Jorgensen v Australian Securities and Investments Commission

REASONS FOR JUDGMENT (Revised from transcript) 1 This is an application by the respondent for an order that this appeal be dismissed for failure to comply with a direction of the Court. The respondent relies upon s 25(2B)(bb)(i) of the Federal Court of Australia Act 1976 (Cth) which provides that a single judge or a Full Court may "make an order that an appeal to the Court be dismissed for…failure to comply with a direction of the Court". It also relies upon O 10 r 7 of the Federal Court of Australia Rules (Cth). 2 The appellant, Mr Jorgensen, has appealed from a decision of Weinberg J by which his Honour varied a decision of the Administrative Appeals Tribunal refusing Mr Jorgensen access under the Freedom of Information Act 1982 (Cth) to various documents of the respondent that he wished to see. 3 Weinberg J allowed Mr Jorgensen's appeal in part, ordering that he be granted access to some documents that the Tribunal had determined were exempt. The decision of the Tribunal was, however, otherwise affirmed and Mr Jorgensen was ordered to pay eighty per cent of the respondents costs of and incidental to that appeal. 4 The appellant filed a notice of appeal from the decision of Weinberg J. He later filed an amended notice of appeal. The respondent then filed a notice of motion for an order that the appeal be dismissed. The matter came before me on 27 April 2004, at the callover of cases for listing at the next Full Courts sittings in Melbourne. It was apparent that the notice of appeal then relied upon by Mr Jorgensen was indeed unsatisfactory but since there appeared to be some prospect that it might be put in proper form with the assistance of a lawyer, the matter was adjourned for further hearing before the duty judge so that Mr Jorgensen could have a chance to put his grievance in a form that would conform with the Rules. 5 The direction of the Court which provides the basis for the respondent's present application was made by Crennan J on 28 May. Her Honour directed that the appellant file and serve a notice of appeal setting out the grounds of the appeal and the particulars of those grounds on or before 25 June 2004. Her Honour gave that direction having heard a submission on behalf of the respondent that the notice of appeal was not in proper form, a proposition contested by the appellant. Crennan J concluded that the notice of appeal was not in proper form and that it needed substantial amendment to comply with the Rules. Her Honour warned the appellant that the appeal might be dismissed on 27 July (to which date the matter was adjourned) if the appellant failed to comply with her order. A note to that effect was recorded in the Court's file. 6 Now, plainly, what her Honour had in mind as being necessary was a notice of appeal that was different in substance, and not merely in form, to the document that Mr Jorgensen had filed. Her Honour had in mind a document in conventional form that would set out the grounds of appeal, and particulars of those grounds. 7 It is submitted by Mr Rose, who appeared on behalf of the Australian Securities and Investments Commission, that no such document has been provided. A further amended notice of appeal has been filed but, Mr Rose submits, it is essentially the same as the document that Crennan J held to be insufficient except that the paragraphs have been re-ordered to some extent and some new paragraphs have been added. Mr Jorgensen, who was given leave to address the Court by telephone from China, argues that the changes have made the document clearer and are sufficient for compliance with her Honour's order. 8 It is clear that the further amended notice of appeal does not comply with the order made by Crennan J. It is, in substance, much the same as the document that Crennan J held to be insufficient and it suffers from the same deficiencies. It is (omitting the formal parts) some 23 pages in length and it contains generalised criticisms, and observations about the operation of the Freedom of Information Act but it is not in terms such as would enable the respondent to discern specific grounds relied upon by the appellant by way of challenge to the comprehensive reasons for decision of the primary judge. 9 As I have indicated, when this matter came on before me in the callover in April, it was apparent that the amended notice of appeal was unsatisfactory and the matter was adjourned so that Mr Jorgensen could have a chance to put his complaints in proper form. I note that Crennan J also indicated to Mr Jorgensen that he needed legal assistance and warned him that his appeal might be dismissed if he did not comply with her order. 10 Whilst the Court endeavours to make allowances for parties who do not have the benefit of legal assistance, there are limits beyond which, in the interest of fairness to both parties, it simply cannot go. Moreover, the proper conduct of proceedings before the Court requires that when an order is made that something be done, that the thing ordered actually be done, and done in substance, not merely in point of form. 11 I am satisfied that the order made by Crennan J has not been complied with and in the circumstances that I have outlined, including the referral of the matter by me to the duty judge to give Mr Jorgensen an opportunity to obtain legal advice and to put his notice of appeal in proper form, and the further observations and the warning given by Crennan J, I see no reason not to make the order sought by the Australian Securities and Investments Commission, and I will order accordingly. 12 The order of the Court, therefore, is that the appeal be dismissed for failure to comply with the direction given by Crennan J on 28 May 2004, that a notice of appeal setting out the grounds and the particulars thereof be provided on or before the date that her Honour specified. Mr Rose seeks an order for costs. This is a case where costs should follow the event in the ordinary way, and I make such an order. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Black.