Joy v UGL Operations and Maintenance Pty Limited

Applicable principles 19 Rule 5.23(1)(b)(i) of the Rules provides that if an applicant is in default, a respondent may apply to the Court for an order that the proceeding be immediately dismissed for the whole or any part of relief claimed by the applicant. Rule 5.22 provides that a party is in default if the party fails to: (a) do an act required to be done, or to do an act in the time required, by the Rules; or (b) comply with an order of the Court; or (c) attend a hearing in the proceeding; or (d) prosecute or defend the proceeding with due diligence. 20 Section 37P of the FCA Act also provides, in effect, that the Court may dismiss a proceeding in whole or in part if a party fails to comply with a direction given by the Court about the practice and procedure to be followed in relation to a proceeding or any part of the proceeding. 21 Section 37M of the FCA Act provides that the Rules and provisions made by or under the FCA Act or any other Act with respect to the practice and procedure of the Court must be interpreted and applied, and any power conferred or duty imposed by them must be exercised or carried out, in the way that best promotes the facilitation of the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. Nonetheless, the power conferred by r 5.23 of the Rules is a discretion and it is unconfined except that a party must be in default: Professional Administration Service Centres Pty Limited v Commissioner of Taxation [2012] FCAFC 180; (2012) 295 ALR 52 at [35]. That is, a finding that a party is in default is a precondition to the exercise of the power under r 5.23. 22 Further, the power must be exercised and the Rules administered sensibly and with an appreciation that some defaults are unavoidable and unpredictable, even by the most conscientious parties and their lawyers, and having regard to the serious consequences of summarily dismissing proceedings: Geneva Laboratories Ltd v Prestige Premium Deals Pty Ltd (No 4) [2016] FCA 867; (2016) 120 IPR 133 at [54]-[55]; Professional Administration Service Centres at [37]-[38]; Lenijamar Pty Ltd v AGC (Advances) Limited (1990) 27 FCR 388 at 395-396 23 In general, there are two circumstances in which exercise of the power will be warranted: (a) where there is a history of non-compliance indicating an inability or an unwillingness to cooperate with the Court and the other party in having the matter ready for trial within an acceptable period; and (b) where there is a significant continuing default giving rise to undue prejudice and expense to the other party. Although the history of the matter will always be relevant, it is more likely to be decisive in the first of those two situations. Even though the most recent non-compliance may be minor, the cumulative effect of an applicant's defaults may be such as to satisfy the Court that the applicant is either subjectively unwilling to cooperate or, for some reason, is unable to do so. Such a conclusion would not readily be reached; but, where it is, fairness to the respondent would normally require the summary dismissal of the proceedings. In the second circumstance, the continuation of non-compliance is the essence of the situation. If, when the Court looks at the matter, the direction has already been complied with, the defaulting applicant may be ordered to pay any wasted costs; but it would be difficult to justify the dismissal of proceedings solely because of that default: Professional Administration Service Centres at [39]-[41]; and Lenijamar at 396-397.

Disposition 24 The respondent submitted that the applicant was 'in default' for failing to comply with the orders of 21 October 2021 in that a further amended statement of claim was not filed within 30 days of those orders. It will be apparent from the description of the orders made on 21 October 2021 and the effect of those orders set out earlier in these reasons, that the applicant was not in default of the 21 October 2021 orders by not filing a further amended statement of claim. 25 The result of the applicant not availing himself of the liberty granted to him is that he is presently only permitted to advance the causes of action disclosed in the parts of the amended statement of claim that have not been struck out. The respondent is able to file a defence in which it pleads to those parts of the statement of claim that remain intact. Thus, the next interlocutory step in the proceedings is for the respondent to file and serve a defence. Such delay, as there was between 21 November 2021 and 28 January 2022, cannot reasonably be attributed to non-compliance or inaction on the part of the applicant. 26 Nonetheless, the respondent also supported its application on the ground that, in effect, in his communications with the Court and the respondent's solicitors referred to earlier in these reasons, the applicant evinced an intention not to prosecute the proceedings. Further, there had been significant periods of delay in the applicant's prosecution of the proceedings. The respondent submitted that the applicant's express intention and past delays comprised a failure to prosecute the proceedings with due diligence and a default within the meaning of r 5.22(d) of the Rules. 27 The procedural history set out earlier in these reasons does not reveal any real delay on the part of the applicant in the prosecution of the proceedings. At least, no delay that is outside the boundaries of normal delay. The applicant largely complied with orders of the Court up to 28 January 2022. The respondent has not identified any specific non-compliance in that period or continuing default on the part of the applicant. 28 After the application was made on 28 January 2022, the applicant failed to appear at a case management hearing on 8 April 2022. He has not provided an explanation on affidavit for the failure to attend that hearing. However, he provided an informal explanation to the effect that he had contracted COVID-19 and had been unwell, had not monitored his emails and had suffered from continuing side-effects. On that basis, and with the respondent's agreement, on 8 June 2022, the Court varied the orders made on 8 April 2022. Thereafter, the applicant met the timing requirements and complied with the orders and appeared, by audio link, on 21 July 2022. 29 Other than a relatively minor failure to attend a case management hearing on 8 April 2022, as of the hearing on 21 July 2022, the applicant was not 'in default' and he was not continuing to be 'in default' as of the time of the hearing. Further, during the course of that hearing and in response to questions from the Court, the applicant ultimately made a submission to the effect 'I want to go ahead with this case. And it's up to you, sir, whether he - whether to give me justice, or you want to terminate this matter in favour of UGL.' 30 There was a degree of ambiguity in the applicant's submissions regarding his intention to prosecute his claims. The effect of those submissions was that he submitted that the remaining claims that he is permitted to prosecute are 'a dead end for [him]', that '[he] won't win this case with whatever [he] has left' and that he 'lost the case'. However, the applicant also made a submission to the effect that he wanted 'some time so that [he] can put other things'. 31 Overall, I am not satisfied that the statements of the applicant during the hearing on 21 July 2022 and in his emails to the Court of 21 November 2021 and 28 January 2022 together with his conduct before and after 21 October 2021 demonstrate an intention to abandon the proceedings or an inability or an unwillingness to cooperate with the Court and the respondent in having the matter ready for trial within an acceptable period. 32 It can be inferred from the correspondence referred to earlier in these reasons and the applicant's submissions on 21 July 2022 that he intended to discontinue the proceedings and pursue his claims in another forum or, at least, that he may be contemplating discontinuing the proceedings. However, the applicant has not taken steps to discontinue or withdraw his claims in the proceedings. Otherwise, his conduct is not consistent with a failure to prosecute the proceedings. 33 On the facts of this case, the power to summarily dismiss the proceedings under r 5.23 has not been enlivened because the applicant is not in default. In any event, even if I were satisfied that the power had been enlivened, I would not exercise the discretion to dismiss the proceedings for the following reasons. 34 Considering the applicant's conduct as a whole, including the steps taken, his statements in correspondence to the Court and his failure to appear on 8 April 2022, I am not satisfied that there is an indication of an inability or an unwillingness on the part of the applicant to cooperate with the Court and the respondent in having the matter ready for trial within an acceptable period. The applicant has made a submission to the effect that he wishes to proceed with the proceedings. It is not evident that there has been any real delay in the prosecution of the proceedings for which the applicant could reasonably be considered responsible. For example, periods of delay have resulted from the respondent's interlocutory applications. Further, it is not evident that any delay (for whatever reason) has caused any real prejudice to the respondent. 35 For the above reasons the respondent's interlocutory application is dismissed.

Decision not to re-list the hearing of the interlocutory application 36 After the hearing on 21 July 2022, the applicant requested that the hearing be re-listed because he had not been able to hear all the proceedings through his audio link. During the course of the proceedings, the applicant had indicated, at one point, that there was a break in the audio he was receiving. The hearing continued and the applicant was requested to raise with the Court if he had any further difficulty hearing the proceedings. Otherwise, the applicant did not indicate that he was unable to participate properly or adequately during the hearing. 37 While I accept that the applicant may have had some difficulties hearing and following the respondent's submissions through the audio link, I do not consider these difficulties deprived the applicant of a fair or reasonable opportunity to participate in and make submissions at the hearing. The respondent's oral submissions were largely in accordance with its written submissions. The applicant had an opportunity to respond to those submissions in writing. He also responded to them orally. For these reasons, I declined the applicant's request to re-list the matter for further hearing. In any event, given that the application is dismissed, the applicant has not been prejudiced by any inability to make further submissions on the application. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Feutrill.