Skinner v Commonwealth of Australia

Solicitor for the Applicant: Murray Craddock Neumann Lawyers

Solicitor for the Respondent: Ms B Kitchener of Norton Rose

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 515 of 2012

JUDGE: FLICK J DATE OF ORDER: 31 OCTOBER 2012 WHERE MADE: SYDNEY

1. The Interlocutory Application filed on 7 September 2012 seeking an extension of time for compliance with Order 2 of the orders made on 8 August 2012 is dismissed.
2. The dismissal of the proceeding effected by Order 2 of the orders made on 8 August 2012 is without prejudice to any right of the Applicant to bring fresh proceedings.
3. The Applicant is to pay the costs of the Respondent. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 515 of 2012

JUDGE: FLICK J DATE: 31 OCTOBER 2012 PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The Originating Application in the present proceeding was filed on 4 April 2012. That Originating Application seeks (inter alia) compensation "for loss of employment opportunity due to a conspiracy against the Applicant by the agents of the Respondent in the person of officers of the Department of Agriculture, Fisheries and Forestry, or in the alternative the Australian Quarantine and Inspecting Service". A Statement of Claim filed on the same day alleges that "[b]etween 2001 and 2008 the Applicant participated in various performance reviews conducted by the manager to whom she was responsible at the time". It further alleges that she was transferred to the "Quarantine Inspection Service" in 2008 and goes on to allege certain conduct engaged in by her managers in April 2009. It alleges that the "Respondent is liable for the conspiracy of its employees against the Applicant". 2 The proceeding came before the Court for its first Directions Hearing on 7 May 2012 and thereafter for further directions on 6 June, 8 August and 7 September 2012. An Amended Statement of Claim (albeit incomplete) was filed on 15 June 2012. 3 On 8 August 2012 orders were made by consent, including an order that a Further Amended Application and a Further Amended Statement of Claim were to be filed by no later than 5 September 2012. A further order was also made on 8 August 2012, namely an order that if the Applicant failed to file those amended documents, "the proceeding [would] be dismissed". 4 The Applicant failed to file the amended documents by 5 September. The amended documents, however, were said to be ready for filing on 6 September. On 7 September 2012 the Applicant sought an extension of the time within which the amended documents were to be filed. The solicitor for the Respondent opposed the extension of time. She further foreshadowed an application to have some paragraphs of the proposed Further Amended Statement of Claim struck out in the event that an extension of time was permitted. 5 On 7 September 2012 Counsel for the Applicant could not identify what power, if any, the Court had to extend the time for compliance with a self-executing order other than to submit that it was a power possessed by all superior courts. Nor was Counsel for the Applicant then able to identify what considerations may be relevant to the exercise of any such power. The application to extend time was accordingly stood over to 13 September 2012 in order to permit Counsel for the Applicant the opportunity to better present his application. The Court also directed the Respondent to provide the Applicant with a list of its objections to the proposed Further Amended Statement of Claim in light of their likely relevance to the Application being made. 6 On 13 September 2012, Counsel for the Applicant sought a further adjournment of the Interlocutory Application on the basis that the Respondent had only provided their objections to the proposed Further Amended Statement of Claim the night before. An adjournment was granted and the Interlocutory Application stood over for hearing on 24 September 2012. 7 When the Interlocutory Application was called on for hearing on 24 September 2012, Counsel for the Applicant advised that he was not ready to proceed and sought a further adjournment. The Respondent did not oppose this course and, notwithstanding considerable reservation, the Application was adjourned to 26 September 2012. Oral submissions in respect to the extension of time finally proceeded on that date.

THE POWER TO EXTEND TIME 8 Power to extend the time for compliance with an order of the Court is conferred by r 1.39 of the Federal Court Rules 2011 (Cth). That rule provides as follows: Extension and shortening of time The Court may extend or shorten a time fixed by these Rules or by order of the Court: (a) before or after the time expires; and (b) whether or not an application for extension is made before the time expires. The counterpart provision to r 1.39 in the now-repealed Federal Court Rules was Order 3 r 3. 9 As r 1.39 itself provides, the discretionary power to "extend … a time fixed … by order of the Court" may be exercised "before or after the time expires". See: Sammy Russo Meat Supplies Pty Ltd v Australian Safeway Stores Pty Ltd [1999] FCA 1381 at [13] per Goldberg J; Soh v Commonwealth of Australia [2009] FCA 32 at [10] per Tamberlin J. An order extending time to a party who has failed to comply with an order previously made is an order in the nature of an "indulgence": Bishop v The Queen (1982) 58 FLR 233 at 235 per Deane J. 10 The discretionary power conferred by the rule is a power to be exercised to relieve against injustice. Thus, when considering a comparable provision in the Supreme Court Rules 1970 (NSW), Wilson J in FAI General Insurance Company Limited v Southern Cross Exploration NL (1988) 165 CLR 268 at 283-284 observed: The plain meaning of these words is very wide. The court may extend "any time" fixed by "any … order" and may do so as well after as before the time expires and even though the application to extend is not made until after the time has expired. As Baggallay LJ said in Carter v Stubbs [(1880) 6 QBD 116 at 120] of the analogous English rule, it gives "very full discretionary power; indeed, I can hardly imagine a more extended discretion". It is a remedial provision which confers on a court a broad power to relieve against injustice. The discretion so conferred is not readily to be limited by judicial fiat. The fact that it manifestly is a power to be exercised with caution and, in the case of conditional orders, with due regard to the public policy centred in the finality of litigation does not warrant an arbitrary limitation of the power itself, not expressed in the words of the rule, so as to deny its capacity to apply to circumstances such as those which are to be found in the present case. It would be wrong to so read the rule as to deny to a court power to prevent injustice in circumstances where the party subject to a conditional order ought to be excused from non-compliance. An argument was there rejected that the power did not extend to "revive an action which stands dismissed". Brennan, Deane and Dawson JJ agreed with Wilson J: (1988) 165 CLR at 286. See also: Allianz Australia Insurance Ltd v Bluescope Steel Ltd [2012] NSWCA 240 at [31] per Beazley JA (Macfarlan and Barrett JJA agreeing). The power to extend time may thus be exercised notwithstanding that an earlier order has taken effect: Nucoorilma Clan of the Gamilaaroy Aboriginal People v New South Wales Minister for Land & Water Conservation [2009] FCA 1043 at [22] per Buchanan J. 11 In the absence of any express constraints imposed upon the manner in which the discretion conferred by r 1.39 is to be exercised, it would be unwise and inappropriate to attempt any exhaustive identification of considerations relevant to the exercise of that power. The power is to be exercised by reference to the facts and circumstances of each individual case. Subject to that necessary qualification, and without in any manner seeking to set forth an exhaustive list of considerations, some of the considerations relevant to the exercise of the power may include the following: the requirement imposed upon the Court by s 37M of the Federal Court of Australia Act 1976 (Cth), and the corresponding duty imposed upon the parties by s 37N, to ensure that a proceeding is resolved "according to law" and as "quickly, inexpensively and efficiently as possible"; the nature of the rule or order which has not been complied with - non-compliance with a rule or order fixing the time for the filing of a defence may attract different considerations from (for example) a "self-executing" order that a proceeding be dismissed; if the rule or order is directed to the doing of an act within a specified period of time - the duration of the extension of time which is sought; the history of the proceeding, including the making of previous orders and whether or not there has been compliance with those orders; the reasons for non-compliance with the rule or order; in the event of non-compliance with an order or direction - whether the order or direction had been made with the consent of the party in default; the respective merits of the claim or defence; whether the "indulgence" which is sought is sought in respect to non-compliance with a "rule" of Court as opposed to an "order" of the Court - it may perhaps be the case that there is a difference between a "rule" universally applicable to all proceedings and an "order" of the Court which may be more directed to the particular circumstances of a particular proceeding and the competing rights of the parties to that proceeding; the prejudice that may be suffered by the party seeking the extension of time; and the prejudice that may be suffered by an opposing party and whether any prejudice may be adequately addressed by (for example) an order for costs. See also: Goodwill Group Pty Ltd v Pongrass Associates Pty Ltd [2002] FCA 1203 at [106] per French J (as his Honour then was). Neither a rule of Court (Outboard Marine Australia Pty Ltd v Byrnes [1974] 1 NSWLR 27 at 30 per Reynolds, Hutley and Bowen JJA; SZQZJ v Minister for Immigration and Citizenship [2012] FCA 867 at [18]) nor an order of the Court should become an instrument of tyranny. Both the rules of Court and the orders of the Court in any particular proceeding are directed to ensuring the proper administration of justice and ensuring justice as between the parties. 12 The general power to extend time conferred by r 1.39 of the Federal Court Rules 2011 is but an instance of powers found elsewhere in both statutory provisions and in other Rules of this Court which empower the Court to grant an extension of time in specific instances. Reference may be made (for example) to the power conferred by s 11(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) to permit an application for review to be filed outside the 28 day period there specified (eg. Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 per Wilcox J) and the power conferred by r 36.05 of the Federal Court Rules 2011 to extend the time within which a notice of appeal is to be filed (eg. SZQBT v Minister for Immigration and Citizenship [2011] FCA 1281 at [15] per Collier J; Gilbert v Minister for Immigration and Citizenship [2011] FCA 1289; 199 FCR 182 per North J; SZQBI v Minister for Immigration and Citizenship [2011] FCA 1388 at [16]-[18] per Cowdroy J; SZPZJ v Minister for Immigration and Citizenship [2012] FCA 18 per Nicholas J; Gordon v Minister for Immigration and Citizenship [2012] FCA 119 at [28] per Collier J; SZQMC v Minister for Immigration and Citizenship [2012] FCA 128 at [11]-[13], 125 ALD 230 at 233-234 per Bromberg J). 13 At its most fundamental, any exercise of the discretion conferred by r 1.39 is a balancing of what may well be a number of competing considerations. The interests of the party seeking the "indulgence" may well be contrary to those of the party opposing the extension of time - especially in the case of a "self-executing order" that a proceeding be dismissed. But that is true of many exercises of judicial discretion. 14 Rule 1.39 has counterparts in the rules of other courts and instances can be provided where an extension of time has been sought to avoid the consequences of a self-executing order that a proceeding be dismissed: eg. Douglas v Madden (No 2) [2009] NSWSC 194. Instances can also be provided in this Court where a party seeks to be relieved from the consequences of a "self-executing order": eg. Sammy Russo Meat Supplies Pty Ltd (supra); Flashback Holdings Pty Ltd v Showtime DVD Holdings Pty Ltd (No 5) [2009] FCA 859 per Perram J. 15 The existence of a discretionary power to extend the time for compliance with the orders made on 8 August 2012 may thus be accepted. The question remains as to whether or not that power should be exercised.

INJUSTICE OR UNEXPLAINED DELAY? 16 Any consideration of any "injustice" suffered by the Applicant, if an extension of time is not granted, must thus necessarily also take into account (inter alia) the "injustice" which may be suffered by the Respondent occasioned by: (a) non-compliance by the Applicant with previous orders of the Court and the explanation for non-compliance with (in particular) the orders made on 8 August 2012; and (b) the asserted deficiencies in the form and content of the Further Amended Statement of Claim now sought to be filed, albeit outside the time previously ordered.

Prior non-compliance with orders 17 Insofar as there has been non-compliance with previous orders of the Court, the relevant chronology may be summarised as follows: Date of Court Order Order Compliance 7 May 2012 "The Applicant is to file and serve an Amended Statement of Claim by no later than 14 May 2012." Not complied with. 6 June 2012 By consent: "The Applicant is to file and serve an Amended Statement of Claim by no later than 15 June 2012." Complied with in part on 15 June 2012. A number of pages of the Amended Statement of Claim were not filed. 6 June 2012 By consent: "The Applicant respond to the Respondent's request for further and better particulars by no later than 13 July 2012." Not complied with. 23 July 2012 By consent: "The Applicant to file and serve an Amended Application by no later than 23 July 2012." Not complied with. 23 July 2012 By consent: Pages 10-16 of the Amended Statement of Claim be filed by no later than 23 July 2012. Not complied with. 23 July 2012 By consent: A response to the Respondent's request for further and better particulars be provided by no later than 23 July 2012. Not complied with. An incomplete draft was provided to the Respondents on 26 July 2012. 8 August 2012 By consent: "The Applicant file and serve a Further Amended Application and a Further Amended Statement of Claim by no later than 5 September 2012." Not complied with. An attempt was made to file the documents in the Registry on 6 September 2012 and a further attempt was made by Counsel to file the documents in Court on 7 September 2012.

18 Why any further "indulgence" ought to be granted to an Applicant against such a background is not self-evident.

The explanation for non-compliance 19 The explanation provided by the Applicant is less than satisfactory. 20 It was common ground that the Applicant was in Court on 8 August 2012 when orders were made on that date. She was presumably aware of the nature and effect of the orders under consideration and presumably gave instructions to her Counsel to consent to the making of those orders. 21 The affidavit evidence initially relied upon by the Applicant to explain her non-compliance was that set forth in her Affidavits sworn on 7 and 13 September 2012. The explanation there provided was that she attended in her barrister's Chambers on 4 September "to finalise the amended set of pleadings, which were required to be filed and served upon the Respondent by 5 September 2012". She further explains that her father was "gravely ill" and an "in-house patient at Campbelltown hospital". During the conference she had to spend a lot of time on the telephone and had to leave the Chambers before the amended set of pleadings could be finalised. Further material that had to be provided to enable the pleadings to be finalised was not provided until 5 September. 22 The deficiencies in that explanation - including the absence of any explanation as to what steps had been undertaken between 8 August 2012 and the conference with Counsel on 4 September 2012 to comply with the orders - were brought to the attention of Counsel for the Applicant. 23 Over the objection of the Respondent, leave was given to the Applicant to re-open her case on the application to extend time and to call further oral evidence from the Applicant. Ms Skinner was, with respect, a witness who experienced significant difficulties in recalling the detail of the events as they unfolded. Subject to that observation, her evidence was that she had only a limited number of conversations with her legal representatives. On her account, there were two or three such conversations. She was unsure why the conference that had been organised for 4 September 2012 had been left to the day before compliance with the relevant order was required. 24 In recognition of the fact that such further evidence did not provide any adequate account as to the steps taken between 8 August and 5 September 2012 to comply with the orders made, Counsel for the Applicant again sought leave to call further evidence - this time from his instructing solicitor. The nature of that application was perhaps curious. It was an application to call evidence from an instructing solicitor to contradict or (on another view) supplement the evidence of the client. Why such evidence from the instructing solicitor had not been included in an Affidavit filed prior to the hearing of the Interlocutory Application was not explained. Clearly an explanation of the steps taken between 8 August and 5 September 2012 was required - or would, at the very least, have been prudent. Even separate from any assessment that may have been made by the legal representatives for the Applicant, the solicitors for the Respondent had advised their opponents on 21 September 2012 that they would be submitting that no "reasonable explanation or excuse" had been provided for "non-compliance" with the order. 25 Again over the objection of the Respondent, leave was given to call evidence from the instructing solicitor, Mr Twemlow. Contrary to the evidence of his client, Mr Twemlow maintained that Ms Skinner had telephoned him approximately 30 times during the period between 8 August and 5 September. She telephoned to "discuss her matter" and "her tenure with the Commonwealth". She came into his office on one occasion within 10 to 14 days following the hearing on 8 August. She then provided him with a box of documents. Mr Twemlow read those documents in conference, reread them in Ms Skinner's absence and also discussed the matter with his supervising Principal. Mr Tremlow also prepared a chronology and forwarded a copy of the documents and the chronology to Counsel. Mr Twemlow explained that Counsel was really acting as a solicitor and barrister in the matter and that he had played no part in the drafting of any pleading. That was left to Counsel. He could not explain why a conference had not been organised prior to 4 September 2012. 26 The explanation provided, supplemented as it was by further oral evidence, remained less than satisfactory. It offers no explanation (for example) in respect to: why the initial Statement of Claim filed on 4 April 2012 was so manifestly deficient. This absence of explanation only assumes greater significance when it is recalled that the Applicant has been represented by the same Counsel throughout. Accordingly, there has been no occasion for new legal representatives to perhaps seek to formulate the Applicant's claims in a different manner. The fact that Counsel was initially retained on a "direct access" basis, of itself, provides no satisfactory explanation. why the Applicant had not, in the course of preparing her pleadings, provided a proper reply to the various requests for particulars; the reasons for non-compliance with the orders made on 7 May 2012; the reasons for non-compliance with the orders made by consent on 6 June 2012 and 23 July 2012; and the reasons why drafting a Statement of Claim has confronted the Applicant with such difficulties. Even if attention is focussed upon the orders made on 8 August 2012, there is no explanation as to: what steps, if any, were taken between 8 August (or perhaps 10 to 14 days thereafter) and the conference held on 4 September 2012 in order to comply with the orders made on 8 August; why, if it was considered necessary to hold a conference in order to "to finalise the amended set of pleadings", that conference was held on the eve of the day the "the amended set of pleadings" was required to be filed; and why, if the "further materials" were provided on 5 September, "the amended set of pleadings" could not be filed on that day. 27 Even given the opportunity to re-open and supplement the evidence as to the reasons for non-compliance with the self-executing order made on 8 August 2012, it is respectfully concluded that no satisfactory explanation has been provided.

The proposed Further Amended Statement of Claim 28 A further consideration relevant to the exercise of the discretion to extend time now sought to be exercised by the Applicant is the form and content of her proposed amended pleadings which were said to be available on 6 September 2012. The Court was informed that, between 6 September and the date of the hearing of the present Interlocutory Application, further amendments to the proposed pleadings had taken place. 29 The Court, it is considered, is not confined to a consideration of (for example) matters going to past defaults and explanations for non-compliance. The Court can also look forward and take into account the form and content of the pleadings to be filed - if an extension of time for compliance were granted. 30 It may be, however, that a distinction should be drawn, between: deficiencies in a proposed pleading which can be the subject of a request for particulars or proposed causes of action in respect to which there is a readily identifiable defence. In such cases it may be that the preferable course is to grant the extension of time sought and leave it to a respondent to either request further particulars, file a defence or to seek to have the pleading struck out; and deficiencies in a proposed pleading which amount to a failure to plead each of the elements of a cause of action. It may be that such a distinction can be illusory in practice - the fate of a pleading which may plead all of the elements of a cause of action but which (for example) is clearly out of time is perhaps in no different position to a pleading which fails to disclose a cause of action. And it may be that a pleading which requires further particulars to be provided in respect to a single cause of action should be viewed differently to a pleading which requires further particulars to be provided in respect to multiple causes of action. Prejudice to an opposing party which could be readily addressed if there were perhaps a single deficiency may attract a more favourable exercise of the discretion to extend time than a pleading which contains a series of deficiencies such that the prejudice to the respondent is more in the nature of an accumulated or aggregated prejudice. 31 When exercising a discretion directed to alleviating an "injustice" between the competing interests of opposing parties where a proceeding has been dismissed pursuant to a self-executing order, it may be that a court should lean in favour of extending time even though a pleading may still suffer from some deficiencies which can be rectified by the giving of further directions. 32 The course pursued in the present proceeding is to not focus to any great extent upon those deficiencies which could be remedied by future directions. Even so viewed, however, it is concluded that the deficiencies which remain in the proposed amended pleading are such that they count against any exercise of discretion in favour of the Applicant. 33 Those deficiencies start at the very outset of the proposed Further Amended Statement of Claim. Paragraph [1] is in the following terms (without alteration): At all material times the Respondent conducted a quarantine inspection service pursuant to s51(ix) of the Commonwealth of Australia Constitution Act (1901) (Cth) (the Constitution). Power pursuant to s51(ix) is exercised "subject to this Constitution," Paragraph [3] then provides as follows (again without alteration): There is an implied term in the Constitution that the Respondent will not intentionally cuase (sic) harm to those persons it employs pursuant to its powers. In the course of oral submissions, it was said that this term was "an implied term in the Constitution preventing the Commonwealth or prohibiting the Commonwealth from intentionally harming those it employed incidental to the powers that it is given under the placita in section 51, most specificially in this instance section 51(ix), which gives the Commonwealth the power to conduct a quarantine service". Section 51(ix) of the Constitution confers a non-exclusive power upon the Commonwealth Parliament to make laws "with respect to … quarantine": Ex parte Nelson (No 1) (1928) 42 CLR 209 at 217-218 per Knox CJ, Gavan Duffy and Starke JJ. And, although it may now be accepted that the Constitution may be the source of a range of implied freedoms (eg. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; Hogan v Hinch [2011] HCA 4 at [49], 243 CLR 506 at 543-544 per French CJ), no authority (perhaps not surprisingly) was cited to support the implied term now advocated by Counsel for the Applicant. 34 The difficulty occasioned by such a pleading is that it leaves unspecified whether paragraphs [1] and [3] are intended to plead a cause of action founded upon such an implied term and a relevant breach. If so, no breach is pleaded. The difficulty was addressed to some extent by Counsel for the Applicant accepting that the pleading was more appropriate to a reply to an anticipated defence that may be filed by the Respondent. It was anticipated by Counsel that the Respondent would rely upon s 44 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) which provides as follows: Action for damages not to lie against Commonwealth etc. in certain cases (1) Subject to section 45, an action or other proceeding for damages does not lie against the Commonwealth, a Commonwealth authority, a licensed corporation or an employee in respect of: (a) an injury sustained by an employee in the course of his or her employment, being an injury in respect of which the Commonwealth, Commonwealth authority or licensed corporation would, but for this subsection, be liable (whether vicariously or otherwise) for damages; or (b) the loss of, or damage to, property used by an employee resulting from such an injury; whether that injury, loss or damage occurred before or after the commencement of this section. (2) Subsection (1) does not apply in relation to an action or proceeding instituted before the commencement of this section. (3) If: (a) an employee has suffered an injury in the course of his or her employment; and (b) that injury results in that employee's death; subsection (1) does not prevent a dependant of that employee bringing an action against the Commonwealth, a Commonwealth authority, a licensed corporation or another employee in respect of the death of the first‑mentioned employee. (4) Subsection (3) applies whether or not the deceased employee, before his or her death, had made an election under subsection 45(1). The intent of paragraphs [1] and [3] (it was submitted) was to foreshadow a reply that that provision was beyond the Constitutional competence of the Commonwealth Parliament. Even if that is so, paragraphs [1] and [3] are not a proper manner by which to plead the invalidity of s 44. 35 On any view of it, paragraphs [1] and [3] of the proposed Further Amended Statement of Claim would be embarrassing if they were to remain. 36 A second and separate difficulty is occasioned by the manner in which it was proposed to plead the tort of conspiracy. Paragraphs [9]-[25] set forth the material facts said to give rise to this proposed cause of action. One deficiency was readily acknowledged at the outset by Counsel for the Applicant - namely any pleading of conspiracy would need to sustain a conclusion that the "predominant purpose" of the conspiracy was to injure the Applicant. In discussing the elements of the tort of conspiracy, Kaye and Beach JJ in Little v Law Institute of Victoria (No 3) [1990] VR 257 at 271-272 observed: It follows that a statement of claim pleading tortious conspiracy must allege an agreement or combination between defendants to injure or harm the plaintiff, overt acts of the defendants in furtherance of the agreement or combination, and consequential injury or damage suffered by the plaintiff: … In the present case the allegations contained in para. 11 of the statement of claim constitute a pleading of an agreement or combination to injure the appellant. For the purposes of the pleading summons, it may be assumed that the appellant, at the trial, would prove the existence of an agreement or combination between the respondents to injure him in the manner alleged. However, the pleadings do not disclose a cause of action unless the allegations of overt acts as pleaded are capable of sustaining the conclusion that the predominant purpose of the respondent's agreement was to injure the appellant in the practice of his profession. See also: Council for the City of the Gold Coast v Pioneer Concrete (Qld) Pty Ltd (1998) 157 ALR 135 at 150 per Drummond J. Further difficulties confronting the Applicant's proposed pleadings include whether the element of "intent" is sufficiently pleaded by simply pleading that named persons "wrongfully and maliciously conspired …" and whether the Respondent Commonwealth can be vicariously liable for the conspiracy alleged: McKellar v Container Terminal Management Services Ltd [1999] FCA 1101 at [198], 165 ALR 409 at 446 per Weinberg J. It is, however, unnecessary to resolve any question as to whether these difficulties would provide further reason for relieving the Applicant from her non-compliance with the orders made on 8 August 2012. 37 A third difficulty emerges from the manner in which the Applicant formulates its cause of action for misfeasance in a public office. The elements of the tort of misfeasance were summarised in Porter v OAMPS Ltd [2005] FCA 232 at [103], 215 ALR 327 at 352 by Goldberg J as follows: The elements of the tort of misfeasance in public office are: • there is a public officer; • who owes a public duty (including to the plaintiff as a member of the public); • which the public officer has breached; • the breach of duty has caused loss or damage to the plaintiff; and • the public officer breached the duty with the intention of causing harm to the plaintiff or with the knowledge that he or she was acting in excess of his or her powers. In Rush v Commissioner of Police [2006] FCA 12 at [121], 150 FCR 165 at 197-198 Finn J further addressed the elements of the tort when he noted: … the tort can take two forms. In one form (that of "targeted malice") it must be shown that the public officer in question has acted as such with an actual intent to cause injury to a person or persons. In its alternate form it must be shown either that the officer has actual knowledge both that his or her action was beyond power and would cause or be likely to cause injury or else that the officer has acted with reckless indifference both to the possibility his or her action was beyond power and to the possibility that that action would cause or be likely to cause injury … An allegation of misfeasance in public office is, self-evidently, a serious allegation: Pharm-a-Care Laboratories Pty Ltd v Commonwealth of Australia (No 3) [2010] FCA 361 at [66], 267 ALR 494 at 512. 38 The confined nature of the tort of misfeasance, however, is constantly to be borne in mind. In Northern Territory of Australia v Mengel (1996) 185 CLR 307 at 347, Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ observed: The cases do not establish that misfeasance in public office is constituted simply by an act of a public officer which he or she knows is beyond power and which results in damage. Nor is that required by policy or by principle. Policy and principle both suggest that liability should be more closely confined. So far as policy is concerned, it is to be borne in mind that, although the tort is the tort of a public officer, he or she is liable personally and, unless there is de facto authority, there will ordinarily only be personal liability. 39 One difficulty of present relevance is the absence of any allegation that the officers identified in paragraph [7] of the proposed Further Amended Statement of Claim are "public officers" for the purposes of the tort of misfeasance or that there has been an abuse of any "public power" or "public duty". The nature of the "public office" is inextricably linked with the tort being confined to an abuse of "public power": Leerdam v Noori [2009] NSWCA 90, 227 FLR 210. Spigelman CJ there observed: [3] The concept of "public office" or "public officer" appears in various legal contexts, both statutory and at common law: see the summary of the wide range of case law by Byrne J in R v McCann [1998] 2 Qd R 56 at 67-74. There is no authoritative statement of a test for determining what constitutes a public officer for purposes of the tort of misfeasance. Nor is one needed. In almost all cases the answer will be obvious. (See Society of Lloyd's v Henderson [2008] 1 WLR 2255 at [23]. The most detailed consideration of Australian authorities is T Cockburn and M Thomas "Personal liability of public officers in the tort of misfeasance in public office" (2001) Torts Law Journal 80, 245.) [4] Where there is any doubt about whether a particular person occupies a "public office" for purpose of the tort, it will ordinarily be enough to approach the matter on the basis that the tort is "concerned with" the "misuse" or "abuse" of public power (Sanders v Snell (1998) 196 CLR 329 at [37]) or that the tort is "concerned with performance of public duties" (Sanders v Snell at [39]). There is no relevant difference, as these citations from the joint judgment in Sanders v Snell indicate, between authorities which use the language of "duty" and those which use the language of "power". The formulation "abuses his office" is to be found in the foundational authority Henly v Mayor of Lyme (1828) 130 ER 995 at 1001. The allegation that Counsel for the Applicant relies upon to satisfy the requirement that the named officers are "public officers" is the allegation that the named persons were "employed" by the Respondent and that those persons had "line management responsibility for the Applicant…". Such allegations, it is concluded, fall well short of an allegation that the named persons occupied a "public office". More importantly, there is an absence of any allegation or identification of the "public power" or "public duty" being exercised. Nor is it apparent why the Commonwealth would be liable for their conduct. It may be accepted that in some circumstances the Commonwealth may be vicariously liable for the tort of misfeasance in public office: McKellar v Container Terminal Management Services Ltd [1999] FCA 1101 at [250]-[253], 165 ALR 409 at 458 per Weinberg J. See also Moder v Commonwealth of Australia [2012] QCA 92 at [65]-[74], 261 FLR 396 at 413-416. An allegation that the Respondent "employed" the officers named, however, falls well short of any allegation that would expose the Respondent in the present proceeding to vicarious liability. 40 These are just some of the deficiencies in the proposed Further Amended Statement of Claim. Further deficiencies were previously brought to the attention of those representing the Applicant in correspondence from the solicitors for the Respondent dated 12 September 2012. It is not necessary to record in any greater detail the other criticisms which have been made by the Respondent of the proposed pleading. It is sufficient, for present purposes, to conclude that the deficiencies in the proposed pleading - some of which are readily acknowledged by Counsel for the Applicant - means that the Applicant continues to fail to adequately plead a number of the causes of action that she seeks to rely upon. 41 If leave to amend were sought to plead the causes of action set forth in the proposed Further Amended Statement of Claim, such leave would be refused. Even if it were appropriate to adopt a less exacting standard when considering whether a party should be relieved from the consequences of a self-executing order, the pleading presently under consideration would fail to meet even that less exacting standard.

THE ABILITY TO BRING FRESH PROCEEDINGS? 42 In the event that the time for compliance with the self-executing order was not extended and the proceeding were to stand dismissed, the Applicant sought an order permitting her to commence fresh proceedings. 43 Rule 39.03 of the Federal Court Rules 2011 provides: Dismissal of proceedings and stay of further proceedings (1) If the Court makes an order dismissing a proceeding or part of a proceeding, the applicant may apply to the Court: (a) for an order that the dismissal be without prejudice to any right of the applicant to bring fresh proceedings; or (b) for leave to claim the same relief in a new proceeding. (2) If: (a) a proceeding has been dismissed in whole or in part; and (b) the Court has ordered the applicant to pay another party's (the second party's) costs; the second party may apply to the Court for an order staying any further proceedings brought by the applicant against the second party on the same or substantially the same cause of action or relief, until the costs have been paid. The order sought by the Applicant would be pursuant to r 39.03(1). That rule had its counterpart in Order 35 r 6(1) of the now-repealed Federal Court Rules. 44 The discretion conferred by r 39.03(1) is not confined by criteria which are expressly stated. It is a discretion, it is considered, which should be exercised by reference primarily to the competing rights of the parties. In circumstances where the dismissal of a proceeding occurs at the outset and in advance of any defence or any other step in the proceeding having been taken, it may be difficult for a respondent to point to any prejudice which would preclude the discretion being exercised in an applicant's favour. Indeed, it may well be the case that in such circumstances irrevocable prejudice would be occasioned to an applicant if an order were not made permitting him to "bring fresh proceedings". 45 In the present proceeding it would work prejudice to the Applicant if an order were not made permitting her to "bring fresh proceedings". To avoid any potential prejudice to the Applicant, any "fresh proceeding" that she may commence should be taken to have been commenced as from the date of the existing proceeding which stands dismissed.

CONCLUSIONS 46 In such circumstances it is concluded that the extension of time requested should be refused. The proceeding stands dismissed. 47 This conclusion is founded upon: the history of the proceeding to date and the repeated non-compliance with the orders of the Court; the absence of any adequate explanation for the failure to comply with the orders made on 8 August 2012; the fact that the proposed Further Amended Statement of Claim remains confusing and still fails to adequately plead a number of the causes of action upon which the Applicant seeks to rely; and an evaluation of the competing interests of both the Applicant and the Respondent and the overall interests in the administration of justice. 48 The Applicant, it is concluded, has been given repeated opportunities to properly plead her causes of action against the Respondent. She has repeatedly failed to do so and the most recent attempt discloses only further deficiencies. Additional time may permit the Applicant an opportunity to properly plead any such case as she may wish to advance. To extend time would only expose the Respondent to the prejudice (and costs) of repeatedly having to answer a pleading which fails to properly plead the causes of action upon which the Applicant seeks to rely. Although it is accepted that the Respondent, the Commonwealth of Australia, may be regarded as the ultimate "model litigant", the duties imposed upon a model litigant do not extend to consenting to repeated extensions of time to allow a claimant to properly formulate its claims through a process of trial and error. 49 At the conclusion of the hearing of the Interlocutory Application on 27 September 2012, an order was made pursuant to s 53A of the Federal Court of Australia Act 1976 (Cth) that the matter be referred to mediation. Concern was expressed during the course of the hearing, and is still expressed, as to the costs being incurred by the Applicant. As Counsel for the Applicant submitted, that was primarily a matter for him to consider. The solicitor for the Respondent opposed the order for mediation; it was her position that she would prefer to embark upon any mediation after judgment. The order was made irrespective. Regrettably, the mediation proved unsuccessful. 50 The proceeding stands dismissed pursuant to Order 2 as made on 8 August 2012. 51 There is no reason why the Applicant should not pay the costs of the Respondent.

THE ORDERS OF THE COURT ARE: 1. The Interlocutory Application filed on 7 September 2012 seeking an extension of time for compliance with Order 2 of the orders made on 8 August 2012 is dismissed. 2. The dismissal of the proceeding effected by Order 2 of the orders made on 8 August 2012 is without prejudice to any right of the Applicant to bring fresh proceedings. 3. The Applicant is to pay the costs of the Respondent I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.