Application for summary dismissal
10 The written submissions for the respondent disclosed that the application for summary dismissal was advanced on a number of bases. Insofar as the present proceedings seek to deal with factual matters decided in the earlier proceedings, it was argued that the doctrine of res judicata applies, and the findings against the applicants have merged in the earlier judgment. Insofar as Yates J determined that the provisions of s 24 of the Disability Discrimination Act 1992 (Cth) were not engaged (because neither the respondent nor members of the Police Force provided "services" to the applicants) the respondent argued that those legal conclusions rendered unavailable reliance on any of the events referred to in the present proceedings because the issues raised, although arising from different occasions, are legally indistinguishable from those dealt with in the first proceedings. Further arguments were also advanced to the effect that neither applicant could in the present proceedings satisfy other elements necessary to establish a case for discrimination on the grounds of disability.
11 The applicants have not complied with the directions made on 28 August 2013 that they file and serve any material upon which they wish to rely by 4 October 2013. Despite the fact that the proceedings came before Yates J on further occasions, no material in relation to the present interlocutory application was filed by the applicants, even after that date.
12 On 20 October 2013 the first applicant sent an email to the Court which Yates J construed as, in substance, a suggestion that he should recuse himself from the further hearing of the present proceedings. On 23 October 2013, directions were made that the email stand as an interlocutory application by the applicants for the removal of Yates J from hearing the proceeding. That application was listed for hearing on 22 November 2013. The proceedings (including the present interlocutory application) were otherwise adjourned for directions at the same time.
13 On 22 November 2013, Yates J heard oral argument from the parties on the question of whether he should recuse himself. He also had before him written material supplied by the applicants the previous day. On 4 December 2013, Yates J determined that he should remove himself from hearing the proceedings and that the proceedings should be re-docketed (Robinson v Commissioner of Police, New South Wales Police Force [2013] FCA 1294).
14 The proceedings were, shortly thereafter, allocated to my docket. At a directions hearing on 20 December 2013 I directed that the interlocutory application filed by the respondent on 6 September 2013 be listed for hearing. The applicants did not appear on that occasion. That hearing took place today. The applicants did not appear.
15 The interlocutory application filed on 6 September 2013 relied upon the provisions of s 31A of the Federal Court of Australia Act 1976 (Cth) or, alternatively, r 26.01 of the Federal Court Rules 2011 (Cth). In each case the contention relied upon was that the applicants had no reasonable prospect of successfully prosecuting the proceedings or that no reasonable cause of action was disclosed. As Ms Eastman candidly pointed out during the course of her submissions, the interlocutory application has been made by reference to the material provided, or necessarily incorporated, when the proceedings were commenced. At the moment, what is before the Court is largely material by way of narrative concerning the interactions between the applicants and members of the New South Wales Police Force over a period of some years. No consideration has yet been given by the Court to whether the matter should proceed by way of identification of particular points of claim or through any other attempt to achieve greater specificity of the applicants' complaints.
16 I have decided that, rather than dealing with the interlocutory application as advanced, it would be more appropriate in light of the present circumstances to deal with the proceedings under a different part of the Federal Court Rules 2011 - r 5.23 - which allows the Court to make orders dismissing a proceeding in the event of default by an applicant.
17 Dealing with the proceedings in that way will leave open the possibility that the applicants can apply to set aside the orders I will make and explain, if they are able to do so, their inaction to this point in relation to the interlocutory application.
18 There is no doubt in my mind that the applicants are in default having regard to r 5.22. They have failed to do things required under the rules, namely comply with directions made by the Court, they have failed to comply with orders of the Court and they have failed to attend a hearing.
19 I make it clear that the occasion has not yet arisen to consider the contentions upon which the respondent relies in support of the interlocutory application for dismissal of the proceedings. Should at some stage in the future the applicants be permitted to set aside the order which I propose to make, it may be necessary to give attention to those matters. On the other hand, it may not be. The applicants may have decided that they have no further interest in pursuing the matters in the present proceedings.
20 I therefore propose to order, pursuant to r 5.23, that the present proceedings be dismissed because the applicants are in default. I note that the respondent has not made a specific application for such an order, but it is within the power of the Court to proceed upon its own initiative in the present case (r 1.40).
21 The respondent has sought an order for costs. The costs of the recusal application were ordered to be the respondent's costs in the present proceedings. The reason why the proceedings will stand dismissed is because the applicants are in default. In my view, ordinary principles suggest that the respondent is entitled to an order for its costs and I propose to make an order to that effect.
22 The orders which I make are:
1. The proceedings are dismissed pursuant to r 5.23 of the Federal Court Rules 2011.
2. The applicants pay the respondent's costs of the proceedings as taxed if not agreed.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.