Warner v Wong, in the matter of Bellpac Pty Limited

BELLPAC PTY LIMITED (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION) ACN 101 713 017

GUJARAT NRE COKING COAL LIMITED (FORMERLY KNOWN AS GUJARAT NRE MINERALS LIMITED)

JUDGE: GRIFFITHS J DATE: 21 April 2015 PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This matter was listed for directions this morning in somewhat unusual circumstances. The substantive proceedings were heard over a five day period commencing 9 March 2015. On 7 March 2015, i.e. the Saturday before the hearing was scheduled to commence, Mr Wong, who is the third defendant in the proceedings, emailed my Associate attaching what he said was a copy of his defence "which will be filed with the court today". Mr Wong also indicated in that email that he would be unable to attend the hearing commencing the following Monday. Although he said he had every intention of attending to defend his case, he wrote that "due to urgent circumstances, I must fly to China today." 2 When the hearing commenced on 9 March 2015, the Court dealt with what it considered was an application by Mr Wong to adjourn the proceedings. The application was refused and ex tempore reasons were delivered. 3 The issue of Mr Wong's defence is a little uncertain. Although Mr Wong referred in his email dated 7 March 2015 to him filing the defence with the Court that day (on the Saturday) in fact it is apparent from the Court's electronic records that the defence was accepted electronically by the Registry on 6 March 2015, i.e. the Friday before the hearing was due to commence. Because Mr Wong did not appear at the hearing on 9 March 2015, no issue arose as to whether or not that defence ought to have been accepted by the Registry for filing. In fact, orders had been made as far back as 7 May 2013 requiring various defendants, including Mr Wong, to serve their defences by no later than 17 May 2013. That time was subsequently extended in respect of some of the other defendants, but Mr Wong never made any application to the Court to extend the time in which he was due to file his defence. 4 On Friday 10 April 2015, i.e. one month after the Court reserved its judgment, Mr Wong sent a further unsolicited email to my Associate, which included the following: By email of 6 March 2015 to you, I made an application to his Honour for an adjournment of the hearing. I was later informed that the application was refused, and the hearing proceeded as fixed on 9 March 2015. With this email, I apply to his Honour for leave to lodge with his Honour and rely upon the attached outline of submissions. My application is made on the following bases: 1. I was unable to appear and participate at the final hearing which commenced on 9 March 2015; 2. I remain unrepresented; 3. as a matter of fairness, I seek the opportunity to submit to the Court my key arguments in support of my Defence; 4. his Honour has not yet delivered judgment; 5. there is no prejudice to the Plaintiffs if this application is granted. The Court may make orders for submissions in reply to be lodged with his Honour; and 6. there will be substantial prejudice to me if the application is refused. In view of the above, I respectfully ask his Honour to grant my application. 5 In essence, Mr Wong sought to persuade the Court that he should be granted leave to rely upon closing submissions which he annexed to his email. The closing submissions are approximately five pages in length. Mr Wong also sent several other emails to my Associate on this topic. 6 At my direction, the parties were invited to express their views as to whether leave should be granted to Mr Wong at this late stage to rely upon these closing submissions. All of the defendants who actively participated were content for the Court to grant that leave and they did not seek an opportunity to put in submissions in response. The plaintiffs sent an email on 16 April 2015. In that email the plaintiffs raised strong objections to the Court accepting any material from Mr Wong at this late stage, including his proposed closing written submissions and the defence which he now belatedly seeks to agitate. 7 When the matter was called for hearing this morning, Mr Wong did not appear. The matter was called outside. He still did not appear. Mr Wong has a history of not attending many directions hearings in these proceedings. 8 Mr Cotman SC, who appeared with Mr Wells for the plaintiffs today, opposed the Court acting upon Mr Wong's belated defence and also opposed the Court entertaining Mr Wong's written closing submissions. 9 Various reasons were set out by the plaintiffs for this position, including that Mr Wong had made an informed decision not to be an active party in the proceedings, that he did not file a defence in accordance with the Court's directions (which is a reference to Mr Wong's failure to file his defence in the time stipulated, as referred to above) and also a number of other matters, including that Mr Wong failed to deny any allegations in the Statement of Claim and that Mr Wong was aware of the hearing date when it was set down for 9 March 2015, did not appear and without explanation waited a month after the Court had reserved its judgment in the matter. 10 The plaintiffs also said that they had conducted the trial on the basis that Mr Wong had not filed a defence, was not attending the hearing, and they had cross-examined on that basis. They contended that allowing the submissions at this late stage would cause them prejudice as the trial had concluded. They added that it was also open to Mr Wong to have raised these matters well prior to this. 11 In my view, Mr Wong requires the Court's leave not only to file his defence, but also to rely upon his belated closing submissions. Although his defence was accepted by the Registry for filing electronically, this occurred in circumstances where he was almost two years outside the time stipulated by the Court for its filing. 12 Mr Cotman SC submitted that the actions of the third defendant constitute an abuse of process of the Court. I agree. Under r 2.28(1)(a) and (c) of the Federal Court Rules 2011 (Cth) the Court is empowered to order that a document be removed from the Court file, under (a)(i) on its own initiative, and under (c)(i) where the Court is satisfied that the document is otherwise an abuse of process of the Court. 13 I consider that Mr Wong's action in seeking to have the Court accept a defence more than two years after the proper time for attending to that matter amounts to an abuse of process. It is an abuse of process that is accentuated by the fact that, having taken the step of seeking to file the defence electronically, Mr Wong then failed to attend the hearing, notwithstanding that he had ample notice that it was due to commence on 9 March 2015. The Court was therefore not provided with an opportunity to deal with his conduct in filing electronically the defence in the fashion that he did. 14 The abuse of process is further accentuated by Mr Wong's conduct in waiting for one month after the Court reserved its judgment before filing written submissions, for which he then quite properly sought the Court's leave. 15 In circumstances where I propose to make an order under r 2.28 that Mr Wong's defence be removed from the Court file, there is no defence in respect of which his proposed closing submissions could operate. Even if I had granted leave retrospectively to permit Mr Wong to rely on his defence, I do not consider that he has provided any acceptable explanation for his delay in seeking to rely upon written closing submissions in respect of that document. I refuse Mr Wong's application for leave to rely upon the written submissions which were annexed to his unsolicited email dated 10 April 2015. Costs of his application will be costs in the cause. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths.