Procedural history
6 The first case management hearing in the proceeding was held on 15 June 2017.
7 On 14 June 2017, ASQ filed a notice of address for service, signed by Darryn Van Hout who described himself as "Company Director of the Respondent". That afternoon, Mr Van Hout was given permission to appear at the first case management hearing by telephone from Queensland, after he had sought an adjournment for medical reasons. At the commencement of the case management hearing, Mr Van Hout asked for permission to appear on behalf of ASQ and I granted Mr Van Hout leave to represent the company that day. Orders were made for the filing and service of evidence and the matter was listed for further case management on 17 August 2017, and for a final hearing on 18 September 2017.
8 At the case management hearing, Mr Van Hout stated that ASQ was "vigorously defending" the proceeding, saying:
[I]t's in my opinion that - well, not my opinion; it's actual fact - that you know, I'm in no breach of any consumer law or intellectual property law or trademark law by hosting that listing on the website, and bringing that listing down would actually, you know, put me at a financial loss, and you know, it would breach the integrity of the business that I operate, being a consumer care organisation and give him an unfair advantage over the competitors that are - you know, that do work in the industry, but ultimately it would be damaging for my business if I was to pull that down, and that's why I'm defending it.
9 On 5 July 2017, Mr Parker's lawyers filed a notice of intention to cease to act.
10 On 6 July 2017, Mr Parker took steps to swear his affidavit (dated 3 July 2017 on the front page), file it, and to serve a copy on ASQ by registered post in accordance with instructions contained in an email to Mr Parker from Kells Lawyers dated 6 July 2017.
11 ASQ did not file evidence in accordance with the 15 June 2017 orders.
12 On 19 July 2017, as foreshadowed by their earlier notice, Mr Parker's lawyers filed a notice of ceasing to act.
13 On 16 August 2017, the Registry sent an email to Mr Van Hout which noted that the matter was listed for a case management hearing on 17 August 2017 at 9.30 am. The Registry did not receive a response to this email.
14 On 17 August 2017, ASQ did not appear at the case management hearing. In those circumstances, and where Mr Parker claimed that he was suffering ongoing loss as a result of ASQ's conduct, I vacated the 18 September 2017 hearing and listed the final hearing on 23 August 2017.
15 Later on the morning of 17 August 2017, the Registry sent Mr Van Hout a copy of the orders made that day. The form of the orders included the following notation:
THE COURT NOTES THAT:
1. The respondent did not appear at the case management hearing.
2. The respondent has not complied with the orders made in this proceeding on 15 June 2017.
3. The applicant claims that he is suffering ongoing loss as a result of the respondent's conduct.
16 There followed email communication between the Registry and Mr Van Hout concerning various matters including a request by Mr Van Hout for permission to represent ASQ at the final hearing, and a request to attend the final hearing by telephone. Among other things, Mr Van Hout stated that, as Mr Parker's legal representation had "withdrawn" from the matter, it was his understanding that the "matter is now closed".
17 Later in the day, the Registry informed Mr Van Hout by email that the request for permission to represent ASQ at the 23 August 2017 hearing could be made to the Court on that day, and that Mr Van Hout would need to provide a detailed written request to appear by telephone on that occasion "bearing in mind that the proceeding is currently listed for a final hearing on 23 August 2017 in light of the matters noted on today's order". The email also asked Mr Van Hout whether he had been served with a copy of Mr Parker's affidavit sworn on 3 July 2017 and filed in the proceeding on 10 July 2017. Mr Van Hout did not reply to this question.
18 On the morning of 23 August 2017, Mr Van Hout wrote an email to the Court "to seek permission to represent Switchee Pty Ltd in this unique instance, as well as attend the hearing today remotely, via telephone". In making that request, Mr Van Hout did not provide a detailed written request of the kind mentioned in the Registry's 17 August 2017 email.
19 The Registry responded at about 9.30 am, saying that r 4.01(2) of the Federal Court Rules 2011 provides that a corporation must not proceed in court other than by a lawyer and, in the absence of an explanation for why ASQ could not be represented by a lawyer, I would not dispense with the requirement to comply with r 4.01(2).
20 Just before 10.00 am, Mr Van Hout sent another email to the Court in which he sought an adjournment of the matter for four weeks or to a date and time in the future when ASQ's barrister could attend the hearing. The barrister was not named. Mr Van Hout stated that I had informed him (at the 15 June 2017 case management hearing) that ASQ would be required to engage a lawyer or barrister for the final hearing and stated that this had been done. Mr Van Hout referred to the fact that Mr Parker's solicitor has ceased to act, the hearing having been brought forward and the short notice as reasons why the matter should be adjourned. Mr Van Hout also stated that ASQ took the matter extremely seriously.
21 Shortly after 10.00 am, Mr Van Hout sent a third email which stated that he had received information that morning "via a phone conversation with the courts" that contradicted the "instruction" given by email dated 17 August 2017 that he would need to "notify/communicate with the parties, and Her Honour Justice Gleeson on the day of the hearing in relation to Switchee Pty Ltd's request". This seems to be a reference to the request for permission to represent ASQ, but could also refer to the request to appear by telephone.
22 At the commencement of the hearing, I noted that ASQ had not complied with the Court's 15 June 2017 orders. Having failed to appear on 17 August 2017, ASQ had been informed that the matter would be listed for hearing on 23 August 2017. ASQ had a week to arrange for legal representatives to appear at the hearing. Mr Van Hout had not explained why ASQ had not obtained legal representation to attend Court either to participate in the final hearing or to seek an extension of time to file evidence, nor had he explained why he had not appeared in person to seek permission to represent ASQ. For these reasons, I refused the adjournment application. Essentially, having regard to the history of the matter and contrary to Mr Van Hout's email statement, I did not accept that ASQ was taking the proceeding seriously and I did not consider that it was in the interests of justice, or a proper use of the Court's resources, to give ASQ a further opportunity to defend the proceeding.
23 Accordingly, the final hearing was conducted in ASQ's absence. At the hearing, Mr Parker appeared in person and relied on his affidavit referred to above, gave sworn evidence and made oral submissions.