FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Adata (Vic) Pty Ltd (No 2)
[2015] FCA 272 

Citation:	Australian Competition and Consumer Commission v Adata (Vic) Pty Ltd (No 2) [2015] FCA 272	
		
Parties:	AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v ADATA (VIC) PTY LTD ACN 099 814 749, ADATA (CARRIERS) PTY LTD (ACN 072 129 321) and WAYNE WRIGHT	
		
File number:	NTD 19 of 2014	
		
Judge:	REEVES J	
		
Date of judgment:	26 March 2015	
		
Catchwords:	PRACTICE AND PROCEDURE – application for dispensation of rule 4.01(2) – second interlocutory application on same issue – whether second application based on change of circumstances – whether second application an abuse of process – relevant principles 	
		
Legislation:	Federal Court of Australia Act 1976 (Cth) 
Federal Court Rules 2011 (Cth) 
Civil Procedure Act 2005 (NSW) 
Supreme Court Act 1970 (NSW) 
Limitation of Actions Act 1958 (Vic) 	
		
Cases cited:	Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc (1981) 148 CLR 170
Australian Competition and Consumer Commission v Adata (Vic) Pty Ltd [2014] FCA 1453
Australian Equity Investors, An Arizona Limited Partnership v Colliers International (NSW) Pty Ltd (No 3) [2011] FCA 100
Brimaud v Honeysett Instant Print Pty Ltd (Supreme Court of New South Wales, McLelland J, 19 September 1988, unreported) 
Carr v Finance Corporation of Australia (No 1) Ltd (1981) 147 CLR 246
DA Christie v Baker [1996] 2 VR 582
Fletcher v Besser [2010] NSWCA 30
Hall v Nominal Defendant (1966) 117 CLR 423
Langdale v Danby [1982] 1 WLR 1123
NA Retail Solutions Pty Ltd v St George Bank Ltd (2010) 267 ALR 599; [2010] FCA 290
National Parks and Wildlife Service v Pierson (2002) 55 NSWLR 315; [2002] NSWCA 273
Nominal Defendant v Manning (2000) 50 NSWLR 139; [2000] NSWCA 80
P Dawson Nominees Pty Ltd v Australian Securities and Investments Commission (No 2) (2009) 255 ALR 466; [2009] FCA 413
Symes v Holbrook [2005] FCAFC 219
Tropical Reef Shipyard Pty Ltd v QBE Insurance (Australia) Ltd (No 2) (2010) 274 ALR 626; [2010] FCA 1093
Vivo International Pty Ltd v Tivo Inc [2012] FCA 1167
Wickstead v Browne (1992) 30 NSWLR 1
Windsor v Sydney Medical Service Co-operative Ltd (No 2) [2009] FCA 704 	
		
Date of hearing:	6 February 2015	
		
Place:	Brisbane (via videolink to Darwin)	
		
Division:	GENERAL DIVISION	
		
Category:	Catchwords	
		
Number of paragraphs:	55	
		
Counsel for the Applicant:	Mr D Star	
		
Solicitor for the Applicant:	Mr J Love, Norton Rose Fulbright	
		
Solicitor for the First and Second Respondents:	The First and Second Respondents did not appear	
		
Solicitor for the Third Respondent:	Mr Wright appeared on his own behalf	

IN THE FEDERAL COURT OF AUSTRALIA		
NORTHERN TERRITORY DISTRICT REGISTRY		
GENERAL DIVISION	NTD 19 of 2014	
 
BETWEEN:	AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
Applicant
	
AND:	ADATA (VIC) PTY LTD ACN 099 814 749
First Respondent

ADATA (CARRIERS) PTY LTD (ACN 072 129 321)
Second Respondent

WAYNE WRIGHT
Third Respondent

JUDGE:	REEVES J	
DATE OF ORDER:	26 March 2015	
WHERE MADE:	BRISBANE (VIA VIDEOLINK TO DARWIN)	

THE COURT ORDERS THAT:

1.	The third respondent’s application filed 6 February 2015 is dismissed.
2.	The third respondent is to pay the applicant’s costs of and incidental to its application filed 6 February 2015.

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

IN THE FEDERAL COURT OF AUSTRALIA		
NORTHERN TERRITORY DISTRICT REGISTRY		
GENERAL DIVISION	NTD 19 of 2014	
 
BETWEEN:	AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
Applicant
	
AND:	ADATA (VIC) PTY LTD ACN 099 814 749
First Respondent

ADATA (CARRIERS) PTY LTD (ACN 072 129 321)
Second Respondent

WAYNE WRIGHT
Third Respondent

JUDGE:	REEVES J	
DATE:	26 March 2015	
PLACE:	BRISBANE (VIA VIDEOLINK TO DARWIN)	

REASONS FOR JUDGMENT
INTRODUCTION
1		Mr Wayne Wright, the third respondent in these proceedings, is the sole director and shareholder of the first and second respondents, Adata (Vic) Pty Ltd and Adata (Carriers) Pty Ltd (together, the corporate respondents). 
2		Mr Wright has applied under r 1.34 of the Federal Court Rules 2011 (Cth) (the Rules) for an order granting both corporate respondents dispensation from compliance with r 4.01(2) of the Rules.  Rule 4.01(2) provides that a corporation must not proceed in this Court other than by a lawyer.  Dispensation from compliance with that rule would allow Mr Wright to represent the corporate respondents in the substantive proceedings notwithstanding that he is not a lawyer.
3		The procedural history to this matter bears significantly upon how this application should be determined.  It is therefore appropriate to begin by briefly describing that history.
PROCEDURAL HISTORY 
4		Mr Wright has previously made an application under r 1.34 of the Rules for dispensation from compliance with r 4.01(2) of the Rules.  However, that application sought dispensation only in relation to the first respondent, Adata (Vic) Pty Ltd, not both corporate respondents.  I dismissed that application on 18 November 2014 (the first application):  see Australian Competition and Consumer Commission v Adata (Vic) Pty Ltd [2014] FCA 1453. 
5		It is not necessary to reiterate here the reasons I gave for dismissing Mr Wright’s first application, except to say that the overriding consideration was whether dispensing with the requirements of r 4.01(2) would assist me to dispose of this proceeding in accordance with the precepts set out in s 37M of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act).  I concluded that it would not.
6		Following my dismissal of Mr Wright’s first application, the Commission filed an application seeking default judgment against all respondents under r 5.23(2)(c) of the Rules.  Late on the evening before I was to hear the Commission’s application, Mr Wright filed his current application.  In support of this application, Mr Wright relied on two affidavits sworn by him on 3 February 2015 and 5 February 2015, and a document headed “Outline of Submissions”.
7		The primary issue raised by this application is whether Mr Wright should be precluded from bringing it in circumstances where he failed on his first application in connection with the same issue.
PRINCIPLES RELEVANT TO THE RE-AGITATION OF AN ISSUE DETERMINED IN AN EARLIER DECISION
A complicated issue
8		Before turning to the submissions of the parties on this application, it is convenient to outline the principles relevant to the re-agitation of an issue that has been the subject of an earlier decision of a court; in particular, to a situation where a court is asked to consider a second interlocutory application by a party, where that party has previously failed in a decision on an interlocutory application on the same, or a similar, issue.
9		The circumstances in which a court would reconsider such an application are complicated.  They depend upon a range of factors, including:  the status of the earlier order, that is, whether it was a final order, or an interlocutory one; the reasons advanced for the reconsideration of the matter, for example, the acquisition of fresh evidence to support the application; and the nature of the application, that is, whether it involved a question of practice and procedure, or whether it sought some relief prescribed by a statute, or whether it sought prerogative relief, to name just a few.
10		The complications involved are aptly demonstrated by the divergent views expressed on this issue by the majority and dissenting judges in two seminal decisions of the Courts of Appeal of Victoria and New South Wales:  DA Christie v Baker [1996] 2 VR 582 (Christie) and Nominal Defendant v Manning (2000) 50 NSWLR 139; [2000] NSWCA 80 (Manning), respectively.
11		In P Dawson Nominees Pty Ltd v Australian Securities and Investments Commission (No 2) (2009) 255 ALR 466; [2009] FCA 413 (P Dawson), Goldberg J described those divergent views as falling into two camps, as follows (at [40]):
(a)	what is said to be the strict view of Brooking and Hayne JJA in D A Christie Pty Ltd v Baker [1996] 2 VR 582 (“Christie”) and Mason P in Manning;

(b)	what is said to be the liberal view of Charles JA in Christie and of Heydon JA and Foster AJA in Manning.
The Victorian Court of Appeal in Christie
12		In Christie, the plaintiff applied to the Victorian County Court for an extension of time within which to bring proceedings, claiming damages for injuries he had suffered in the course of his employment.  His application was made under s 23A of the Limitation of Actions Act 1958 (Vic).  The application was refused because he did not provide a sufficient explanation for his delay.  The plaintiff did not appeal that decision but, some two years later, he made a second application under the same statutory provision to a different judge of the same Court, supported by additional evidence to better explain his original delay.  The second application was granted.  The primary judge found that no issue estoppel was created by the determination of the first application and the extension of time should be granted on its merits.  The defendant appealed on the ground that the additional evidence provided on the second application was available to the plaintiff at the time of his first application and there was no explanation as to why it was not put forward at that time.
13		Following the High Court’s decisions in Hall v Nominal Defendant (1966) 117 CLR 423 (Hall) and Carr v Finance Corporation of Australia (No 1) Ltd (1981) 147 CLR 246 (Carr), Hayne and Charles JJA held that the first application did not result in any final determination of the rights of the parties and did not therefore give rise to any cause of action estoppel, issue estoppel or Anshun-type estoppel:  see Hayne JA at 601–603 and Charles JA at 606 and 610–611.  In dissent on this aspect, Brooking JA held that, where the critical question was defined by statute, a failure on that issue on the first application did give rise to an issue estoppel which prevented a second application:  at 597.
14		However, while no estoppel arose (or on the assumption that was the case with Brooking JA at 597), Hayne and Brooking JJA held that, since the additional evidence was available to the plaintiff at the time of his first application and he gave no explanation as to why he did not adduce it at that time, the second application should have been stayed as an abuse of process:  Brooking JA at 597–598 and Hayne JA at 602–605.
15		Hayne JA identified as exceptions to this rule cases where there was:  “… proof of fraud or it is sought to adduce fresh evidence, ‘fresh’, that is, in the sense in which that expression is used in connection with the admission of evidence on appeals”:  at 605.  His Honour gave a number of reasons for reaching this conclusion, including (at 602 and 605–606):
(a)	the private interest of a respondent to an application in having certainty on a question determined, whether interlocutory or final;
(b)	the public interest in ensuring that judicial determinations are binding, final and conclusive;
(c)	the public interest in avoiding conflicting decisions on the same issue;
(d)	the need to discourage applicants from “judge-shopping”; and
(e)	the undesirability of vexing a respondent with additional costs, even where a costs order may ultimately be made on an indemnity basis.
16		In his dissenting judgment, Charles JA agreed with Hayne JA that the appeal should be determined on the principles of abuse of process, and with both Brooking and Hayne JJA that successive applications were highly undesirable:  at 606.  However, in the circumstances, his Honour was not willing to find that the plaintiff’s actions amounted to an abuse of process.  The essential element of his Honour’s reasoning was that, where the earlier order was an interlocutory order, for there to be an abuse of process, something more was required than simply making a second application supported by additional facts that did not amount to fresh evidence.  On his path to reaching this conclusion, Charles JA considered what would have happened if the plaintiff had sought leave to appeal the dismissal of his first application and applied to adduce as further evidence on that appeal the additional evidence that was subsequently adduced on the second application.  His Honour noted that, before 1995, there was a requirement in the Victorian Supreme Court Rules for special grounds and special leave to adduce further evidence whether there had been a determination on the merits.  However, as his Honour pointed out, in appeals from interlocutory applications “a Court of Appeal has a much wider discretion to receive further evidence”:  at 609.  His Honour then proceeded to note that the abovementioned requirements had been removed from the Rules when those Rules were redrafted in 1986.  The result was, as his Honour observed (at 610):
This new rule as to the appellate court’s power to receive further evidence no longer maintains any distinction between “interlocutory applications” and a “hearing of any cause or matter upon the merits”.  The new rule also removed the distinction between evidence occurring subsequent to the trial and evidence in existence at the time of trial.
17		Significantly, his Honour then observed that (at 610):
In New South Wales and Queensland these distinctions remain.  “Special grounds” need not be shown in these States where the appeal is not brought after a trial on the merits but is an appeal from an interlocutory determination …
18		One of the cases his Honour cited in support of this conclusion was Wickstead v Browne (1992) 30 NSWLR 1 (Wickstead) at 11.  Charles JA therefore concluded (at 610):
Accordingly, in my view, it is by no means established that the additional evidence brought forward by the applicant to support the [first] application would have been excluded if the applicant had sought leave to appeal from the dismissal of the [first] application and had tendered this evidence on the appeal.  The better view is, I think, that the Court of Appeal could have given leave for such evidence to be adduced, although the discretion to give leave would be exercised with caution.
19		And, further (at 610):
I do not think it is open to this court to adopt a rule which would preclude, as an abuse of process, the making of a second application for an extension of time simply because the applicant seeks to bring forward additional relevant facts which would not satisfy the “fresh evidence” rule.
20		And finally, after returning to consider the High Court’s decisions in Hall and Carr (at 611):
… I conclude that it is not possible for this court to adopt a rule which would preclude an unsuccessful applicant for interlocutory orders from repeating the application, on the ground of abuse of process, simply because the applicant sought to rely on additional relevant facts which did not amount to fresh evidence. Some other factor must, in my view, be present before an abuse of process is established, although, since the respondent is being faced a second time with an application for extension of time to bring proceedings, the potential for the second application to amount to an abuse is readily apparent.
21		Charles JA then turned to examine the course taken during the hearing of the second application to determine whether, in all the circumstances, he considered the second application constituted an abuse of process.  After conducting that examination, his Honour concluded that it did not:  at 612.  Nonetheless, in the course of that examination, his Honour did outline a number of circumstances where, in his view, a second application could amount to an abuse of process.  They included (at 611–612):
(a)	making a third or subsequent application after a second or subsequent rejection;
(b)	bringing a second application based on facts and submissions entirely identical to those previously rejected; and
(c)	seeking to tender evidence at a second hearing, which evidence was considered and rejected at the first hearing.
The New South Wales Court of Appeal in Manning
22		Like Christie, Manning involved an application for leave to bring proceedings claiming damages for personal injuries out of time.  The first application was refused and the plaintiff brought a further application before a different judge of the same Court, supported by additional evidence not produced at the first application.  On the second application, leave was granted to commence the proceedings.  That decision was then appealed to the New South Wales Court of Appeal.  Unlike in Christie, the appeal was not argued on the basis of issue estoppel, but rather solely on whether the second application was an abuse of process.  The majority in Manning, Heydon and Foster JJA, were persuaded by the dissenting judgment of Charles JA in Christie and declined to follow the majority judgment in that case.
23		Much of the reasoning of Heydon JA related to the provisions of the Supreme Court Act 1970 (NSW) dealing with the receipt of further evidence on appeal and the New South Wales decisions that had considered those provisions:  at [49]–[60].  In this respect, his Honour began by pointing to the reasoning of Charles JA in Christie and said (at [49]):
The essence of Charles JA’s approach is that since new evidence can be admitted on appeals from interlocutory decisions with leave but without demonstration of special grounds (not only in Victoria, but also, for different reasons, in New South Wales and England) it would be anomalous if new evidence could not be received on a further application made in the court below without an appeal.
24		His Honour noted that Hayne JA had identified a “converse anomaly” as follows (Christie at 605, cited at [49] in Manning):
… there is in my view a considerable tension between saying that an appellate court should not receive the further evidence which the applicant desires to adduce to bridge a gap in proofs that was identified below, whereas a judge at first instance not only may receive that material but presumably must receive it and determine the application taking it into account.
25		Heydon J observed that this difference partly flowed from the liberal/restrictive dichotomy outlined in the judgments in Christie and posed the question:  “Which approach is correct, as a matter of New South Wales law?”:  at [49].  In answering that question, the decision of Wickstead was central to his Honour’s reasoning.  It will be recalled that Charles JA cited that decision in Christie when highlighting the differences, on this question, between the law in Victoria, on the one hand, and that in New South Wales and Queensland, on the other (see [17]–[18] above).  In addition to considering Wickstead and a number of New South Wales decisions on the question, his Honour also considered a decision of the House of Lords (Langdale v Danby [1982] 1 WLR 1123) on comparable provisions of the Rules of the Supreme Court (at [61]–[66]).  Then, after highlighting a number of relevant discretionary considerations (at [67]–[69]), his Honour concluded (at [70]–[73]) that:
(a)	the decision of Charles JA in Christie, on the construction of the New South Wales legislation, was consistent with the approach taken in the relevant New South Wales decisions on the question of receiving evidence on appeals from interlocutory orders and there was therefore no reason that the majority reasoning in Christie should be followed as a matter of comity or otherwise.  Rather, the position propounded by Charles JA should be applied in New South Wales to avoid “anomalous differences” arising (at [70]);
(b)	it was not necessary, and was probably undesirable, to seek to define a test capable of general application in all cases (at [71]); and
(c)	since there were obvious difficulties attendant upon a litigant bringing a second interlocutory application, the evils identified by Hayne JA in Christie should be addressed by each court using its individual discretion (at [72] and [73]).
26		In relation to (b) above, earlier in his reasons, his Honour cautioned against the development of a general rule of practice preventing successive interlocutory applications, observing that the “over-riding principle governing the approach of the Court to … interlocutory applications” must be to do “whatever the interests of justice require[d] in the particular circumstances of the case”:  at [46].
27		On the last point (that in (c) above), Heydon JA declined to adopt the approach outlined by Hayne JA in Christie, saying (at [72]–[73]):
The real evils to which Hayne JA referred – the risk of conflicting decisions, the unnecessary vexing of respondents, judge-shopping and the diminution of certainty in the conduct by respondents of their affairs … damaging public confidence in the integrity of judicial decisions, expending time and money on litigation unnecessarily – are evils which each court in its individual discretion will rightly strain to avoid. But the risk of the evils must be balanced against all the circumstances of the case relevant to whether it is fair and just that leave should be granted, and in particular whether a trial which is just and fair to all parties can be held. 
28		On this aspect, Heydon JA had earlier identified some of the factors that he considered would most likely result in a second interlocutory application being dismissed as an abuse of process in the exercise of the Court’s discretion, as follows (at [67]):
A second application without additional evidence would smack of judge-shopping and be unlikely to succeed. If at a second interlocutory hearing new evidence is called which could have been called earlier, the absence of a satisfactory explanation for the failure to do so is a factor increasing the risk of dismissal. Another relevant matter would be whether in the second hearing the court was invited to revisit questions of law which had been fully argued. Yet another relevant matter would be whether in the second hearing the court was being invited to re-open factual matters investigated in and decided.
29		The other member of the majority in Manning, Foster AJA, conducted a detailed examination of the reasoning of the three judges in Christie (at [104]–[118]) and was ultimately persuaded by the dissenting judgment of Charles JA.  In particular, having regard to the corresponding provisions of the Supreme Court Act 1970 (NSW), his Honour was persuaded by the observations of Charles JA that the approach outlined by Hayne JA in Christie:
… not only effectively deprives the applicant of any right to make a second application save on the basis of fraud or additional facts which amount to fresh evidence, but in so doing makes it more difficult for the applicant to bring forward additional facts on the second application than if the applicant had simply appealed the dismissal of the first application, and had sought to adduce that evidence on the appeal with leave of the court.
See [118]–[122].
30		Having adopted the approach outlined by Charles JA in Christie, his Honour then turned to consider whether the trial judge had erred in the exercise of his discretion and, in doing so, carefully considered each of the matters that counsel for the appellant had relied upon to submit that the second application was an abuse of process.  In that process, his Honour found that the second application was not simply a repetition of the previously failed application, but was a “genuine endeavour to repair the deficiencies in the first application” and, further, he did not consider that the second application was a case of “hawking” the application from judge to judge in search for a successful outcome:  at [124].  After making a careful and detailed examination of the whole of the circumstances surrounding the proceedings, including the conduct of the plaintiff’s solicitors, his Honour concluded that there was no other factor that demonstrated that the trial judge was in error in the exercise of his discretion to allow the extension of time.
31		In his dissenting judgment in Manning, Mason P concluded that the second application was an abuse of process for the reasons given by the majority in Christie:  at [7].  His Honour observed (at [10]) that there was:
A long line of authority attest[ing] to the practice of courts hearing interlocutory applications on matters of substance declining to allow a second contested run at the target where the only change of circumstances is an applicant coming forward with new evidence.
32		One of the decisions cited by his Honour in support of this long line of authority was Brimaud v Honeysett Instant Print Pty Ltd (Supreme Court of New South Wales, McLelland J, 19 September 1988, unreported) (Brimaud).  After quoting from the decision in Brimaud and identifying the principle stated therein as a “rule of practice” (at [12]), his Honour specifically agreed with the reasoning of Hayne JA in Christie, in the following terms (at [19]):
I agree with the reasoning of Hayne JA in Christie. Subject to possible and presently irrelevant exceptions, the principle expressed as the “ordinary rule of practice” in Brimaud means that an attempt to evade that principle in a second substantive interlocutory application is an abuse of process. Once the court detects this and satisfies itself that the case falls within the letter and spirit of the rule of practice then the application should be dismissed.
33		His Honour strongly disagreed with the majority view that the question should be approached as a question of judicial discretion rather than as a rule of practice.  On this question, his Honour observed (at [20]):
If there is no principled general rule then there will be an area of pure judicial discretion. I prefer to avoid this if possible, if only because it lends itself to the perception that the persistent applicant’s rights vary from judge to judge and, in the final analysis, depend upon no pre-existent principle. 
34		Mason P also disagreed with Charles JA in Christie about the anomaly that would have arisen if the plaintiff had appealed the first application and applied to tender his additional evidence in that appeal.  His Honour said of this:
[27] … To my mind, there is nothing anomalous in preserving the rule of practice at first instance while recognising that the Court of Appeal has (by statute) power to admit evidence which would not be “admitted” under the rule of practice.

[28] The applicant for leave to appeal requires leave to adduce further evidence and the Court of Appeal may take account of the reasons why it was not adduced in the original application under appeal. Admittedly there is inconvenience in requiring an appellate court to address the evidentiary deficiencies of the first application. But the alternative is to permit the appearance and (at times the reality) of first instance judge-shopping. This is incompatible with the policies underpinning the abuse of process doctrine (at [5] supra): see Saif Ali v Sydney Mitchell & Co [1980] AC 198 at 222F. The evils of abuse of process are avoided if the sole gateway for overcoming the evidentiary deficiencies of an unsuccessful first application is at the appellate level and in the limited context of determining whether the first interlocutory application miscarried.

[29] There are additional benefits that can be placed in the scales: adherence to the rule of practice promotes greater efficiency in the first place and it ensures that the fresh or new evidence is viewed against the template of the evidence and issues adduced in the first application under appeal.
35		The reasoning of the majority in Manning was subsequently approved by the New South Wales Court of Appeal in National Parks and Wildlife Service v Pierson (2002) 55 NSWLR 315; [2002] NSWCA 273 (Pierson), where Palmer AJA said (at [19]), citing Foster JA in Manning (at [97]):
… the overriding principle governing the approach of the court to interlocutory applications is that the court should do whatever the interests of justice require in the particular circumstances of the case.
36		Notably, earlier in his judgment, Palmer AJA emphasised (at [17]) that:
… nothing said by their Honours [in Manning] could be construed as indicating a permissive or relaxed attitude of the court to the bringing of more than one interlocutory application for the same order – indeed, quite the contrary:  see, eg, per Heydon JA at (at 156 [72]).
37		From this brief review of the decisions in Christie and Manning, it seems to me that the difference in approach adopted by the various judges on those decisions can be summarised in the following terms.  The majority in Christie and Mason P in Manning preferred the approach that there was a rule of practice, with limited exceptions, that successive interlocutory applications were to be rejected as an abuse of process.  On the other hand, the majority in Manning and Charles JA in Christie preferred the approach that the question whether a successive interlocutory application was an abuse of process was a matter for judicial discretion to be determined by reference to what was fair and just in all the circumstances of the case.
Some Full Court decisions on the issue
38		A number of decisions in this Court has also considered this issue, although most have dealt with the question in passing without any substantial consideration:  see, for example, Windsor v Sydney Medical Service Co-operative Ltd (No 2) [2009] FCA 704 and Vivo International Pty Ltd v Tivo Inc [2012] FCA 1167.  Symes v Holbrook [2005] FCAFC 219 is the only Full Court decision that has touched on the issue and it did so only briefly at [48].  Nonetheless, there are at least four decisions that do provide some illumination:  P Dawson; NA Retail Solutions Pty Ltd v St George Bank Ltd (2010) 267 ALR 599, [2010] FCA 290 (NA Retail Solutions); Australian Equity Investors, An Arizona Limited Partnership v Colliers International (NSW) Pty Ltd (No 3) [2011] FCA 100 (Australian Equity Investors); and Tropical Reef Shipyard Pty Ltd v QBE Insurance (Australia) Ltd (No 2) (2010) 274 ALR 626; [2010] FCA 1093 (Tropical Reef Shipyard).
39		In P Dawson, to which I have already referred above (see [11]), Goldberg J considered the decisions in Christie and Manning and a number of other decisions, including the High Court decision of Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc (1981) 148 CLR 170.  Having done so, his Honour concluded (at [48]) that:
To the extent that there is conflict or inconsistency between the decisions or rationes in Christie and Manning, it is not for me to resolve that conflict or inconsistency or decide which is the correct or preferable principle to adopt. 
40		Nonetheless, for the purposes of disposing of the application before him, Goldberg J decided that one or more of the following factors would need to be present to justify him re-considering the earlier interlocutory order he had made whether (at [49]):
(a)	there is new material or new evidence which was not available, or reasonably available, to them at the time the [previous] orders were made …;

(b)	there has been a material change in the circumstances since those orders were made;

(c)	there are exceptional circumstances which warrant re-consideration of the matter, the subject of [the present application];

(d)	as a matter of discretion, the justice of the matter requires that the applicants be allowed to revisit the matter, the subject of  [the present application].
41		It is apparent from (d) above and some observations made by his Honour earlier in his reasons (at [38]) that Goldberg J considered the question whether a previous interlocutory order should be revisited was ultimately a matter for the discretion of the Court, taking into account what “the interests of justice require in the particular circumstances of the case” (at [39]).
42		Similarly, in Tropical Reef Shipyard, Finkelstein J considered the authorities on this question (particularly what Heydon JA said in Manning at [46] – see [26] above) and concluded, as Goldberg J did in P Dawson, that a judge considering a successive interlocutory application must be guided by “the overarching principle that the court should do what justice requires in the circumstances of the case”:  at [12].  However, Finkelstein J also observed that this did not mean that “a judge could simply reconsider what he or she had found on an interlocutory application whenever he or she wished to”:  at [11].  Instead, his Honour said that the circumstances in which a judge could reconsider such an order were relatively limited and, while they were not closed, he pointed to those outlined by Goldberg J in P Dawson (see [40] above).
43		In NA Retail Solutions (at [51]–[53] and [56]–[58]) and Australian Equity Investors (at [31]–[33]) Cowdroy J also reviewed the authorities on this issue, including Christie and Manning, and decided to follow the approach adopted by Goldberg J in P Dawson.  Interestingly, in Australian Equity Investors, his Honour noted that, since the decision in Manning, the Civil Procedure Act 2005 (NSW) (the Civil Procedure Act) had been enacted and, among other things, it introduced case management concepts similar to those contained in Part VB of the Federal Court Act.  In this regard, his Honour then referred to a more recent decision of the New South Wales Court of Appeal in Fletcher v Besser [2010] NSWCA 30 (Fletcher), where Sackville AJA referred to the advent of the Civil Procedure Act and observed that (at [17]):
For present purposes, it is enough to observe, without casting doubt on the correctness of Manning at the time it was decided, that the Civil Procedure Act may need to be taken into account in determining whether a second application for an extension of the limitation period should be permitted where the application is based on evidence that was available at the time of the unsuccessful first application.
The relevant principles
44		Like Goldberg J in P Dawson (see [39] above), I do not propose to attempt to resolve the conflict between the views expressed by the various judges in Christie and Manning.  Instead, with the rider below, I propose to proceed as both Finkelstein and Cowdroy JJ (among others) did and apply the principles outlined by Goldberg J in P Dawson.  The rider stems from the observations made by Sackville AJA in Fletcher and the fact that, like Manning, P Dawson was decided before the introduction of the case management concepts propounded in Part VB of the Federal Court Act.  Taking the invention of those concepts into account, I consider any successive interlocutory applications in this Court must now be determined having regard to the overarching purpose of civil practice and procedure expressed in that Part, namely to facilitate the just resolution of disputes, according to law, and as quickly, inexpensively and efficiently as possible:  see s 37M of the Federal Court Act.
THE CONTENTIONS
45		I turn now to the contentions of the parties.  In his written submissions, Mr Wright acknowledged that the Court could dismiss his second application on the ground that it amounted to an abuse of process.  However, he submitted that the current circumstances did not warrant such a finding, for these reasons:
The initial application was, at least in part, dismissed on the basis that [he] did not provide any evidence as to the financial position of the Respondent Companies.  At the time the first application was made, [he] had not received any legal assistance and was unaware that such evidence needed to be provided to the Court.  Evidence regarding the financial position of the Respondent has now been put before the Court in [his] Affidavit [sworn 5 February 2015].
46		Mr Wright elaborated upon these reasons in his oral submissions.  In relation to the information about the corporate respondents’ financial position, he stated he “was remiss in not having [that] available last time”.  He continued:  “I was negligent if I didn’t, or remiss and didn’t provide correct – sufficient documents to back each aspect of it…But things have changed.”
47		Mr Wright’s contention was that, having now demonstrated the impecuniosity of the corporate respondents, he should be permitted to represent them, given that he was their sole director and shareholder and made all the decisions for them.  Mr Wright also relied on the fact he had been able to obtain pro bono legal assistance in preparing his current application.  He submitted that this assistance would enable him to represent himself in this proceeding and, if permitted, the corporate respondents.  As to whether this legal assistance was likely to be ongoing, Mr Wright stated in his written submissions that he was:
… hopeful that he can continue to source, in the background, pro bono legal assistance to the benefit of himself and the Respondent Companies, to assist him in representing the Respondent Companies. His enquiries are ongoing in this regard.
48		Since it was only made aware of Mr Wright’s current application late on the evening before the hearing, the Commission did not have the opportunity to prepare and submit written submissions on the application.  Nonetheless, it made a number of oral submissions.  Its primary contention was that the current application, and the material in support of it, was not distinguishable from that put forward on the first application and it should therefore be rejected.  As to information that had been put forward about the corporate respondents’ financial position, the Commission submitted that impecuniosity was, at its highest, a minor factor in the rejection of Mr Wright’s first application.  To emphasise this contention, it pointed out that it told the Court during the hearing of the first application that it was prepared to proceed on the assumption the corporate respondents were impecunious, without Mr Wright having to establish that fact.  For that reason, the Commission submitted that the provision of this financial information did not relevantly alter the circumstances of the two applications.  However, the Commission acknowledged that the pro bono legal assistance that Mr Wright had now obtained was a relevant change in circumstance from his first application.  Nonetheless, it submitted that there is no evidence that Mr Wright will continue to receive that pro bono assistance in the future conduct of this proceeding.
CONSIDERATION
49		As I have indicated above, I propose to consider Mr Wright’s current application with reference to the circumstances outlined in P Dawson, and taking into account both what justice requires in the circumstance of this case and the overarching purpose of civil litigation expressed in s 37M of the Federal Court Act.
No new material or new evidence not available at the first application
50		Turning, then, to the first circumstance in P Dawson:  there is new material or new evidence which was not available at the time of the first application.  For the following reasons, I do not consider the financial information Mr Wright has now provided in relation to the corporate respondents meets that description.  As the sole director and shareholder of the corporate respondents, the information about the corporate respondents’ financial position was plainly available to Mr Wright at the time of his first application.  The only explanations he has offered as to why he did not present this evidence at the time of his first application were those advanced in his oral submissions, where he said he was “remiss” and “unaware that such evidence needed to be provided”.  Even if I were to accept these statements in his oral submissions as his explanations, I do not consider they provide a satisfactory explanation for his failure.  If mere negligence were to be accepted as a sufficient explanation, it is self-evident that the opportunities to make successive interlocutory applications would be almost limitless.  And, while Mr Wright’s lack of knowledge of the Court’s procedures – he is not a lawyer, nor legally trained – is perhaps understandable, that state of affairs simply reinforces the overriding reason why I rejected his first application:  the delays and inefficiencies that would likely occur if he were to be allowed to appear for the corporate respondents.  In those circumstances, to accept his ignorance of the Court’s procedures as a satisfactory explanation would be quite perverse.  In any event, as the Commission correctly submitted, the financial impecuniosity of the corporate respondents was not contested by it during the first application and their impecuniosity was not relied upon as a significant factor in my decision to refuse Mr Wright’s first application.
No material change in circumstances
51		The second circumstance identified in P Dawson is:  there has been a material change in circumstances since the first application.  On this aspect, Mr Wright has relied upon the fact that he is now receiving pro bono legal assistance, which assistance was not available to him at the time of his first application.  There is also another matter that Mr Wright did not expressly refer to in his submissions. It is, that, in his first application, he only sought dispensation from r 4.01(2) of the Rules in relation to the first respondent, whereas in his current application he has sought that dispensation for both corporate respondents.  I mention this matter to dispose of it – I do not consider it constitutes a material change of circumstances.
52		As I have already observed above, my overriding reason for rejecting Mr Wright’s first application was a concern to avoid the delays and inefficiencies that were likely to occur if Mr Wright were permitted to represent the two corporate respondents in this proceeding.  If Mr Wright can now gain pro bono legal assistance and thereby overcome my concerns in this regard, that may well amount to a material change of circumstances that would justify my considering his current application.  However, that would only follow if I could be satisfied that the pro bono legal assistance Mr Wright is currently receiving will continue to be available to him for the remainder of the conduct of this proceeding.  On that question, Mr Wright was quite vague.  This is apparent from his written submissions, which I have quoted at [47] above, where he expressed the continuance of this pro bono legal assistance as a “hope” and he referred to it being available “in the background”, whatever that may mean.  In addition, during oral submissions he made statements to the effect that he had acquaintances “left, right and centre” who had offered to assist him.  Moreover, during the hearing, Mr Star, counsel for the Commission, proposed that, to demonstrate that this pro bono legal assistance would continue to be available to Mr Wright and the corporate respondents for the remainder of this proceeding, Mr Wright should be allowed a short adjournment to allow the lawyer concerned to file a notice that he or she acted for the corporate respondents.  In response, Mr Wright indicated he did not wish to avail himself of this opportunity.  Because of these matters and the absence of any evidence on the subject, I am not satisfied that the pro bono legal assistance that Mr Wright has recently acquired will continue to be available to him such that he will be able to represent the corporate respondents during the remainder of this proceeding.  I do not therefore consider Mr Wright has established the necessary material change in circumstances to justify the consideration of his current application under the second circumstance identified in P Dawson.
53		The third circumstance identified in P Dawson is:  any exceptional circumstances that warrant the reconsideration of the matter.  Mr Wright did not identify any other circumstance, let alone an exceptional one, that would necessitate this circumstance being considered in this application.
54		As I have stated a number of times above, my overriding reason for rejecting Mr Wright’s first application was that I did not consider dispensing with the requirements of r 4.01(2) of the Rules, so that Mr Wright could represent the corporate respondents, would result in my being able to dispose of this proceeding in accordance with the precepts set out in s 37M of the Federal Court Act.  In this respect, I maintain the finding I made in relation to his first application:  that I do not consider Mr Wright has a sufficient knowledge of the law, or the rules relating to evidence and procedure, to allow him to represent the corporate respondents in a way that will assist me to dispose of this proceeding any more justly, quickly, inexpensively or efficiently.  To the contrary, from my observations of Mr Wright’s conduct of this proceeding thus far on his own behalf, I consider his intervention on behalf of the corporate respondents would be likely to add additional expense, cause further delay and further disturb the efficient conduct of these proceedings.  While Mr Wright is entitled to continue to represent himself in these proceedings, I do not consider it is in the interests of justice, nor at all consistent with the overarching purpose of civil litigation in this Court, to reconsider the decision I made to reject his first application.
CONCLUSION – MR WRIGHT’S SECOND APPLICATION IS AN ABUSE OF PROCESS
55		Mr Wright has therefore not brought forward any circumstance that would warrant his current application being considered in the interests of justice.  In the absence of such a circumstance, I consider this second application on the same issue amounts to an abuse of process.  For these reasons, I propose to order that Mr Wright’s application filed 6 February 2015 be dismissed.

I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.	

Associate:		

Dated:	26 March 2015