for hearing on 31 July 2013.  The relevant facts and circumstances leading to the stringing out of his “Statement of Claim” and to the dismissal of Mr Ejueyitsi’s application were explained in her Honour’s reasons published on 9 August 2013:
“16. At the hearing on 31 July 2013 Ms NASSER (“Ms Nasser”), of Zindilis Lawyers, notified the Court that she had been engaged by the Applicant on 24 July 2013 to represent him; she however now sought leave to withdraw stating “At this point I would be seeking that I be - I seek leave to excuse myself from this matter. I’ve just had instructions that he does not - Mr Ejueyitsi  - no longer wishes for me to act”.

17. After leave was granted for Ms Nasser to withdraw the Applicant sought an adjournment of the matter in order to obtain legal representation. The Application was opposed by the Respondent. The Respondent pointed to the following:
·	The affidavit evidence in the matter had been before the Court and with the parties since February 2013.
·	The Applicant had been represented by Sabelberg Morcos Lawyers at the mediation.
·	On 24 July 2013, the Respondent was notified that Zindilis Lawyers now acted for the Applicant.
·	On 25 July 2013, Zindilis Lawyers had sought to have the matter adjourned by consent and had been notified on the same day that any application to adjourn the trial date would be opposed.
·	The Applicant has a prior history of withdrawing instructions on short notice, citing proceedings instituted by him in the Federal Court in 2012 appealing a decision by Jarrett FM in Ejueyitsi v Bond University [2012] FMCA 872 and proceedings in the High Court in October 2008 in  Ejueyitsi  v Maloney [2008] HCATrans 361 seeking to reinstate a special leave application.

18. The Court being of the view that the Applicant had had ample opportunity to seek legal representation, the application for adjournment was refused. 

19. The Applicant then notified the Court that he had not read the Respondent’s Application in a Case or the affidavit of Ms Morris. The Court was therefore adjourned for 70 minutes to enable the Applicant to read the documents. When the Court resumed, the Applicant stated that he did not have the documents and had not read them. He was unable to explain why he had not asked either the Judge’s Associate or the Respondent for copies.

20. The Respondent was asked to read the paragraphs in the affidavit of Ms Morris on which the Respondent relied. Those paragraphs referred to the history of the proceedings and to correspondence between the Applicant and the Respondent’s solicitors. 

21. With respect to the strike out application, the Respondent submitted that:
·	The history showed that the issue of an amendment to the Initiating Application was first raised by the Applicant on 17 February 2013. An attempt to amend the Application was finally made on 14 May 2013 and rejected by the Court on 21 May 2013. 
·	The ‘Statement of Claim’ was made in breach of the rules of the Federal Circuit Court Rules 2001 (Cth). 
·	No application had been made for leave to amend the Application.
·	The ‘Statement of Claim’ was unclear and ambiguous. It appears to be pleading a breach of contract but no particulars are identified. It also appears to seek a judicial review of some breach of ‘procedural fairness’ by the Respondent.
·	The ‘Statement of Claim’ does not establish the jurisdictional basis for the Court to deal with the matters raised.
·	The ‘Statement of Claim’ raises new causes of action which are unintelligible and not particularised.

22. The document submitted and headed ‘Statement of Claim’ is said to be an “Amendment basesd [sic] on Rules 8.21 of the Federal Court”.[7] That Rule refers to applications made to the Federal Court for leave to amend any originating application. The relevant rule for the purposes of proceedings in the Federal Circuit Court is Rule 7.01. No application has been made by the Applicant under that rule. 

23. The orders sought in the ‘Statement of Claim’ are as follows:
A. A declaration that the defendant is in breach of the Australian Competition and Consumer Act 2010: that the process followed by the defendant to arrive at its decisions defied procedural fairness, natural justice and other claims
B. Alternatively loss of tuition fees in respect to which the plaintiff is liable to the Commonwealth of Australia be refunded to the Commonwealth by the defendant
C. Or A [sic] review of the plaintiff papers and examination incidence by externally body based on the process applied by the defendant defied fair process;
	D. Costs
	E. Interest pursuant to statute.

24. The particulars however draw no connection between the matters pleaded and a breach of the provisions of the Act, nor the connection between that legislation and any power in the Court to declare that “the process followed by the defendant to arrive at its decisions defied procedural fairness, natural justice and other claims”.[9] 

25. The particulars provide no basis for the Court to conduct a general review of the procedural fairness of the ‘defendant’s process’ nor to order a “review of the plaintiff papers and examination incidence by externally body based on the process applied by the defendant defied fair process”.

26. I found the document to be unintelligible and incapable of founding the basis for proceedings within the jurisdiction of the Court. Further, the initiating proceedings were lodged on 3 October 2012. An application to amend the originating Application, in a form capable of being dealt with by the Court, ought to have been the subject of an application for leave to amend under Rule 7.01 long before this document was filed.

27. For these reasons the Respondent’s application to have the ‘Statement of Claim’ struck out was granted.

28. Following the Court dealing with the strike out application the Applicant was asked to open his case on the substantive application. The Applicant declined to do so stating he needed a barrister. The Applicant was advised that the issue of an adjournment in order for him to obtain legal representation had already been dealt with. The Applicant continued to insist that he needed a barrister.

29. The Applicant had previously represented himself in proceedings in this Court,  Ejueyitsi  v Bond University, and before the High Court (French CJ) in seeking leave to reinstate a special leave application.  All of the material before the Court lodged by the Applicant has been lodged under his own name.

30. The issue of representation being dealt with, in light of the Applicant’s refusal to open his case, the Application in this matter is dismissed for want of prosecution.
(footnotes omitted)
	Mr Ejueyitsi indicated on 31 July 2013 that he intended to appeal the decision pronounced by her Honour on that day.  Any appeal, if one was to be made, was required to be filed either by 14 August 2013 (if her Honour’s decision was interlocutory: Federal Court Rules 2011 (Cth) r 35.13(a)) or by 21 August 2013 (if her Honour’s decision was, or ought in the circumstances be treated as being understood by Mr Ejueyitsi as having been, a final order: Federal Court Rules 2011 (Cth) r 36.03(a)).  No appeal, or application for leave, was filed by either date. 
8		The appellate jurisdiction of the Court requires that leave be given from an interlocutory judgment:  Federal Court of Australia Act 1999 (Cth) s 24(1A).  A decision granting summary judgment is taken to be interlocutory for these purposes:  Federal Court of Australia Act 1999 (Cth) s 24(1D).  In Computer Edge Pty Ltd v Apple Computer Inc (1984) 54 ALR 767 Gibbs CJ (with whom Murphy and Wilson JJ agreed) said at 767-8:
“The test for determining whether a judgment is final…is whether the judgment finally determines the rights of the parties, and the authorities have held that the court in applying the test must have regard to the legal rather than the practical effect of the judgment.  So that the question in the present case is whether the whole judgment finally determined, in a legal sense, all the rights of the parties that were at issue in these proceedings.”
A decision dismissing a proceeding for want of prosecution determines whether the proceeding has been prosecuted with due diligence but does not legally determine the rights of the parties which had otherwise been agitated in the proceedings:  see National Mutual Life Association of Australasia Ltd v Grosvenor Hill (Qld) (2001) 183 ALR 700.  The decision made by her Honour was interlocutory and any appeal required leave.  
9		Mr Ejueyitsi did not apply for leave within the time required by the Rules and now seeks an extension of time within which to seek leave to appeal from the orders of 31 July 2013.  His application for extension of time and for leave was not formally made until 29 October 2013, but he had attempted to bring an appeal on 27 August 2013 and, in the circumstances, it is appropriate to extend the time within which he can apply for leave to appeal the decision.  By 29 August 2013 he had filed in the Melbourne registry of this Court a document in which he purported to appeal from the judgment of her Honour.  The document bears two date stamps placed by the Court; one being 27 August 2013 and the other being 29 August 2013.  It is not clear from the documents themselves why there are two dates stamped, but plainly the document was received by the Melbourne registry by 29 August 2013 at the latest.  It was said was in the respondent’s submissions that Mr Ejueyitsi had lodged his first notice of appeal with the Court’s Brisbane registry on 27 August 2013 and was received at the Melbourne registry on 29 August 2013, but that fact does not appear on the face of the document.  Either way it seems clear that by 27 August 2013 he had taken, or at least had attempted to take, a formal step within which to commence an appeal, although it was not an application for leave.
10		The period of time by which Mr Ejueyitsi sought to bring his application is fairly described by the respondent as “minimal” and I accept that Mr Ejueyitsi has provided an acceptable explanation for the delay.  It is clear that Mr Ejueyitsi intended to appeal as from 31 July 2013:  he said that expressly to her Honour.  He also said to this Court that he believed that the period in which to lodge an appeal ran from the date of publication of the reasons and, if that had been the case, an appeal would have been initiated within time if her Honour’s decision was, or in the circumstances should be treated as being, a final order.  The distinction between a final order and an interlocutory order which finally disposes of a proceeding may for present purposes be assumed to be a distinction which may not easily be understood by a lay and unrepresented litigant.  Mr Ejueyitsi seems not to have had legal advice or representation during the period within which an appeal, or application for leave to appeal, should have been made, and for present purposes I will assume that he would have understood the orders made on 31 July 2013, and the reasons published on 9 August 2013, as final and not interlocutory.  On that assumption Mr Ejueyitsi would have believed that he had 21 days in which to commence an appeal and that he believed that time to commence from the publication of reasons.  He also said that his delay was in part due to attempts to obtain a copy of the transcript of the proceedings which had taken place on 31 July 2013.  That is consistent with a diary note made by Ms Morris of a telephone conversation she had with him on 13 August 2013 when he had been seeking from Deakin University a copy of the transcript of the proceedings.  The diary note indicates that he was told by Ms Morris that she did not have a copy of the transcript but that he had been told by someone, who is not identified, that she, that is, that the University through her, should have a copy.  The diary note also refers to what had been said by the solicitor who had been acting for Mr Ejueyitsi for a time until 31 July 2013.  However, for present purposes it is clear that Mr Ejueyitsi had not intended to abandon any right of appeal, or any right to seek leave to appeal, during the period in which he ought to have sought leave to appeal and that his explanation for the failure to seek leave to appeal within time is explicable by error on his part and unfamiliarity with the specific rules and their application.  Mr Ejueyitsi is not a native English speaker and is not legally qualified.  During the period in question he was not represented by lawyers but was nonetheless actively seeking to challenge the outcome of the proceeding on 31 July 2013.  In those circumstances it is appropriate for time to be extended to permit the application for leave to appeal.  It is, therefore, to the application for leave to appeal to which I now turn.  
11		The Court has a wide discretion in deciding whether to grant leave to appeal an interlocutory matter.  The considerations derived from Niemann v Electronic Industries Limited [1978] VR 471 have long been held to provide an appropriate litmus test for the general run of cases in which leave to appeal from an interlocutory decision is sought:  Decor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 (“Decor”) at 399.  The first test is whether in all the circumstances the decision is attended with sufficient doubt to warrant its being reconsidered:  Decor at 398.  The second is whether substantial injustice would result if leave were refused supposing the decision to be wrong:  Decor at 398; see also Perananthasivam v Telstra Corporation Ltd [2007] FCA 1584.  
12		In applying these considerations to the proposed appeal for which leave is sought it is important to focus upon the proposed grounds in the context of what is sought to be appealed.  Her Honour dismissed Mr Ejueyitsi’s application on the grounds of his failure to prosecute the proceeding and not on the basis of her adjudication of the underlying merits.  The basal question is, therefore, whether there is sufficient doubt about her Honour’s decision that Mr Ejueyitsi had failed to prosecute his proceeding and whether any such sufficient doubt is relied upon in the proposed grounds of appeal.  Mr Ejueyitsi was represented by a lawyer at the hearing of this application for extension of time and leave to appeal.  
13		The proposed grounds of appeal were first set out in the document lodged with the Court on either 27 or 29 August 2013, however Mr Ejueyitsi has since prepared a document described as a draft notice of appeal which, in some respects, differs from the August document.  Strictly speaking the proposed grounds to be considered are those accompanying the formal application dated 29 October 2013 but in fairness to Mr Ejueyitsi it is appropriate to consider both those and the earlier grounds as the basis of his application for leave.  The grounds in the two documents overlap substantially although the latter document substitutes one proposed ground with another and adds an additional new proposed ground.  The expression of the proposed grounds in each case may not be as clear or as precise as it could be, but the sense of the proposed grounds is easily enough discerned.  Eight proposed grounds were raised in the first notice of appeal and are claims of:
(1)	a denial to Mr Ejueyitsi of a reasonable opportunity to obtain legal representation;
(2)	a failure by her Honour to take into account Mr Ejueyitsi’s “protest of foreign English construction speaking accents and possible skills and articulation if he was to be self-represented” in circumstances where the Court had previously misunderstood him;
(3)	a denial to Mr Ejueyitsi of natural justice by failing to adjourn the hearing of the proceeding to enable him to obtain legal representation in circumstances where such an adjournment would not prejudice the respondent as it did not have witnesses and therefore its costs were limited;
(4)	incorrectly referring to previous cases in which Mr Ejueyitsi had been self-represented when he had been afforded time to obtain legal representation and the proceeding was highly technical and required proper legal representation;
(5)	failing to find that Deakin University had been in breach of procedural fairness and in breach of the rules of natural justice when it suspended Mr Ejueyitsi without communicating its recommendations after an interview with him on an examination issue as this would have entitled him to an additional 30 minutes in which to complete an examination because the examiner had come in late and the applicant had not exhausted his time within which to complete the examination paper;
(6)	failing to understand whether Mr Ejueyitsi could particularise the Court’s jurisdiction or not in the matters it had pleaded;
(7)	not finding that the lost examination papers “defied” the claims by Deakin University of transparency, efficiency and effective and fair process and justice; and
(8)	her Honour not hiding her “apprehension of bias against” Mr Ejueyitsi.
The last of these grounds was wholly substituted in the subsequent draft notice of appeal and replaced with a new ground stating that the Federal Circuit Court had erred by failing to find that the trial miscarried because Deakin University had withheld evidence that Mr Ejueyitsi needed to run the trial.  An additional ground, however, was added in the subsequent draft notice, being that the Court had erred in failing to grant Mr Ejueyitsi access to an interpreter.
14		The proposed grounds have substantial overlap and many of them are irrelevant because they assume that her Honour dealt with Mr Ejueyitsi’s application other than on the basis of a failure to prosecute the proceeding (in particular grounds 5 and 7).  I will deal with the proposed grounds in groups to the extent that they raise similar issues and will refer to them by reference to the numbers in the previous paragraph and will refer to the two additional grounds in the draft notice of appeal as proposed grounds 9 and 10.
15		The first four proposed grounds of appeal in the document filed by Mr Ejueyitsi on 29 August 2013 are directed to her Honour’s refusal to adjourn the proceeding.  The first ground complained about the refusal to grant an adjournment as the denial of a reasonable opportunity to obtain legal representation, the second ground based the complaint on the basis that the Court ought to have placed greater weight upon Mr  Ejueyitsi’s protests of not being able to speak English appropriately for the occasion, the third did so on the basis that the balance of convenience favoured an adjournment, and the fourth did so on the basis that Mr Ejueyitsi was self-represented and had not been given sufficient time to obtain legal representation.  In other words, Mr Ejueyitsi relied upon four matters which he contended were reasons which required her Honour to have granted the adjournment he was denied.
16		A critical fact in her Honour refusing to give Mr Ejueyitsi an adjournment was the application made by the solicitor who had been representing him for leave to withdraw.  The solicitor, Ms Mary Nasser, gave a reason to her Honour which Mr Ejueyitsi contends in this proceeding, but not at the timeof the proceeding before her Honour, to be false.  Mr Ejueyitsi filed an affidavit on 23 October 2013 in support of his application for leave to appeal in which he said that he was shocked on 31 July 2013 by the reason his solicitor gave to her Honour for seeking to withdraw:
“It is my position that the solicitor I had withdrew from the court on a different reason different from the one she gave to the court.  The solicitor asked me to pay $1,650.00 into Zindilis law firm account and I have paid $900 plus $500, she asked me to pay the balance and I told her that I would pay the balance soon.  See attachment “A”.  The solicitor went to the court as she was coming, the solicitor to the respondent quickly intercepted my solicitor and had a talk with her for ten minutes, immediately she went in and told the Court that I asked her not to represent me.  Judge Whelan was shocked [Hon[ and I too was shocked because the court relied on her to assist me to present my case since there was a problem on 21/5/2013 when I went to ask the court to remove the stay order.  And the court did not understand me despite the fact that I spent approximately 30 minutes in the court”.
The claim by Mr Ejueyitsi of being surprised by what he heard his solicitor say to the Court on 31 July 2013 must be seen in light of what Ms Nasser is recorded as having said at the very commencement of the hearing.  The transcript from 31 July 2013 commences with Ms Nasser saying to her Honour:
“Good morning, your Honour.  At this point I would be seeking that I be – I seek leave to excuse myself from this matter.  I’ve just had instructions that he does not – Mr Ejueyitsi – no longer wishes me to act.  Your Honour, I was only retained on this file last week.  I did initially seek an adjournment and we were definitely not prepared for a final hearing.  There are affidavits missing, but that adjournment was going to be opposed and now I have instructions that he does not wish for me to act for him and he would be taking over.”
No further reason was offered by Ms Nasser for her seeking leave to withdraw at the start of the hearing apart from any implication that may be drawn from her reference to the fact that she had initially sought an adjournment and that she was not prepared for a final hearing.  There had been communications between the solicitors before 31 July 2013 in which Mr Ejueyitsi’s solicitor sought an adjournment and was told that the University would oppose any adjournment.  That fact was communicated by Ms Nasser to Mr Ejueyitsi before the day of the hearing.  Indeed, Mr Ejueyitsi tendered in his application to this Court a recording of a text message said to have been made to him by Ms Nasser before 31 July 2013 in which he was told that an adjournment was not possible and that she could not act for him at the hearing.  However, there is a contrast between Mr Ejueyitsi’s claim in this proceeding before this Court of surprise at what Ms Nasser said and the statement made by her that it had been him who had withdrawn the instructions.  Mr Ejueyitsi did not call Ms Nasser to corroborate his account of what occurred whether by explanation of a misunderstanding or to put to her that she had falsely stated the position to her Honour on 31 July 2013.  Rather, Mr Ejueyitsi asserted in his affidavit that Ms Nasser of Zindilis Lawyers had “made a false statement that [Mr Ejueyitsi] had asked her not to represent [him]”.  The fact is that her Honour proceeded on the evidence before her, including what the solicitor had said when seeking to withdraw, and no error was shown to have been made by her Honour on the evidence before her.
17		Mr Ejueyitsi also sought to rely upon a print-out of text messages, to which I have referred, which he claimed had been made to him from Ms Nasser before the hearing on 31 July 2013.  The print-out of the text messages was made on 18 August 2013 and included two text messages which the print-out suggests were made on 14 August 2013 and five which the print-out suggests were made on 18 August 2013 rather than before 31 July 2013.  One of them, which the print-out suggests was made on 18 August 2013, was said by Mr Ejueyitsi to have been made by Ms Nasser not on 18 August 2013, as the print-out would suggest, but before the hearing took place on 31 July 2013.  I accept his evidence concerning the date of the text message because its contents are consistent with that having been so, notwithstanding that the print-out suggests otherwise and that the respondent proffered a hypothesis which might explain the text as having been made on 18 August 2013 (rather than before 31 July 2013).  However, accepting Mr Ejueyitsi’s evidence about the date of the text message from Ms Nasser, its content undermines any surprise on 31 July 2013 that his solicitor would seek leave to withdraw as his solicitor at the commencement of the hearing and that he would not obtain an adjournment.  The text message was:  
“You havr placed $1400.  $990 has been used for prep. My appearance fee is $1650.  The $500 was for the barrister – which I will return to you.  I will appear to take my name off the record only.  I do not have sufficient funds in trust and I do not have clear instructions.  you want an adjournment but this is not possible now that they have made an application to strike out the matter.  You may be ordered to pay costs if you get the adjournment.  Bring $1650 and I can assist you yhe best I can.  The policy at Zindilis needs to be followed strictly and under no circumstances can it be altered.  We are a private firm”.
Whatever else may be said about this text message, what it shows (assuming it was received before 31 July 2013 as Mr Ejueyitsi maintains) is that he knew before the hearing commenced that Ms Nasser was appearing only to take her name off the record and that she would not be appearing to assist him on the day.  It is also clear that he was being told by his lawyer that an adjournment would not be obtained and that the proceeding would proceed, therefore, without him being legally represented.
18		Whatever may have been the subjective belief of Mr Ejueyitsi, her Honour proceeded from what she had been told in open court by a solicitor and officer of the court.  What Ms Nasser had said to her Honour was not contradicted by him at the hearing however shocked he subsequently said that he was.  He did, it is true, make an application to adjourn the proceeding to obtain legal representation for reasons which included that he was concerned that the Court might misunderstand his accent, but the application was opposed and her Honour was required to rule upon his application to adjourn the proceeding on all of the material before her.  The respondent was ready to proceed and maintained its interest in the finality of litigation.  Her Honour had evidence of Mr Ejueyitsi having commenced the proceeding as a self-represented litigant and of having conducted some aspects of the matter without legal representation.  There was also some evidence of Mr Ejueyitsi having obtained, but not retained, legal representation from four different law firms during the course of the proceeding; a circumstance which would not have given the Federal Circuit Court any confidence that Mr Ejueyitsi would obtain and then retain legal representation for the conduct of the proceeding at an adjourned date in the future.  Deakin University had expended costs and time in preparing for the matter and the material had been filed for its hearing on the day which had been set down for the matter to be heard.  Mr Ejueyitis, of course, did not refer her Honour to the text message he had previously received from his solicitor informing him that she would not be acting for him and her advice to him that the hearing would not be adjourned, but chose rather to rely upon his having become unrepresented on the morning, in his particular circumstances, as the basis upon which he maintained that the proceeding had to be adjourned.  It was not a case of her Honour being told that he knew about his solicitor refusing to represent him and him taking steps to find alternative representation.  Indeed, the text message, had it been disclosed would have revealed to her Honour that the solicitor had offered to assist him at the hearing as best she could provided he paid her fee.  In other words, the material before me sought to be relied upon by Mr Ejueyitsi does not support his case that the basis upon which her Honour proceeded was anything other than one which was open to her upon the evidence and, indeed, contains evidence that he did not take steps to ensure that he be represented at the hearing by paying the fee his lawyer had sought.  In those circumstances I do not consider there to be sufficient doubt to warrant a reconsideration of her Honour’s decision not to adjourn the proceeding.
19		At the hearing itself Mr Ejueyitsi was otherwise given an opportunity to conduct the proceeding.  He was invited to open his case but refused to do so.  His refusal was, of course, made in light of the Court’s refusal to have granted him an adjournment and of his protestations that he was unable to conduct the proceeding without the assistance of lawyers, but her Honour attempted on more than one occasion to have Mr Ejueyitsi open and present his case.  There was, therefore, no error in her Honour finding that he failed to prosecute the proceeding.  
20		The sixth ground of appeal in the August notice of appeal concerned Mr Ejueyitsi’s attempt to rely upon the document which had been filed as a “Statement of Claim”.  Her Honour’s decision to strike out the “Statement of Claim” is also not attended with sufficient doubt to warrant reconsideration on appeal.  The short point is that Mr Ejueyitsi’s attempt to rely upon the “Statement of Claim” had been to do that which had been ruled against him previously.  Her Honour explained her reasons in this respect in paragraphs 22 to 27.  During the course of the proceeding on 31 July 2013 her Honour also said:
“In relation to the statement of claim which appears to have been filed on 26 June 2013, I make the following comments.  First of all, it appears to have been based on the rules of the Federal Court, not the Court Rules of the Federal Circuit Court, which are the relevant Rules.  Secondly, I find it to be unintelligible and I am unable to discern exactly what is the cause of action that is being pleaded in this document.  Thirdly, there was previously order made that refused an application to amend.  There has not been an application made to this Court further to amend, and as far as I’m concerned, to seek to institute some new cause of action – which I’m still not clear as to what precisely it is – at this point in the proceeding, is inappropriate and are matters which the Court should not allow.  On that basis, the statement of claim will be struck out.  In relation to the issue of costs of this application, I will consider that in the context of the determination of the substantive matter.”
	Mr Ejueyitsi was on notice of the application to strike out his document styled “Statement of Claim” and knew that the strike out application was to be heard and determined on 31 July 2013.  An earlier application to “amend” had been refused and the fresh document, without leave, sought to achieve the same thing which had been ruled against him.
21		The remaining proposed grounds of appeal in the original notice are not the basis upon which her Honour made orders and need not be considered in any detail.  The fifth ground, for example, was not a complaint that her Honour erred in dismissing the proceeding for a failure of prosecution by Mr Ejueyitsi but that he ought to have succeeded in the application had it been heard because Deakin University was said to have been in breach of procedural fairness and natural justice in relation to his suspension.  The seventh ground was similarly directed to Mr Ejueyitsi’s claims against Deakin University and not an error in her Honour’s disposition of the proceeding as a failure by him to prosecute the proceeding.  The first additional ground found in the draft notice of appeal (ground 9) is also directed to the underlying dispute which was not the manner in which her Honour disposed of the proceeding.  The eighth ground in the original notice of appeal seems to have been abandoned by Mr Ejueyitsi by the subsequent draft notice but, in any event, was not supported by any particulars nor was it the subject of any submission on his behalf at the hearing.  
22		The last ground to be considered is the second new proposed ground (ground 10) in the draft notice of appeal, namely, that her Honour failed to provide Mr Ejueyitsi with an interpreter.  Her Honour rejected his request for an adjournment on the basis that her Honour was satisfied that she was able to understand him.  Mr Ejueyitsi maintained his need for an interpreter in the context of his failure to have obtained an adjournment on the basis that he was left without legal representation on the day which had been set for the hearing of his application.  The relevant exchange between him and her Honour was:
“Mr Ejueyitsi:  What I’m saying is my accent is very difficult for the Court to understand so I want to an interpreter.
Her Honour:  I’m understanding what you’re saying now, Mr Ejueyitsi.”
It can be accepted that Mr Ejueyitsi had some difficulty with being understood and some difficulty of expression.  However her Honour’s conclusion that she was able to understand him revealed both in the statement quoted above and in the balance of the transcript from which it can be seen that her Honour was able to understand what Mr Ejueyitsi was saying indicates that there is insufficient doubt to warrant a reconsideration on appeal.
23		The considerations to which I have referred also lead me to conclude that there is no substantial injustice that would result if leave were refused supposing the decision to be wrong.  Considerations relevant to that issue must also focus upon the decisions made by her Honour as distinct from the underlying dispute between Mr Ejueyitsi and Deakin University.  Mr Ejueyitsi’s application had been set down for trial on 31 July 2013 and the respondent was entitled to expect the hearing of the proceeding to occur on that day.  It was within Mr Ejueyitsi’s control to be represented at the hearing and he was obliged to be ready to prosecute it on the day whether by having legal representation or by himself being ready to present the case.  It was within his control to arrange for the former and he made no attempt to do the latter.  Indeed, if it be relevant, the evidence relied upon by Mr Ejueyitsi shows that the solicitor who had been acting for him had sent him a text message before the hearing saying that she would have appeared at the hearing if he had paid the fee.  
24		Accordingly there will be orders extending the time within which to make the application for leave to appeal and dismissing the application for leave.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Pagone.	

Associate:

Dated:	28 November 2013