Moussalli v Western Power

[2010] FCA 1120

Federal Court of Australia|2010-10-14|Before: Gilmour J, Foster J

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At a glance

Source facts

Court

Federal Court of Australia

Decision date

2010-10-14

Before

Gilmour J, Foster J

Source

Original judgment source is linked above.

Judgment (53 paragraphs)

[1]

REASONS FOR JUDGMENT 1 The respondent has applied to the Court for an order that this appeal be summarily dismissed. 2 The appeal is fixed for hearing before me on 12 November 2010 in Perth. That fixture has been known to the parties since 16 or 17 August 2010. 3 The appellant has not taken any of the steps required of him to ready his appeal for hearing. He has not attended two appointments fixed by the Registrar for the settling of the index to the Appeal Books. For this reason, amongst others, no Appeal Books have been prepared and, as far as I know, no steps whatsoever have been taken by the appellant to prepare Appeal Books. The appellant has not completed Status Reports as required by the directions made by the Court, although, on one occasion, he did lodge a document which purported to be such a report but which, in truth, fell far short of what was required. 4 The appellant did not attend either of the callovers of his appeal which took place before Gilmour J on 21 July 2010 and on 4 August 2010. 5 The appellant also failed to attend the listing before me on 21 September 2010. I listed the appeal before me on that day in order to ascertain the appellant's intentions and to determine what should be done with his appeal. 6 Finally, the appellant has not appeared today notwithstanding that he is aware that the respondent seeks to have his appeal summarily dismissed. I have had the matter called outside Court but there was no response to that call either by or on behalf of the appellant. 7 I am satisfied that the appellant has been served with the respondent's Notice of Motion filed on 5 October 2010 and with the affidavit of Penelope Diana Brooke sworn on 4 October 2010 (Ms Brooke's affidavit) filed in support of that Motion notwithstanding that the copy of that material which was sent by registered post has not been retrieved by the appellant. A further copy was sent on 7 October 2010 by ordinary prepaid post to the address for service provided to the Court by the appellant. This is an address to which mail has previously been sent which has, in fact, come to the attention of the appellant. In addition, the Court has formally notified the appellant of today's listing. 8 The appellant has not applied to adjourn the appeal nor has he explained by affidavit evidence his failures to do that which was required of him to ready his appeal for hearing. He has not put any evidence before the Court in answer to Ms Brooke's affidavit. 9 Notwithstanding the fact that the appellant has not filed any affidavit material explaining his conduct or seeking to answer the material filed on behalf of the respondent, the appellant has sent correspondence to the Court and had conversations with Registry staff in the period between 25 June 2010 and 9 September 2010. In the communications which the appellant has had with Registry staff, he has conveyed to them that he has been unable to attend to the proper preparation of his appeal because he is unwell at the present time and does not have sufficient funds to retain a lawyer to assist him. I shall refer to these communications in more detail later in these Reasons. I have read all of the correspondence forwarded to the Court by the appellant as well as the enclosures sent with that correspondence. For reasons which I will explain, taken at its highest, that material does not justify an adjournment of the hearing of the appeal although it does explain, to some extent, the conduct of the appellant. 10 In the circumstances which I have outlined, the respondent has been driven to make the application with which I am now dealing. 11 It seems to me that I have two choices: (1) To adjourn the hearing of the appeal even though neither party has requested that I do so; or (2) Alternatively, to accede to the respondent's summary dismissal application. 12 I propose to take the latter course and to dismiss the appellant's appeal. I shall now explain why.

[6]

The Judgment of the Federal Magistrate 15 The Federal Magistrate summarily dismissed the appellant's Application in the Federal Magistrates Court upon the basis that his Application had no reasonable prospect of success. When the Federal Magistrate came to deal with the respondent's summary dismissal application, the appellant was not represented and did not appear. At the commencement of the summary dismissal hearing, Counsel appeared for the appellant and sought to tender before the Federal Magistrate affidavit material indicating why the appellant would not be appearing at that hearing. Counsel then withdrew. 16 The appellant's claim before the Federal Magistrate was for reinstatement of his employment with the respondent. The respondent had terminated that employment because the appellant had failed to return to work as directed. In the Application filed by him in the Federal Magistrates Court, the appellant pleaded that his employment had been terminated on grounds which were prohibited under s 659(2) of the Workplace Relations Act 1996 (Cth). 17 The Federal Magistrate read and took into account four affidavits filed by the appellant in the Federal Magistrates Court proceeding and carefully considered the contents of those affidavits in the course of determining whether or not the grounds pleaded had been made out. At [51] of his Reasons, the Federal Magistrate said: 51. The Court has concluded that each aspect of the claims made in the amended application by Mr Moussalli cannot succeed on the evidence that he has filed. The amended application therefore has no reasonable prospects of success. Indeed, in the Court's view, it has no prospects of success at all on the evidence before the Court. As indicated above Mr Moussalli's evidence has come in by way of four affidavits which are before the Court, and in circumstances where Mr Moussalli had the opportunity to file further affidavit material, he failed to avail himself of that opportunity, and has ultimately failed to lead evidence which proves his claims. There will therefore be orders upholding Western Power's summary dismissal application, and dismissing Mr Moussalli's amended application. 18 For present purposes, it is not necessary to descend into a more detailed analysis of the judgment under appeal. As matters stand at the moment, the appellant has not identified with any specificity the errors said to have been committed by the Federal Magistrate nor has he sought to support the very general contentions made in his Notice of Appeal with any argument.

[21]

Reef Moussalli 21 Enclosed with that letter was an affidavit of Darren William Keating sworn on 1 June 2010 apparently prepared for use in the Federal Magistrates Court in relation to the summary dismissal application in that Court which was heard on 2 June 2010 and determined on 4 June 2010 by the judgment under appeal. Dr Keating is a medical practitioner who provided a Workers' Compensation Progress Medical Certificate to the appellant dated 18 May 2010 in which he certified that the appellant was unfit for work until 20 July 2010. In the Medical Certificate attached to Dr Keating's affidavit, Dr Keating said the following in respect of the appellant: Since February 2010, increasing stress/anxiety secondary to legal process demands/timelines. Inpatient at JHC (Joondalup Health Campus) due to severe headache secondary to anxiety/stress. Chronic stress/anxiety - unfit to work. 22 In his affidavit, Dr Keating said that there had been a significant deterioration in the appellant's condition since his last review on 9 December 2009. Dr Keating said that, in his opinion, the appellant was unsuitable to perform any work (including preparation of legal documents and appearing in Court if required) for the period from 18 May 2010 to 20 July 2010 due to his condition. 23 There was also enclosed with the appellant's letter to the Court dated 25 June 2010, a Job Capacity Assessment Report dated 17 June 2009 prepared by Bradley James Barker, a Conditionally Registered Psychologist. This Report had been commissioned by Centrelink. In this report, Mr Barker said that the appellant was permanently afflicted with hypertension, migraine and anxiety although all of these conditions were expected to improve over time. 24 On 25 June 2010, the West Australian District Registrar of the Court sent a letter to the appellant in which he notified the appellant that his appeal would be called over at 9.30 am on 21 July 2010 and that it was likely to be fixed for hearing in November 2010. In that letter, the following was said: If parties have legal representation then they should be represented at this callover, either by counsel or by a solicitor. Parties without legal representation should appear in person at the callover. The Judge presiding at the callover will be seeking information about:

[50]

Consideration 42 The appellant has not sought to have the respondent's Notice of Motion adjourned. Nor has the appellant sought to vacate the hearing of the appeal fixed for 12 November 2010. However, the appellant has persistently and consistently brought to the attention of the Court the difficulties which he is presently experiencing both in terms of his health and his financial position. The materials provided by the appellant directed to establishing his current state of health are untested and have not been presented to the Court in any formal way. Those materials, however, reveal that the appellant appears to be suffering from stress and anxiety brought about by the legal proceedings which he instituted against the respondent in the Federal Magistrates Court and by the appeal from the Federal Magistrate's decision which he has instituted in this Court. In one of the reports to which I have referred, the stress and anxiety brought about by these events are described as "permanent" but with some prospect of improvement over time. 43 It seems to me that there is no real prospect that the appellant's medical conditions will improve in the foreseeable future whilstever the appeal and underlying litigation remain on foot. Nor does there seem to be any real prospect of an improvement in his financial circumstances in the foreseeable future. The appellant is in a classic "Catch-22" situation. On the one hand, he says that he is unable to prosecute his appeal because of his poor health and his lack of funds. On the other hand, his medical conditions will not improve until his appeal is determined. At the very least, the reports from the appellant's doctors suggest that his prognosis is uncertain and that it is impossible to predict when, if at all, his conditions might improve. Further, the Court has been unable to secure pro bono legal representation for the appellant and it seems unlikely that he will be able to afford a lawyer for some considerable time (if ever). 44 In effect, the appellant is asking the Court to defer dealing with his appeal for an indefinite period with no reasonable prospect that his circumstances will improve should such deferment occur. 45 If the Court were to accede to the appellant's wishes, there is likely to be substantial prejudice caused to the respondent. The respondent will have to devote time and money to protecting its interests in relation to the appeal. In addition, it will be left with unresolved litigation hanging over its head which will not be dealt with for some considerable time - probably years. 46 Apart from filing his Notice of Appeal, the appellant has not taken any step whatsoever to progress his appeal since 25 June 2010. 47 Order 52 r 13(2) of the Federal Court Rules provides: 13 Title of proceeding

[52]

(1) Where an appellant has not done any act required to be done by or under these Rules, or otherwise has not prosecuted his appeal with due diligence, the Court may: (a) order that the appeal shall be dismissed for want of prosecution; (b) fix a time peremptorily for the doing of the act and at the same time order that upon non compliance the appeal shall stand dismissed for want of prosecution, or subsequently and in the event of non compliance, order that it be so dismissed; or (c) make any other order as may seem just. (2) The Court may not make an order under subrule (1) unless notice of the proposed order has been served on the appellant. (3) An order under paragraph (1) (b) may be varied at any time before the appeal stands dismissed for want of prosecution, and in special circumstances may be varied or revoked after that time. 51 There is authority in the United Kingdom (Birkett v James [1978] AC 297), followed in this Court in Van Reesema v Giameos (1979) 27 ALR 525; (1979) 41 FLR 86, to the effect that the power to dismiss an appeal for want of prosecution must not be exercised lightly. Each case must be decided on its merits and depends upon its own circumstances. General statements are of limited assistance. 52 In the present case, the appellant has taken no steps whatsoever to progress his appeal. He has not attended at Court to explain his delay, although he has written to the Court on at least two occasions suggesting that the reasons for his failure to attend to the steps required of him were his poor health and difficult financial position. 53 For the reasons which I have explained at [42]-[46] above, there is no real prospect of any change in the appellant's present circumstances in the foreseeable future. Sooner or later, the Court will have to take steps to bring the matter to a head. In the circumstances, I think that O 52 r 38 has been engaged. 54 Section 25(2B)(ba), (bb) and (bc) of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act) provide: 25 Exercise of appellate jurisdiction … (2B) A single Judge (sitting in Chambers or in open court) or a Full Court may: …

[53]

(ba) make an order that an appeal to the Court be dismissed for want of prosecution; or (bb) make an order that an appeal to the Court be dismissed for: (i) failure to comply with a direction of the Court; or (ii) failure of the appellant to attend a hearing relating to the appeal; or (bc) vary or set aside an order under paragraph (ab), (ba) or (bb); or … 55 Consistent with the requirements of s 37M and s 37N of the Federal Court Act, both the Court and the parties are required to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. 56 My conclusions therefore are: (a) The appellant's Notice of Appeal is defective and does not meet the requirements for a Notice of Appeal in this Court laid down by O 52 r 13(2). The defects are not a mere matter of form. There is no prospect that the Notice of Appeal will be redrafted and put into proper form in the immediate future. There is no prospect that the appellant will be able to secure legal representation in the foreseeable future; (b) The appellant has failed to prosecute his appeal with due diligence and has failed to take a number of specific steps required of him by the Court to ready his appeal for hearing; (c) The appellant has failed to facilitate the just resolution of his dispute with the respondent according to law and as quickly, inexpensively and efficiently as possible; (d) The appellant's failure to propound a Notice of Appeal in proper form and to prosecute his appeal has caused and will continue to cause substantial prejudice to the respondent that is unlikely to be able to be compensated by an order for costs; and (e) The medical and quasi-medical reports provided to the Court by the appellant do not support a solution to his inactivity which involves permitting the appeal to remain on foot. That material suggests that the appropriate course for the Court to adopt in order to break the present impasse is to dismiss the appeal. 57 In my view, O 52 r 38 of the Federal Court Rules and s 25(2B)(ba) and (bb) of the Federal Court Act are both engaged. I propose to dismiss the appellant's appeal because his Notice of Appeal is defective and because he has failed to prosecute his appeal with due diligence, he having taken no steps whatsoever to progress his appeal. I am not satisfied that there is any real prospect of an improvement in the appellant's situation in the foreseeable future and I think that the respondent is suffering and will continue to suffer real and substantial prejudice by reason of the appellant's inactivity. 58 The respondent has sought indemnity costs against the appellant. Whilst I think that the appellant should be ordered to pay the respondent's costs of the appeal, I think that those costs should be taxed on the party/party basis given the circumstances to which I have referred. There will be orders accordingly. I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster.

Moussalli v Western Power

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Judgment (53 paragraphs)

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