Cooper v Selection Steel Trading Pty Ltd

1. The appeal be dismissed.
2. The appellant pay the respondent's costs of the appeal in a lump sum to be assessed by a Registrar of the Court, if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

RANGIAH J: 1 On 24 August 2023, the appellant filed a notice of appeal against the judgment in Cooper v Selection Steel Trading Pty Ltd [2023] FCA 979 dismissing his application for annulment of a sequestration order. 2 The appeal has been set down for hearing before a Full Court in Adelaide on 16 November 2023. The appellant is self-represented in the appeal. 3 The application presently before the Court is for dismissal of the appeal under r 36.74 of the Federal Court Rules 2011 (Cth) by reason of the appellant's failure to comply with directions, failure to attend hearings related to the appeal and failure to prosecute the appeal. 4 It is necessary to summarise the procedural history of the appeal. 5 On 5 October 2023, a Registrar ordered, inter alia, that the appellant file an outline of submissions by 18 October 2023. The applicant failed to comply with that order. 6 At the respondent's request, the matter was listed for a case management hearing before me at 9.30 am (AEST),10 am (ACDT) on 1 November 2023 via MS Teams by reason of the appellant's failure to file his submissions. About half an hour before the hearing, the appellant emailed the Registry saying: I have been unwell with for the last few weeks as a result of a reoccurring health issue from having three quarters of my intestine removed, which in turn I continue to have adhesions. Attached is a medical certificate. I respectfully request an adjournment for appeal SAD113/2023 until the surgeon can once again remove and repair the problem. 7 The medical certificate is set out below. 8 It may be noted that the medical certificate did not explain the nature or severity of the medical issue, nor whether it prevented the appellant from attending and participating in the hearing of the appeal. 9 At my instruction, my associate sent an email to the appellant saying: The case management hearing will proceed at 10.00 am ACDT (9.30 am AEST) today over Teams. You are expected to attend. If you do not attend, orders may be made in your absence. 10 The appellant did not appear at the case management hearing. In his absence, I made the following orders: 1. The matter be listed for case management hearing and hearing of the appellant's application for an adjournment of the appeal at 9.30 am (AEST) on 6 November 2023 via Microsoft Teams. 2. As early as possible prior to the hearing on 6 November 2023, the appellant is to file any medical evidence he relies upon in support of his application for an adjournment (noting that such evidence should indicate whether the appellant is able to attend to the preparation and filing of written submissions and the presentation of his case at the hearing of the appeal on 16 November 2023). 3. In the event that the appellant fails to attend the hearing on 6 November 2023, orders may be made in his absence. 11 On 6 November 2023, shortly before the commencement of the hearing, the appellant sent an email to the Registry saying: I have this morning received an email in regards to a hearing for SAD113 for today at 10 am. I spoke with a lady at the Federal Court office and she advised to notify chambers that I have a specialist appointment at the same time as the hearing. I respectfully request an adjournment as I very unwell. 12 The appellant did not appear at the hearing. In his absence, I made the following orders: 1. The appellant's application for an adjournment of the hearing of the appeal be adjourned to 9 November 2023 at 10.15 am (AEST). 2. In the event that the appellant fails to appear at that hearing without having provided reasonable excuse, the appeal may be dismissed without further notice to the appellant. 3. The hearing take place via Microsoft Teams. 4. By 4.30 pm on 7 November 2023, the respondent is to file an affidavit deposing as to service of these orders on the appellant. 13 I am satisfied that the appellant has been served with my orders. He has not filed any further material in support of his application for an adjournment or in support of his appeal and has not contacted the Registry to explain why he has not filed any material. The appellant has not appeared at the hearing today. He has not provided notice of any intention not to appear and has not provided any explanation for why he is unable to appear. The appellant has not provided the Court with any medical evidence indicating that he is unable to appear via MS Teams. He has not provided an explanation for why he failed to comply with the order to file written submissions. 14 In view of the appellant's failure to prosecute his appeal, and his failure to adequately explain his inaction, the respondent should not be put to further costs. The appeal will be dismissed. 15 I will order that the appellant pay the respondent's costs of the appeal in a lump sum to be assessed by a Registrar of the Court, if not agreed. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rangiah.