Federal Court of Australia Joy v UGL Operations and Maintenance Pty Limited (No 2) [2022] FCA 1086 File number: WAD 31 of 2021 Judgment of: FEUTRILL J Date of judgment: 14 September 2022 Catchwords: HUMAN RIGHTS – application to dismiss proceedings under r 5.23 of the Federal Court Rules 2011 (Cth) due to default by the applicant – circumstances and preconditions giving rise to the Court's discretionary exercise of power to dismiss proceedings under r 5.23 – impact of history of non-compliance and impact of delay – application dismissed Legislation: Federal Court of Australia Act 1976 (Cth) ss 31A(2), 37M, 37P Federal Court Rules 2011 (Cth) rr 1.61, 5.22, 5.22(d), 5.23, 5.23(1)(b)(i), 16.21, 26.01 Cases cited: Geneva Laboratories Ltd v Prestige Premium Deals Pty Ltd (No 4) [2016] FCA 867; (2016) 120 IPR 133 Joy v UGL Operations and Maintenance Pty Limited [2021] FCA 1282 Lenijamar Pty Ltd v AGC (Advances) Limited (1990) 27 FCR 388 Professional Administration Service Centres Pty Limited v Commissioner of Taxation [2012] FCAFC 180; (2012) 295 ALR 52 Trade Practices Commission v Australian Iron & Steel Pty Ltd (1990) 22 FCR 305 Division: General Division Registry: Western Australia National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 37 Date of hearing: 21 July 2022 Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondent: Mr ND Ellery Solicitor for the Respondent: Corrs Chambers Westgarth ORDERS WAD 31 of 2021 BETWEEN: NAVIN VELLAPARAMBIL JOY Applicant AND: UGL OPERATIONS AND MAINTENANCE PTY LIMITED Respondent order made by: FEUTRILL J DATE OF ORDER: 14 September 2022 THE COURT ORDERS THAT: 1. The respondent's interlocutory application lodged 28 January 2022 is dismissed. 2. There is no order as to the costs of the application. 3. By 4.00 pm on 12 October 2022, the respondent is to file and serve its defence. 4. The matter is listed for a further case management hearing at not before 9.15 am (AWST) on 19 October 2022. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT FEUTRILL J: Introduction 1 The respondent made an interlocutory application for orders to dismiss the proceedings pursuant to r 5.23(1)(b)(i) of the Federal Court Rules 2011 (Cth) on the ground that the applicant is in default. The foundation for the application is a contention that the applicant is in default for failing to comply with an order of the Court made on 21 October 2021 and (or) for failing to prosecute the proceedings with due diligence. 2 For the reasons which follow, the respondent's application is dismissed. Background 3 On 18 February 2021, the applicant commenced the proceedings by originating application. That application was supported by an affidavit of the applicant affirmed on 19 March 2021 and filed on 22 March 2021. On 29 March 2021, the respondent filed a notice of appointment of a lawyer. 4 On 15 April 2021, the Court made orders, amongst others, requiring the applicant to file and serve a concise statement or a statement of claim by 7 May 2021. The applicant filed a statement of claim on 7 May 2021. 5 On 28 May 2021, the Court made orders, amongst others, vacating the orders made 15 April 2021 and requiring the applicant to file and serve an amended statement of claim or concise statement by 4 June 2021. On 14 June 2021, the Court made orders vacating the orders of 28 May 2021 and requiring the applicant to file and serve an amended statement of claim or concise statement by 2 July 2021. On 18 June 2021, the applicant filed another statement of claim. 6 On 22 July 2021, the respondent applied for interlocutory orders pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) and (or) r 26.01 of the Rules requesting orders that parts of the proceeding be summarily dismissed. The respondent also sought orders that parts of the statement of claim be struck out pursuant to r 16.21 of the Rules. On 28 July 2021, the Court made orders to the effect that the respondent was not required to file a defence to the statement of claim and that the date for it to do so would be set after determination of the application for summary dismissal and to strike out various parts of the statement of claim. 7 On 5 August 2021, the Court made orders, amongst others, requiring the applicant to file written submissions in response to the respondent's interlocutory application by 2 September 2021. On 2 September 2021, the applicant filed his written submissions. 8 On 29 September 2021, the respondent's interlocutory application for summary dismissal and to strike out parts of the statement of claim was heard. On 21 October 2021, the Court delivered judgment and made orders on the application to the following effect. 1. The amended statement of claim be struck out in part and the causes of action dismissed in part. 2. There be liberty to plead within 30 days a fresh further amended statement of claim provided that it conforms with the reasons for this judgment. 3. Costs of this application be in the cause. No order was made requiring the respondent to file a defence. 9 Annexure A to the reasons for decision is a copy of the statement of claim marked up to identify the causes of action that were dismissed and the parts of the statement of claim that were struck out and in respect of which the applicant had liberty to re-plead. Those parts of the statement of claim: (a) struck through with red lines are the parts of the statement of claim dismissed and (or) struck out with no liberty re-plead; and (b) struck through with blue lines are to be dismissed, but with liberty to re-plead those matters in conformity with the reasons: Joy v UGL Operations and Maintenance Pty Limited [2021] FCA 1282. 10 The effect of the orders of 21 October 2021 and the reasons for decision is that while parts of the statement of claim have been struck out, there are parts of the statement of claim that have survived and remain intact. The orders were not to the effect that, having struck out parts of the statement of claim, the whole of the statement of claim was to be struck out on the ground that the remaining parts were unintelligible: cf Trade Practices Commission v Australian Iron & Steel Pty Ltd (1990) 22 FCR 305 at 323. 11 Paragraph 2 of the orders of 21 October 2021 granted the applicant leave to re-plead those parts of the statement of claim that had been struck out in blue in Annexure A. However, the applicant was not under any obligation to re-plead those parts of his statement of claim. 12 Between 8 and 10 November 2021 email messages were exchanged between the applicant and the respondent's solicitors. The substance of the communications was to the effect that the respondent conveyed to the applicant that if the applicant were not to re-plead the parts of the statement of claim he was permitted to re-plead within 30 days, the respondent would submit to the Court that the applicant should not be given any further opportunity to plead those parts of his statement of claim and any application to extend the time within which the applicant had to re-plead would be opposed. 13 In accordance with the orders of 21 October 2021 and by operation of r 1.61 of the Rules, the applicant was to file any further amended statement of claim by 22 November 2021. He did not do so. However, the applicant sent an email to the Court and the respondent's solicitors and dated 21 November 2021. In that email, the applicant indicated that he was not going to file a further amended statement of claim and amongst other things, the applicant said: … i have no more confidence and respect in Australian Justice system i want the matter transferred outside the country where i can get Justice and fair trial. I am not going to submit any Amended SOC … I am not going to appeal … I swear i will start hunger strike in a venue outside Australia if this matter is not moved outside Australian … Judiciary. … 14 The email also contains discourteous and frivolous assertions of racism that have not been reproduced. Taken as a whole, the email conveys emphatic disagreement with the orders of 21 October 2021 and the reasons for those orders. The assertions may also provide an explanation for the applicant's apparent desire to have his claim heard in another forum outside Australia. 15 Thereafter, neither the applicant nor the respondent applied to re-list the case management hearing for orders requiring the respondent to file a defence to the remaining parts of the statement of claim. Instead, on 28 January 2021, the respondent made the interlocutory application to dismiss the proceedings pursuant to r 5.23(1)(b)(i) of the Rules. 16 After the respondent made its application to dismiss the proceedings, the applicant sent an email to the Court and the respondent's solicitors dated 28 January 2021. In that email the applicant asserted that he had made a complaint to the 'chief justice of the federal court and advocate general of Australia' in respect of the orders of 21 October 2021 and reasons for decision. He said that he wanted the respondent's application to be heard after he had received a response from the 'Chief justice and advocate general'. That email also contained discourteous and frivolous assertions of racism and bias that have not been reproduced. 17 On 8 April 2022, the matter was listed for a case management hearing. The applicant did not attend. In his absence, orders were made to list the respondent's interlocutory application for hearing on 22 June 2022 and for the parties to file written submissions and affidavit evidence. At the applicant's request, the matter was re-listed for a further case management hearing on 8 June 2022. On 8 June 2022, the applicant attended the case management hearing and orders were made to vacate the hearing listed on 22 June 2022 and re-list it on 21 July 2022. An order was also made to provide for the applicant to have additional time to file and serve written submissions and affidavit evidence. The order required these documents to be filed and served by 7 July 2022. On 7 July 2022, the applicant filed an affidavit and written submissions. 18 On 21 July 2022, the interlocutory application to dismiss the proceedings was heard. The applicant appeared and participated in that hearing by audio link. Applicable principles 19 Rule 5.23(1)(b)(i) of the Rules provides that if an applicant is in default, a respondent may apply to the Court for an order that the proceeding be immediately dismissed for the whole or any part of relief claimed by the applicant. Rule 5.22 provides that a party is in default if the party fails to: (a) do an act required to be done, or to do an act in the time required, by the 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. 20 Section 37P of the FCA Act also provides, in effect, that the Court may dismiss a proceeding in whole or in part if a party fails to comply with a direction given by the Court about the practice and procedure to be followed in relation to a proceeding or any part of the proceeding. 21 Section 37M of the FCA Act provides that the Rules and provisions made by or under the FCA Act or any other Act with respect to the practice and procedure of the Court must be interpreted and applied, and any power conferred or duty imposed by them must be exercised or carried out, in the way that best promotes the facilitation of the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. Nonetheless, the power conferred by r 5.23 of the Rules is a discretion and it is unconfined except that a party must be in default: Professional Administration Service Centres Pty Limited v Commissioner of Taxation [2012] FCAFC 180; (2012) 295 ALR 52 at [35]. That is, a finding that a party is in default is a precondition to the exercise of the power under r 5.23. 22 Further, the power must be exercised and the Rules administered sensibly and with an appreciation that some defaults are unavoidable and unpredictable, even by the most conscientious parties and their lawyers, and having regard to the serious consequences of summarily dismissing proceedings: Geneva Laboratories Ltd v Prestige Premium Deals Pty Ltd (No 4) [2016] FCA 867; (2016) 120 IPR 133 at [54]-[55]; Professional Administration Service Centres at [37]-[38]; Lenijamar Pty Ltd v AGC (Advances) Limited (1990) 27 FCR 388 at 395-396 23 In general, there are two circumstances in which exercise of the power will be warranted: (a) where there is a history of non-compliance indicating an inability or an unwillingness to cooperate with the Court and the other party in having the matter ready for trial within an acceptable period; and (b) where there is a significant continuing default giving rise to undue prejudice and expense to the other party. Although the history of the matter will always be relevant, it is more likely to be decisive in the first of those two situations. Even though the most recent non-compliance may be minor, the cumulative effect of an applicant's defaults may be such as to satisfy the Court that the applicant is either subjectively unwilling to cooperate or, for some reason, is unable to do so. Such a conclusion would not readily be reached; but, where it is, fairness to the respondent would normally require the summary dismissal of the proceedings. In the second circumstance, the continuation of non-compliance is the essence of the situation. If, when the Court looks at the matter, the direction has already been complied with, the defaulting applicant may be ordered to pay any wasted costs; but it would be difficult to justify the dismissal of proceedings solely because of that default: Professional Administration Service Centres at [39]-[41]; and Lenijamar at 396-397. Disposition 24 The respondent submitted that the applicant was 'in default' for failing to comply with the orders of 21 October 2021 in that a further amended statement of claim was not filed within 30 days of those orders. It will be apparent from the description of the orders made on 21 October 2021 and the effect of those orders set out earlier in these reasons, that the applicant was not in default of the 21 October 2021 orders by not filing a further amended statement of claim. 25 The result of the applicant not availing himself of the liberty granted to him is that he is presently only permitted to advance the causes of action disclosed in the parts of the amended statement of claim that have not been struck out. The respondent is able to file a defence in which it pleads to those parts of the statement of claim that remain intact. Thus, the next interlocutory step in the proceedings is for the respondent to file and serve a defence. Such delay, as there was between 21 November 2021 and 28 January 2022, cannot reasonably be attributed to non-compliance or inaction on the part of the applicant. 26 Nonetheless, the respondent also supported its application on the ground that, in effect, in his communications with the Court and the respondent's solicitors referred to earlier in these reasons, the applicant evinced an intention not to prosecute the proceedings. Further, there had been significant periods of delay in the applicant's prosecution of the proceedings. The respondent submitted that the applicant's express intention and past delays comprised a failure to prosecute the proceedings with due diligence and a default within the meaning of r 5.22(d) of the Rules. 27 The procedural history set out earlier in these reasons does not reveal any real delay on the part of the applicant in the prosecution of the proceedings. At least, no delay that is outside the boundaries of normal delay. The applicant largely complied with orders of the Court up to 28 January 2022. The respondent has not identified any specific non-compliance in that period or continuing default on the part of the applicant. 28 After the application was made on 28 January 2022, the applicant failed to appear at a case management hearing on 8 April 2022. He has not provided an explanation on affidavit for the failure to attend that hearing. However, he provided an informal explanation to the effect that he had contracted COVID-19 and had been unwell, had not monitored his emails and had suffered from continuing side-effects. On that basis, and with the respondent's agreement, on 8 June 2022, the Court varied the orders made on 8 April 2022. Thereafter, the applicant met the timing requirements and complied with the orders and appeared, by audio link, on 21 July 2022. 29 Other than a relatively minor failure to attend a case management hearing on 8 April 2022, as of the hearing on 21 July 2022, the applicant was not 'in default' and he was not continuing to be 'in default' as of the time of the hearing. Further, during the course of that hearing and in response to questions from the Court, the applicant ultimately made a submission to the effect 'I want to go ahead with this case. And it's up to you, sir, whether he – whether to give me justice, or you want to terminate this matter in favour of UGL.' 30 There was a degree of ambiguity in the applicant's submissions regarding his intention to prosecute his claims. The effect of those submissions was that he submitted that the remaining claims that he is permitted to prosecute are 'a dead end for [him]', that '[he] won't win this case with whatever [he] has left' and that he 'lost the case'. However, the applicant also made a submission to the effect that he wanted 'some time so that [he] can put other things'. 31 Overall, I am not satisfied that the statements of the applicant during the hearing on 21 July 2022 and in his emails to the Court of 21 November 2021 and 28 January 2022 together with his conduct before and after 21 October 2021 demonstrate an intention to abandon the proceedings or an inability or an unwillingness to cooperate with the Court and the respondent in having the matter ready for trial within an acceptable period. 32 It can be inferred from the correspondence referred to earlier in these reasons and the applicant's submissions on 21 July 2022 that he intended to discontinue the proceedings and pursue his claims in another forum or, at least, that he may be contemplating discontinuing the proceedings. However, the applicant has not taken steps to discontinue or withdraw his claims in the proceedings. Otherwise, his conduct is not consistent with a failure to prosecute the proceedings. 33 On the facts of this case, the power to summarily dismiss the proceedings under r 5.23 has not been enlivened because the applicant is not in default. In any event, even if I were satisfied that the power had been enlivened, I would not exercise the discretion to dismiss the proceedings for the following reasons. 34 Considering the applicant's conduct as a whole, including the steps taken, his statements in correspondence to the Court and his failure to appear on 8 April 2022, I am not satisfied that there is an indication of an inability or an unwillingness on the part of the applicant to cooperate with the Court and the respondent in having the matter ready for trial within an acceptable period. The applicant has made a submission to the effect that he wishes to proceed with the proceedings. It is not evident that there has been any real delay in the prosecution of the proceedings for which the applicant could reasonably be considered responsible. For example, periods of delay have resulted from the respondent's interlocutory applications. Further, it is not evident that any delay (for whatever reason) has caused any real prejudice to the respondent. 35 For the above reasons the respondent's interlocutory application is dismissed. Decision not to re-list the hearing of the interlocutory application 36 After the hearing on 21 July 2022, the applicant requested that the hearing be re-listed because he had not been able to hear all the proceedings through his audio link. During the course of the proceedings, the applicant had indicated, at one point, that there was a break in the audio he was receiving. The hearing continued and the applicant was requested to raise with the Court if he had any further difficulty hearing the proceedings. Otherwise, the applicant did not indicate that he was unable to participate properly or adequately during the hearing. 37 While I accept that the applicant may have had some difficulties hearing and following the respondent's submissions through the audio link, I do not consider these difficulties deprived the applicant of a fair or reasonable opportunity to participate in and make submissions at the hearing. The respondent's oral submissions were largely in accordance with its written submissions. The applicant had an opportunity to respond to those submissions in writing. He also responded to them orally. For these reasons, I declined the applicant's request to re-list the matter for further hearing. In any event, given that the application is dismissed, the applicant has not been prejudiced by any inability to make further submissions on the application. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Feutrill. Associate: Dated: 14 September 2022