Joy v UGL Operations and Maintenance Pty Limited

1. The originating application be dismissed.
2. The applicant pay the respondent's costs of the originating application to be taxed, excluding any costs reserved on any interlocutory application or any interlocutory hearing in these proceedings (in respect of which there be no order as to costs). Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

FEUTRILL J: 1 This matter was listed for a trial commencing on 16 April 2024 for three days. At the commencement of trial, the matter was called on for hearing and Mr Nicholas Ellery appeared for the respondent and there was no appearance by the applicant. The respondent applied for the originating application to be dismissed pursuant to r 30.21(1)(a)(i) of the Federal Court Rules 2011 (Cth). The trial was listed for hearing and the parties notified by email from my chambers on 23 November 2023. 2 Prior to that date, the applicant had filed an affidavit dated 17 November 2023 that I took to be an application under s 47A and s 47B of the Federal Court of Australia Act 1976 (Cth). 3 That application was heard on 13 March 2024 and dismissed by orders made on 25 March 2024 for the reasons published the same day. The applicant also made an application for me to recuse myself. That application was dismissed on 13 March 2024 for reasons also published on 25 March 2024. 4 In support of the application to dismiss the originating application, the respondent has read an affidavit of Mr Ronan Boothman affirmed 16 April 2024, which attaches by and large various correspondence that has passed between the respondent's solicitors and legal representatives, the applicant and my chambers. On 28 March 2024, the respondent's solicitors sent the applicant an email attaching a letter of the same date. That letter included the following statements: … 4.1 As the matter is listed for a final hearing from 16 April 2024, and you have not been given permission to attend remotely, we assume you will attend in person on 16 April 2024 and the trial will proceed on that basis. 4.2 Alternatively, if you do not intend to travel to attend the hearing in person, it is open to you to simply withdraw or discontinue the application WAD31 of 2021 entirely. We invite you to do so if you do not intend to travel to attend the final hearing. 4.3 However, if you do not attend in person, and do not inform us in advance that you have entirely withdrawn the application, our client will be required to incur additional and unnecessary costs as a result of your actions and your failure to communicate your intentions to us. 4.4 We put you on notice that if you do not appear in person at the final hearing, and do not withdraw the entire application before then, we will: (a) apply to have the proceeding dismissed pursuant to rule 32.1(1) of the Federal Court Rules 2011 (Cth); (b) or, if the Court does not grant an order dismissing the proceedings entirely, we will seek to have the hearing proceed and fully determined in your absence; and (c) tender this letter to the Court as evidence on the question of any costs payable by you to our client. … 5 The applicant responded with an email dated 28 March 2024 to the effect that he had instituted an appeal from the orders of 25 March 2024 and 13 March 2024. By an email of 28 March 2024 from the respondent's solicitors to the applicant, the respondent indicated that it had not received sealed copies of the appeal documents. The applicant responded in an email of the same date, indicating that he was waiting for the papers to be sealed by the Registry and that he had submitted an interlocutory application to adjourn the final hearing until the appeal has been determined. The Court records indicate that on 27 March 2024, the applicant sought to file various documents. 6 These documents were not accepted for filing under r 2.26 and r 2.27 of the Rules and the applicant was informed of that by letter from the Registrar to the applicant dated 28 March 2024 indicating, amongst other things, that the Registrar was satisfied, having considered the contents of all the documents, that they are, on their face, frivolous or vexatious and it would constitute an abuse of the process of the court if they were accepted for filing. The Registrar was also satisfied that certain of the documents should be refused for filing pursuant to r 2.27 on the grounds that an affidavit dated 25 March 2024 was not properly executed and the jurat had not appropriately identified whether it had been sworn or affirmed. 7 On 9 April 2024, in response to an email from my chambers confirming receipt of the respondent's proposed timetable for the trial, the applicant sent an email indicating that he filed an appeal from my orders of 13 March and 25 March 2024. On the same day, a further email was sent to my chambers attaching the following documents: an interlocutory application for an adjournment of the trial; an affidavit of the applicant evidently dated 4 April 2024; an application for leave to appeal; a draft notice of appeal; a document entitled Applicant's Application Without Oral Argument; the orders of 25 March 2024; the reasons for decision of 25 March 2024; the order of 13 March 2024; an affidavit of the applicant dated 6 April 2024; and an application for an extension of time and leave to appeal. 8 Some of those documents appear to be the same as or similar to those rejected by the Registry on 27 March 2024. None of the documents attached to the email is sealed by the Court indicating that it has been accepted for filing. The court file in the proceedings do not include any of them. There is no evidence before the Court that the respondent has been served with an application for leave to appeal from any of the orders made on 13 March or 25 March 2024. There is no application before the Court to stay the orders of 25 March 2024 or 13 March 2024 or to adjourn the trial pending the determination of an application for leave to appeal. 9 Even if I were to take the informal document as such an application, it would be rare for the Court to stay or adjourn the hearing of a trial pending the determination of an appeal from an interlocutory order. Amongst other things, the authorities indicate that fragmentation of trials for interlocutory appeals is undesirable, for obvious reasons, and, in any case, any order made on 13 March 2024 or 25 March 2024, if it were to affect the outcome of the trial, the applicant would be able to include that as a ground of appeal from any final judgment. 10 Attempts have been made to contact the applicant this morning for the purpose of granting him leave to appear remotely to make an interlocutory application to adjourn the trial for any reason he may wish to articulate. Those attempts were unsuccessful. The applicant has not otherwise requested in writing that he be heard, even remotely, on an application to adjourn the trial for any reason that he has articulated. 11 The applicant was given fair notice of the application the respondent intended to make under r 30.21(1)(a)(i) if he failed to appear at the commencement of the trial. The applicant's written correspondence with the respondent and my chambers suggests that he does not intend to appear on the ground that he has applied for leave to appeal, although, for the reasons I have already indicated, no application for leave to appeal has been accepted for filing by the Court. 12 There is no basis, even if grounds for an adjournment could otherwise be shown, for adjourning the trial on the ground an application for leave to appeal has been made. Otherwise, there is no evident explanation for the applicant's failure to appear other than an unwillingness to participate in the trial and prosecute his claim against the respondent. The civil practice and procedure provisions, of which r 30.21 is one, must be interpreted and applied and any power conferred or duty imposed by them must be exercised or carried out in a way that best promotes the overarching purpose of those provisions: s 37M(3) of the Federal Court Act. 13 The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes (a) according to law, and (b) as quickly, inexpensively and efficiently as possible: s 37M(1) The overarching purpose includes the following objectives: (a) the just determination of all disputes before the Court; (b) the efficient use of judicial and administrative resources available for the purposes of the Court; (c) the efficient disposal of the Court's overall case load; (d) the disposal of all proceedings in a timely manner; and (e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute: s 37M(2). 14 In similar circumstances to the facts of this case, Heerey J dismissed an application where the applicant in that case failed to appear: Pham v University of Queensland [2001] FCA 1044. That order was upheld on appeal in Pham v University of Queensland [2002] FCAFC 40; [2002] FCA 203 at [25]-[26]. Amongst other things, the Full Court said that it is not necessary to consider the merits on an application such as this. 15 I am satisfied that the applicant has had a fair opportunity to present his case and to apply for an adjournment of the trial if he considered that it was necessary and there were appropriate grounds for so doing. I am also satisfied that the unexplained failure of the applicant to appear in circumstances in which he was made well aware that the trial would be proceeding and that the respondent intended to make this application provides a sufficient foundation for the exercise of the Court's discretion to dismiss the originating application under r 30.21(1)(a)(i), and I will make orders accordingly. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Feutrill.