JUDGMENT No. 2203.1 L228 GENERAL DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NI 2162 of 1996 BETWEEN: JAMIE GERARD DOYLE APPLICANT AND: SECURE PARKING PTY LTD RESPONDENT JUDGE(S): EINFELD J 0 P DATE: 7 MAY 1998 ' PLACE: SYDNEY REASONS FOR JUDGMENT This matter is an application by way of a notice of motion for a rehearing of the applicant's claim for wrongful dismissal which was dismissed by Judicial Registrar Locke on 10 September 1997, When the motion was presented to the Court and filed on 17 November 1997, it was then several weeks out of time and, accordingly, it sought an extension of time for its filing. A motion is perhaps a surprising way to institute an appeal by way of a rehearing. It does not appear to be dealt with in the Court's rules, although it was presumably dealt with in the rules of the former Industrial Relations Court of Australia. However, no point was taken on this matter and I am prepared to treat the motion as the appropriate form of application for the rehearing of the alleged wrongful termination. When the matter first came before the Court on 19 December 1997, the extension of time was opposed by the respondent. As an extension of time may in part be determined by the merits of the substantive argument, I determined that the whole case should be fixed for hearing on 25 March 1998. I gave a number of directions requiring both sides to file affidavits and written submissions in relation to the extension of time, and outlines of the argument on the substantive application, by certain fixed times. In substance, none of those directions have been complied with by the applicant even up to the present day. -2- The hearing on 25 March was vacated when the Court was informed that the case was to be withdrawn. However, neither a notice of discontinuance nor consent orders for withdrawal were filed and the matter came back into the list on 2 April when the respondent indicated that it wished to move for summary dismissal of the case. Directions were given that a motion seeking summary dismissal be filed and served, together with affidavits in support, and an order made that the motion be returnable for 1 May. Other directions were given in connection with the motion for dismissal including affidavits in response by the applicant and written submissions. On 1 May when the motion for summary dismissal was in the list for hearing, the applicant had again not complied with the directions given. Two affidavits by his solicitor explained that the hearing date on 25 March had been vacated because the applicant had been informed by counsel that the transcript taken before the Judicial Registrar had to be obtained, and as he did not have the money to do so by 25 March, he had accepted his counsel's advice that he could not proceed without it. There was no suggestion that he had been advised to apply to the Court for an adjournment of the hearing or, more significantly, to ask the Court to make a copy of the transcript available without charge. The affidavits explained the resurrection of the case on the basis that he had subsequently borrowed the money for the transcript from his mother and that he was therefore now able to proceed. There was also a reference to the fact that as the respondent was requiring that its costs be paid, as it were, as a condition or consequence of the withdrawal, the applicant had decided to proceed. After counsel had been heard on behalf of the applicant on 1 May, and over the strong objection of counsel for the respondent, I adjourned the motion for summary dismissal to today and made an order that the applicant was to file and serve, by not later than 12 noon on 6 May, the affidavits and submissions required by the Court's orders on 19 December 1997 and 2 April 1998 as well as an explanation as to why none of these orders were complied with. I expressed astonishment then, as I do now, that the transcript of the earlier proceeding could ever have been a reason for withdrawal of a case. I still do not know why the transcript was thought by the counsel who appeared below and here to be an essential prerequisite to a full rehearing. Useful for cross examination perhaps but hardly essential, and certainly not a basis for withdrawing a case otherwise thought to be arguable. Some submissions on behalf of the applicant were filed on 6 May headed "SUBMISSIONS BY APPELLANT IN ACCORDANCE WITH THE ORDER OF THE COURT MADE ON 1 MAY 1998" and were signed by the applicant's counsel. I overlook the description of the applicant as the appellant as being of no moment. However, the submissions indicated that they were being filed against counsel's advice and on the strict instructions of the applicant that the Court's orders were to be complied with. Counsel made no objection to the directions when they were made. Yet he apparently advised the applicant to defy the Court's orders, so that these submissions would not have been filed, because they would have the effect of "prejudicing" his case at the rehearing. This argument is completely untenable, any possible "prejudice" being completely disproved by the fact that the submissions are, with one exception, directed at the demolition of the decision given by the Judicial Registrar. The one exception is a paragraph in the submissions which says: The respondent to the motion - - - that is the applicant on the appeal: - - - is aggrieved by findings in relation to the credit of the applicant and the credit of witnesses called by the respondent at the hearing which are made on page 15 and page 16. [These are pages of the Judicial Registrar's decision. ] Apart from the fact that these submissions completely misunderstand the nature of a rehearing and therefore of the proceeding in this Court, if one is to take place, and of the directions referred to, such submissions could not prejudice the applicant's case one iota. I have no doubt that the respondent is aggrieved by the Judicial Registrar's findings on credit and many other things but those grievances also have absolutely nothing to do with this appeal. The submissions therefore have not even the slightest nodding acquaintance with the orders of the Court of 1 May. Nor of course do these submissions even slightly address the Court's orders of 19 December and 2 April. From what has been said in Court, it is quite impossible that these omissions were accidental. The respondent has today further pressed its motion for dismissal and there is much merit in the submission which counsel made in support of this application. There are, as I see it, two -4- problems with dismissing the proceedings today. One is because the motion is based on the failure of the applicant's lawyers to comply with Court directions, now given on three occasions, and not the applicant himself. The respondent's motion is in substance that the appeal should be dismissed as either an abuse of process in that the applicant is not seriously pursuing the litigation because it has no merit, or because of the lawyers' contempt for the Court's orders and directions. The respondent says that the fact that the applicant's lawyers have not placed one submission or one affidavit before the Court to illustrate the substantive merits of the claim is strongly supportive of that submission. On the other hand, it is undesirable to dismiss a case summarily when there is nothing to suggest, one way or the other, that the case is hopeless and bound to fail, and when the default of the moving party is that of his lawyers. The second problem with summary dismissal is that the applicant himself is not before the Court today and the counsel who has been representing him through the hearing below and the hearing in this Court and who is the author of the submissions of 6 May is also not here. It says something about the seriousness with which counsel has approached the matter that he is not here to deal with a motion for the summary dismissal, that is the final disposition, of his client's case, and neither mentioned the matter last week, nor gave up the brief nor telephoned my Chambers to explain his absence. This Court is always more than generous to counsel or litigants in difficulty who extend courtesies of that kind but no courtesies have been extended to the Court in this regard. It is true that the applicant has been represented by other temporary counsel today but that counsel, through no fault of his own, knows nothing of this background and was only filling in. The applicant was present in Court on 1 May and he undoubtedly picked up from the nature of the proceedings that day what the views of the Court were about the way in which his lawyers were approaching the litigation. It seems to me at least possible that he was told by his counsel that he need not be here today. If so, it would be unfair that a final dismissal of his case be considered in his absence. There is another aspect of this problem. When the case commenced today, the respondent announced that if there was an order for dismissal today, it would not press for its costs. Because the applicant is not here, he does not know that that open offer, as it effectively is, has been made. In view of the past history of the matter, I think that he should be given the opportunity of hearing that that offer has been made today, especially as the respondent's -5- costs appear to have played some role in the reversal of the applicant's previous decision to discontinue his case. I should add that the respondent has indicated that if the matter is adjourned today for any purpose at all, and specifically for the purpose of having the applicant and counsel present, it may not renew its offer not to press for its costs. The applicant's stand-in counsel today has asked for a further week's adjournment of the matter to enable the completely defective submissions of 6, May to be supplemented or replaced by appropriate submissions. During the hearing I indicated, and I repeat now, that there will be no adjournment of the matter for a week, but as a judgment is open to the Court that the case be dismissed for the failure of the applicant's lawyers to comply with the Court's past orders and directions, including the complete inadequacy and inappropriateness of the written submissions filed on 6 May, it seems to me that the counsel who authored them should be given the opportunity of presenting argument in the matter. The applicant should also be given the opportunity of being present to hear that argument and any order of the Court that may strike out his case. This of course is extending a courtesy to counsel that he has not extended to the Court but I would not wish to be judged by the standards which he has applied in this matter. I have for my part told the lawyers representing the applicant today that if the case is dismissed and costs are pressed and are granted to the respondent, I would be prepared to entertain an application that the costs be paid by the applicant's lawyers and not by the applicant. If such an order is contemplated, it is appropriate to hear any submissions by the lawyers on that matter. In my view they are entitled to the courtesy of notice of this possibility because according to my standards, it is a matter at least of courtesy if not law that people should be given notice of orders that may be made adverse to them even if the Court itself has not been paid any appropriate courtesies by the people concerned. I therefore propose to stand over the motion for dismissal to 3pm tomorrow afternoon to enable the applicant to be present to hear his regular counsel argue any other matters on the motion for dismissal that he wishes to argue and to be informed of the open offer of the respondent that if the case is disposed of today it will not press for its costs. The hearing at 3pm tomorrow afternoon will take place if the applicant's solicitor notifies my Chambers and the solicitor for the respondent by not later than 5pm today that she or counsel wishes to have -6- the opportunity to make oral submissions at 3pm tomorrow in the presence of her client. If the Court has not heard from the solicitor for the applicant by Spm today that that hearing is desired, the case will be marked 'Decision Reserved' and no hearing will take place tomorrow at all. Whether or not a hearing takes place tomorrow, it should be clearly understood that the Court is contemplating a dismissal of the appeal and orders for costs against one or more of the lawyers for the applicant upon the grounds that none of the Court's orders and directions on 19 December 1997, 2 April and 1 May 1998 have been complied with, in substance if not in form, that the case should be treated as one in which the applicant is not serious about his litigation, and that it is therefore one to which Order 10 is directed in that it may be concluded that the proceedings are an abuse of process or frivolous and vexatious as dealt with by the tules. Costs of today will be reserved until tomorrow's hearing or if that hearing does not take place, until the judgment is given. | certify that this and the preceding pages are a trus cony of the 1 Reasons for Judgment herein of his Honour j Justice Einfeld VY / ; Associate Patad: 6+ OF Laan