Devon v Ji [2016] FCA 988

FEDERAL COURT OF AUSTRALIA

Devon v Ji [2016] FCA 988 File number: VID 496 of 2015

Judge: DAVIES J

Date of judgment: 18 August 2016

Catchwords: PRACTICE AND PROCEDURE – application for summary judgment– where none of the claims have any reasonable prospect of success

Legislation: Federal Court of Australia Act 1976 (Cth) s 31A

Date of hearing: 5 August 2016

Registry: Victoria

Division: General Division

National Practice Area: Commercial and Corporations

Sub-area: Commercial Contracts, Banking, Finance and Insurance

Category: Catchwords

Number of paragraphs: 6

Counsel for the Applicant: The Applicant did not appear

Counsel for the Respondents The Respondents did not appear

ORDERS VID 496 of 2015

BETWEEN: HUGH DEVON Applicant

AND: JUN JI Fourth Respondent YUNSHENG CHEN Fifth Respondent

JOSEPH WYTWORNIK (and others named in the Schedule)

Sixth Respondent

JUDGE: DAVIES J DATE OF ORDER: 5 august 2016

THE COURT ORDERS THAT:

1. Judgment be entered for the Fourth to Eleventh Respondents and the Thirteenth to Twenty-Sixth Respondents against the Applicant pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth). Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

DAVIES J: 1 There are Twenty-Seven Respondents to this proceeding. On 13 April 2016, I entered summary judgment for the First, Second, Third and Twelfth Respondents against the Applicant pursuant to s 31A(2), of the Federal Court of Australia Act 1976 (Cth) ("the FCA Act"), and my reasons for decision are recorded in Devon v Thirteenth Kaysan Pty Ltd [2016] FCA 357. On 11 July 2016, I entered summary judgment for the Twenty-Seventh Respondent against the Applicant pursuant to s 31A(2) of the FCA Act and my reasons for decision are recorded in Devon v Ji [2016] FCA 797. 2 In [12] of those reasons, I referred to a submission made by counsel for the Twenty-Seventh Respondent that the Court should dismiss the proceedings of its own motion against the balance of the Respondents on the basis that the claims as against the remaining Respondents must also have no reasonable prospect of success, because they are the same claims made against those Respondents who have successfully applied under s 31A of the FCA Act. I did not accede to that submission at the time, stating that Mr Devon should be given an opportunity to address the Court separately on whether the balance of the proceedings should be dismissed in light of the earlier judgment and the judgment delivered that day. 3 On 11 July 2016 and again on 29 July 2016, Mr Devon was advised by email that the question of whether the proceeding ought to be dismissed against the remaining Respondents would be listed for hearing on Friday 5 August at 9.30 am. I noticed in the daily listing of cases for today that the matter was actually listed for hearing at 10.15 am. The matter was not, however, called on for hearing until after 10.15 am. Mr Devon was not in attendance in Court at the time and the matter was called outside Court. Nobody attended for Mr Devon and the Court is not aware of any reason as to why it is that Mr Devon was not in attendance in Court for the further hearing. 4 I will dismiss the proceeding against the remaining Respondents, being the Fourth to Eleventh Respondents and the Thirteenth to Twenty-Sixth Respondents, on the Court's own motion, pursuant to s 31A(2) of the FCA Act on the basis that none of the claims alleged as against those Respondents have any reasonable prospect of success. I so conclude on the basis that the claims against each of the remaining Respondents are the same as the claims made against those Respondents who have already successfully applied to have summary judgment entered in their favour pursuant to s 31A(2) of the FCA Act. 5 For those reasons, the Court orders: (1) Judgment be entered for the Fourth to Eleventh Respondents and the Thirteenth to Twenty-Sixth Respondents against the Applicant pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth). 6 I should also add that no notice of address for service has been received by any of the remaining Respondents and there was no attendance at Court by any of those Respondents. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies.