Simjanovska v Segal [2018] FCA 12 | Case summary

Federal Court of Australia|2018-01-15|Before: Perry J

THE COURT ORDERS, PURSUANT TO RULES 1.40, 5.22(A) AND (D) AND 5.23 OF THE FEDERAL COURT RULES 2011, THAT:

The application is dismissed with no order as to costs for want of prosecution and failure to comply with a direction of the Court.

THE COURT NOTES THAT: 2. Written reasons will be published explaining the basis on which the orders above are made on or before Monday 22 January 2018. 3. The reasons referred to at [2] above will be sent by email and hard copy to the parties. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

INTRODUCTION 1 By an application filed on 20 July 2017 the applicant seeks an extension of time under rule 31.02 of the Federal Court Rules 2011(FCR) within which to file an application for leave to appeal against a decision made on 18 April 2017 by the respondent, a Deputy District Registrar of this Court (the Registrar). The Registrar had decided not to accept for filing an application for leave to appeal a "decision" by the duty judge that the applicant's application for an interlocutory injunction did not require an urgent listing. By the letter dated 18 April 2017 advising the applicant of his decision, the Registrar wrote that: I note the terms of Rule 2.26 of the Federal Court Rules 2011 which states: A Registrar may refuse to accept the document (including a document that would, if accepted, become an originating application) if the Registrar is satisfied that the document is an abuse of the process of the Court or is frivolous or vexatious: (a) on the face of the document; or (b) by reference to any documents already filed or submitted for filing with the document. In accordance with that rule, I refuse to accept the documents. My reasons for doing so are as follows. Under the Federal Court of Australia Act 1976, an appeal may be made from a "judgment" of a Judge of the Court. However, a view of the Duty Judge that an interlocutory application is not urgent and therefore can be dealt with in the normal way is not a "judgment" within the meaning of the Act. In my view, the proposed application for leave to appeal is doomed to fail and the documents are therefore an abuse of the process of the Court. 2 Pursuant to FCR Rule 35.13, the applicant had 14 days from the date of the Registrar's decision within which to file an application for leave to appeal against that decision. That time limit expired almost three months earlier on 2 May 2017. 3 The applicant's application is supported by an affidavit and annexures totalling 175 pages. The applicant has no legal representation. 4 The respondent filed a submitting notice on 27 July 2017. As a consequence, there is no contradictor. 5 On 15 January 2018 I made orders dismissing the application with no order as to costs pursuant to rules 1.40, 5.22(a) and (d), and 5.23 of the Federal Court Rules 2011 (Cth) (FCR). In those orders, I noted that written reasons would be published explaining the basis on which these orders were made on or before 22 January 2018. These are my reasons in accordance with that notation.

2.1 The orders made on 23 August 2017 at the first case management hearing 6 This matter was listed for a first case management hearing on 23 August 2017. At that hearing, among other things I explained the sort of matters which are relevant to a consideration of an application for an extension of time according to well established principles. I also urged the applicant to seek legal advice while also explaining that whether she did so was ultimately a matter for her. 7 At the case management hearing, the applicant sought and was granted leave to amend the draft originating application to seek the same relief on the same grounds under s39B of the Judiciary Act 1903 (Cth). 8 Orders were also made at that hearing setting down a timetable for the progress of her application with which the applicant agreed. Those orders relevantly included that: (2) On or before 4pm on 21 September 2017 the applicant is to file and serve: (a) any application to amend the application for an extension of time; (b) to further amend the draft originating application to which the application for an extension of time relates; and (c) an affidavit in support of any such applications. … (4) On or before 4pm on 21 September 2017 the applicant is to file and serve any affidavits upon which she seeks to rely in substitution for the affidavits filed as at the date of this hearing in support of her application for an extension of time. (5) On or before 4pm on Friday 6 October 2017 the applicant is to file and serve written submissions in support of any applications to amend pursuant to order 2 above and in support of her application for an extension of time, with the submissions clearly identifying the issues to which they relate. … (7) The hearing of the application for an extension of time and any applications to amend filed pursuant to order 2 above is to be set down on a date to be fixed. 9 As explained further below, the applicant failed to file and serve the documents in accordance with these orders. That default was followed by a series of requests by the applicant to extend the timetable. However, despite extensions of time being granted on four occasions for the period requested or a greater period than that requested, the applicant failed to comply with the deadlines. Notably also in each instance the applicant requested an extension only on the date on which the documents were due to be filed or after the deadline had already passed.

2.2 The first default and extension to the timetable 10 On 21 September 2017 the applicant wrote to the Registry in which she requested an extension of time within which to comply with the timetabling orders made on 23 August 2017 as follows: I refer to the orders No 2 and No 4 given by Justice Perry on 23 August 2017, in which I was directed to file my amended application for an extension of time, my amended draft originating application for judicial review to which the application for an extension of time relates, also any affidavits that support these applications and upon which I seeks to rely in substitution for the affidavits that have been already filed, by 04:00 pm, on Thursday, 21 September 2017 I would like to inform you that due to some unforeseen circumstances that are beyond my control, I will not be able to file and serve the above documentary material by 04:00 pm today, 21 August 2017. 11 While the applicant described in general terms the hardship she had allegedly faced preventing her from filing her documents on time, no affidavit explaining the need for an extension was filed. 12 The applicant attended the Registry on Friday 6 October 2017 and attempted unsuccessfully to file a number of documents referred to in the orders made on 23 August 2017. As a result, orders were made in chambers on 9 October 2017 affording the applicant an extension until 4.00pm on 13 October 2017 within which to file the documents referred to in the orders made on 23 August 2017. A copy of these orders were provided to the applicant by hand on 9 October 2017 and also posted to her mailing address. This was the first extension of time to the timetabling orders.

2.3 The second default and extension to the timetable 13 On 2 November 2017 the applicant sent an email to the Registry addressed to my Associate referring to the orders made on 9 October 2017 and advising that she was unable to file and serve the documents as required by the deadline of 13 October 2017. The applicant requested a further extension of time in the following terms: In light of the above, I would like to request from the Court to varied [sic] the dates in orders 2, 3, 4 and 5 of the orders made on 23 August 2017 are each varied to read 4pm on Monday, 13 November 2017, or alternatively if possible until any other day during the week ending Friday, 17 November 2017. 14 On 3 November 2017, I amended the orders to grant an extension as requested. However, due to due extensive flooding, the Law Courts building in Queens Square had been temporarily closed and was due to remain closed in the week commencing 13 November 2017. In those circumstances, I made orders providing the applicant with further time within which to file the documents until 4pm on Friday 24 November 2017. Registry staff sent Ms Simjanovska a copy of these orders under cover of an email suggesting that she file her documents in the week commencing 20 November 2017 by which time it was anticipated that the Law Courts building would be open again. This was the second extension of the timetable.

2.4 The third extension to the timetable 15 Despite this further extension, no documents were filed on 24 November 2017. On 1 December 2017, I directed Registry staff to write to the applicant advising her that, subject to hearing from her, I was minded to dismiss her application for want of prosecution and failure to comply with a direction of the Court, with no order as to costs. That email requested a response from the applicant by 4pm on 8 December 2017 as to whether she would oppose orders being made in the terms proposed. A copy of those rules referred to was attached to the letter. (I note that by oversight rule 35.32 was attached and referred to. However that rule relates to dismissal for want of prosecution of an application for leave to appeal, rather than rules 5.22 and 5.23 (quoted below). That slip was not material and was later corrected and brought to the applicant's attention by an amendment made on 16 January 2018 to the orders made the day before.) 16 An email response was received by Registry from the applicant on 8 December 2017. That email attached a letter dated 8 December 2017 from the applicant canvassing various issues and relevantly requested a further extension of time within which to file and serve her documents by 15 December 2017. That final request was contained within the penultimate paragraph of a four page letter. 17 A response was sent to the applicant on 15 December 2017. As my chambers only became aware of the request for a further extension of time on 15 December 2017, I made orders which granted the applicant an extension until 4pm on Monday 18 December 2017. It was noted in a further email sent at 10.29am on 15 December 2017 from Registry to the applicant that "Her Honour considers this extension until Monday allows for enough time to receive this correspondence and prepare your documents for filing."

2.5 The fourth extension to the timetable 18 No documents were filed by the new deadline of 18 December 2017. On 21 December 2017 an email was received by the Registry from the applicant which I understand again canvassed the alleged reasons for her inability to file documents by 18 December 2017 and requested a further extension of time until Friday 12 January 2017. By reply email the Registry informed the applicant that a decision would be made regarding her further request when I returned from leave on 8 January 2018. 19 On 10 January 2018 I made orders in chambers granting a further extension of time until 4pm on 12 January 2018 within which to comply with the orders initially made in August 2017. I directed that a copy of these orders be sent to the applicant, together with an email noting each of the previous extensions to the timetable and that this was the fourth extension. The covering email reiterated that I was minded to dismiss the application for want of prosecution and failure to comply with orders, subject to considering any objection by the applicant, and attached the previous email dated 1 December 2017 which was to similar effect. 20 Despite the further extension, the applicant did not file any documents by 4pm on 12 January 2018. I understand that the applicant attended the Registry on that date but did not file the relevant documents. I also understand that she indicated to Registry that her preference was to file her documents late in a completed fashion on Monday 15 January 2018. No documents were filed on 15 January 2018. 21 On 15 January 2018 after 5pm I made orders dismissing this matter for want of prosecution and failure to comply with court orders pursuant to FCR rules 1.40 and 5.22(a) and (d).

Consideration 22 Relevantly, Rule 5.23(1)(b) provides that if an applicant is "in default", a respondent may apply to the Court for an order that the proceeding be dismissed. By virtue of rule 5.22 of the rules, a party is "in default" for the purposes of rule 5.23 if the party fails to: (a) do an act required to be done, or to do an act in the time required, by these Rules; or (b) comply with an order of the Court; or (c) attend a hearing in the proceeding; or (d) prosecute or defend the proceeding with due diligence. 23 As noted earlier, the respondent was not an active contradictor. Nevertheless, pursuant to rule 1.40 this Court may, at any stage of the proceeding, exercise a power mentioned in the Rules of its own initiative: see also s 37P, Federal Court of Australia Act 1976 (Cth) conferring power on the Court to dismiss a proceeding in the event of a failure to comply with a direction setting time limits. 24 The power to make an order summarily dismissing a proceeding because of an applicant's default should be exercised cautiously: Lawson v NSW Minister for Land and Water Conservation [2007] FCA 8 at [22]; Dauguet v Centrelink [2015] FCA 395 at [135]. The Court must balance the desirability of the expeditious conduct of litigation, particularly in a Court committed to a case management system, and the desirability of litigants, having a proper opportunity to present their cases: Wu v Avin Operations Pty Ltd [2006] FCA 36 at [51]. 25 The timetable for the filing of documents to progress the applicant's application for an extension of time has been extended on four occasions at her request. Further, on each occasion that an extension was granted, the extension was for the period requested or a greater period. However, the applicant has failed to comply with the orders made on 23 August 2017 including as varied by later orders extending the time for compliance and despite being on notice since 1 December 2017 that her application may be dismissed for failure to comply with court orders and for want of prosecution. None of the documents required to be filed by those orders has in fact been filed. In the circumstances, the applicant has repeatedly failed to comply with court orders and has failed to prosecute her claim with due diligence, despite the very subject matter of any appeal being the alleged failure by the duty Judge to accept her application for an interim injunction as urgent. The fact that the applicant filed an affidavit in support of her application on 17 July 2017 does not excuse her failure to comply with court orders and demonstrate reasonable diligence in prosecuting the proceedings. 26 In this regard, while there is nothing to suggest that the respondent has been prejudiced, an obligation is imposed upon the parties under ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act) to conduct the proceeding consistently with the objectives of, among other things, using the judicial and administrative resources of the Court efficiently, disposing of the court's caseload efficiently, and disposing of all proceedings in a timely manner. I note that the applicant's attention was drawn to these provisions in the guidelines containing information about my docket sent on 22 August 2017 to the applicant. 27 Finally, I am fortified in my view that this is an appropriate case for summary dismissal given that the application casts no reasonable doubt upon the correctness of the decision by the Deputy District Registrar for the reasons which he gave in his letter to the applicant. There was simply no judgment or order of the Court from which any appeal, and therefore any application for leave to appeal, could lie under s 24 of the Federal Court Act. 28 The application should therefore be dismissed with no order as to costs. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry.

Federal Court Rules 2011(Cth)r 1.40, 5.22, 5.23, 31.02

Simjanovska v Segal

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