Pham v University of Queensland

"Dr Arumugam will be asked to be present at the later court date as a matter of the court proceedings."

15 It is apparent from the content of the appellant's facsimile of 27 July that he was responding to the matters raised by the District Registrar in his facsimile of the previous day and therefore that the appellant undoubtedly received the District Registrar's facsimile to him of 26 July, directed as it was to the telephone number at the Richmond address from which it appears the appellant's own earlier facsimile of 26 July had been sent. 16 A copy of a report from Dr Arumugam was received by the Court on 27 July, obviously at the instigation of the appellant. Dr Arumugam, in this facsimile, stated:

"Mr Pham is suffering a marked exacerbation of anxiety symptoms due to the performance pressures associated with his impending court case.

Given his perfectionistic tendencies, high expectations and the perception that the court case is a do or die situation, I believe that in the absence of legal representation he would not be able to adequately represent himself and cope with the stressors. Therefore I recommend that he seeks an adjournment of his court case for at least 2 weeks."

17 The text of that facsimile is set out in full in the learned primary judge's decision. He plainly had regard to it in arriving at the decision under appeal. 18 On the morning of 30 July another facsimile emanating from the telephone number at the Richmond address already referred to was received by the District Registrar from the appellant. He expressed certain concerns about the hearing and, in the body of that facsimile, appears, in effect, to have sought that the trial be put off. 19 As the learned primary judge also noted, the solicitor for the first respondent sent by express post a letter dated 26 July to the appellant enclosing a copy of the District Registrar's letter of 26 July reiterating that the trial was set to proceed on 30 July and that the respondent would insist that it go ahead; the solicitor told the appellant that if there was to be an adjournment, there would have to be an application made by the appellant and the respondent required the doctor who might be relied on by the appellant to attend for cross‑examination. 20 It was on this set of factual circumstances that his Honour determined to dismiss the action on the non-appearance of the appellant, saying:

"I am satisfied that this proceeding should be dismissed. The applicant has been given every opportunity to present his case on the merits or explain properly why the case should be adjourned. The application will be dismissed pursuant to O 32 r 2(1)(c) of the Federal Court Rules."

21 His Honour also ordered that the applicant pay the respondent's costs of the proceedings. 22 This Court's role in these appeal proceedings is limited to the correction of errors of fact or law. The power under O 32 r 2(1)(c) is discretionary. We have therefore to determine if the discretion miscarried, ie, whether any of the well‑established grounds for overturning the exercise of a trial judge's discretion set out in House v The King (1936) 55 CLR 499 at 504 and 505 have been made out. 23 I cannot see any error in the learned primary judge's exercise of the discretion against the appellant to dismiss the action. In the course of oral argument counsel for the appellant identified two errors said to vitiate the judgment. The first was that the discretion should be taken to have miscarried because the appellant was a litigant in person and moreover a litigant with a chronic medical disability. It was said that the trial judge should have given him a further chance to bring his case before the Court by granting an adjournment. 24 There is, in my opinion, no sufficient basis for thinking that any such error of law sufficient to vitiate the judgment is made out for these reasons: the appellant, as I have pointed out, complied with the various directions that were given to him in the course of the Court taking the usual action to have the matter prepared for trial. He realised the need for medical evidence to support claims for an adjournment, but failed to put the relevant evidence before the Court. His counsel frankly conceded that the appellant could not afford the fee demanded by the specialist psychiatrist to attend Court. Moreover, such medical evidence as was before the Court in the form of the report from Dr Arumugam does not provide any reason in itself for thinking that an adjournment would have served any purpose. All the psychiatrist suggested was that the trial should be adjourned for a further two weeks or so, without indicating that there was any basis for thinking that that or a similar short adjournment would leave the appellant in any different position from that which he was in when the doctor gave his report on 25 July. 25 As I understand the second error, it can be put in this way: there was an incorrect exercise of the discretion to terminate the action because there was no evaluation by the trial judge of the merits of the case, something that the trial judge could have done by referring to the evidence filed by the parties, including the appellant, in accordance with the directions given. That suggestion was developed into an associated suggestion that this Court should allow the appellant at this stage to develop the point because, as I understand it, he has a strong case on the merits of his claims to having been discriminated against. 26 But O 32 r 2(1)(c) does not require the trial judge, confronted with the non-appearance of an applicant, to embark upon any investigation of the merits of the absent applicant's claim. The procedure for dismissing an action under that particular rule is available only when the trial is called on, ie, only at the point in time when all the preliminary steps, including finalisation of pleadings and marshalling of evidence, have been completed. 27 The procedure available under O 32 r 2(1)(c) should be contrasted with that under O 10 r 7(1)(a) which empowers the Court, if a party fails to comply with an order of the Court directing that a party take a step in a proceeding, to dismiss the proceeding if the default in complying with that order is by an applicant. That procedure can be invoked at any stage of an action, even before pleadings have been closed, and it has been held that where a respondent seeks to dismiss an action under that particular rule the respondent has the obligation of going into the merits of the case, but that is not required under the rule on which the learned primary judge relied. 28 In the material filed by the appellant by way of what is described as a supplementary notice of appeal, and in an affidavit supporting that, the allegation is raised that the trial judge's judgment was flawed with bias. This was developed at some little length in oral submissions by counsel for the appellant. The nub of the complaint, that the trial judge was biased and hence his judgment should be set aside on that ground, was based upon the directions the trial judge gave, some of which gave extensions of time to the respondents to file material and upon the judgment itself dismissing the proceedings brought by a person with a medical disability. 29 In oral argument, counsel for the appellant sought leave to inspect the transcripts of the directions hearings. It emerged that that request was sought not because there was any ground which counsel could state for thinking that the transcripts would contain evidence supporting a case of bias, but simply because it was thought that examination of the transcripts might turn up some such evidence. That amounts to nothing more than a request to fish for a case. The request was therefore declined. But, so far as the appellant challenges the judgment on the ground of bias because of the directions given and because of the dismissal order itself, it is appropriate to note that no complaint for bias has been made until the matter was raised in the material filed in support of the supplementary notice of appeal. 30 There is in my opinion no substance in the challenge based on bias. 31 There is nothing in the material before the Court to indicate that this action took anything other than a common course or that the directions given were other than those commonly given in the ordinary course of proceedings in this Court to bring an action to a state of readiness for trial. 32 The material filed in support of the supplementary notice of appeal also asserts that the decision to dismiss the action constituted unlawful discrimination on this same factual basis as the bias claim now made. For the same reasons that the bias challenge must fail, based as it is on the directions and the judgment, there can, in my opinion, be no foundation for saying that there is discrimination within either ss 9 or 10 the Racial Discrimination Act 1975 (Cth) or ss 5 and 6 the Disability Discrimination Act 1992 (Cth). 33 There is another matter raised in the material relied on by the appellant in support of his supplementary notice of appeal and touched on in argument, namely that the judgment should be set aside because it is said the trial judge failed to comply with s 46PR the Human Rights and Equal Opportunity Commission Act 1986 (Cth). This reads, so far as is relevant:

"[T]he Federal Court [is] not bound by technicalities or legal forms."

34 In my opinion, that provision has no application to the present proceedings and can provide no basis for questioning the judgment. The learned primary judge did not dismiss the action on any technical basis. Rather did he dismiss it by exercising a power conferred on him by the rules of court after investigating whether it was appropriate, because of the appellant's non-attendance in circumstances where he had notice of the trial, to bring the proceedings to an end. As I have observed, the appellant long knew the trial would proceed on 30 July. His attempt to have it adjourned on 20 July failed. 35 On the evidence before the Court, he thereafter sought in writing requests to have the trial adjourned, but failed to take the action he was told was necessary in the way of bringing medical evidence before the Court in support of any renewed adjournment application. He was reminded in the subsequent correspondence of the trial proceeding on 30 July. 36 An application was made in the course of the hearing of this appeal by the appellant for this Court to receive his affidavit challenging whether he had in fact received the correspondence from the court and the solicitor for the first respondent after 20 July referred to in Heerey J's reasons and which I have summarised. 37 The affidavit also challenges the view formed by the trial judge on the basis of the correspondence from the appellant received by the court, that it was in fact sent from the Richmond address. That is as far as that affidavit goes. The Court declined to receive that material because the appellant, quite apart from any correspondence that passed between him and the court and the respondents after 20 July, well knew the trial was fixed to commence on 30 July. Even if the court were to be persuaded as to the matters sought to be raised by tender of the affidavit, that could not affect the absence of any error in the exercise by the learned trial judge of his discretion to dismiss the action. 38 For these reasons I would dismiss the present appeal. 39 MARSHALL J: I agree with the reasons for judgment of the learned presiding judge. 40 FINKELSTEIN J: I agree with the reasons for judgment of Drummond J and with the orders that he proposes. I would only add one additional point. In substance, the appellant says that he was unable to attend at trial because of his medical condition. He makes that contention in support of his general assertion that he has suffered serious injustice by reason of the dismissal of the proceeding. In order to make that point good, it would have been necessary for the appellant to tender some medical evidence establishing that he was truly unable to attend at trial because of his medical condition. There being no such evidence, it is not possible to say that there has been any injustice occasioned to the appellant. 41 DRUMMOND J: The order of the Court therefore will be the appeal is dismissed. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond, the Honourable Justice Marshall and the Honourable Justice Finkelstein.

Solicitor for the Appellant: Michael Lumsdem

Counsel for the First Respondent: Mr E de Zilwa

Solicitor for the First Respondent: Sparke Melmore

Counsel for the Second Respondent: Mr PJ Ginnare

Solicitor for the Second Respondent: Australian Government Solicitor