Obel v Central Desert Regional Council (No 3) [2023] FCA 544

Federal Court of Australia

Obel v Central Desert Regional Council (No 3) [2023] FCA 544 Appeal from: Application for leave to appeal: Obel v Central Desert Regional Council (No 2) [2023] FCA 152

File number(s): NTD 9 of 2023

Judgment of: O'CALLAGHAN J

Date of judgment: 26 May 2023

Catchwords: PRACTICE AND PROCEDURE – application for leave to appeal from interlocutory orders of a single judge – where proceeding below subsequently dismissed – where no utility in granting leave – application dismissed

Legislation: Federal Court of Australia Act 1976 (Cth) s 24(1A)

Cases cited: Obel v Central Desert Regional Council (No 2) [2023] FCA 152

Division: Fair Work Division

Registry: Northern Territory

National Practice Area: Employment and Industrial Relations

Number of paragraphs: 20

Date of last submission/s: 25 May 2023

Date of hearing: Determined on the papers

Counsel for the Applicant: The applicant was self-represented

Counsel for the Respondent: Ms K Stewart

Solicitor for the Respondent: Ruth Morley Legal Services

ORDERS NTD 9 of 2023

BETWEEN: DENNIS OBEL Applicant

AND: CENTRAL DESERT REGIONAL COUNCIL Respondent

order made by: O'CALLAGHAN J DATE OF ORDER: 26 MAY 2023

THE COURT ORDERS THAT:

1. The application for leave to appeal is dismissed. 2. The applicant pay the respondent's costs of the application, to be agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

O'CALLAGHAN J 1 This is an application by Mr Dennis Obel for leave to appeal from an order of a judge of this court. 2 On 3 January 2023, the applicant filed an interlocutory application to "amend the originating application and further amended statement of claim". 3 On 16 February 2023, the primary judge made the following order (among others): 2. The applicant's interlocutory application lodged on 20 December 2022 and accepted for filing on 3 January 2023 is dismissed. 4 On 28 February 2023, her Honour delivered reasons for judgment. See Obel v Central Desert Regional Council (No 2) [2023] FCA 152. 5 Her Honour's reasons for dismissing the interlocutory application were as follows: Mr Obel's amendment application 13 Following the dismissal of the adjournment application, Mr Obel was afforded the opportunity to make submissions in support of his interlocutory application lodged on 20 December 2022. He did not do so. The absence of submissions in support of that application was a sufficient reason to dismiss it. 14 In addition, I was not satisfied that Mr Obel should be excused from the requirement to mark up the proposed amendments in the way prescribed by r 8.23 of the Federal Court Rules 2011 (Cth) so as to make it plain which parts of his claim founded in contract were persisted with or expanded. The Council had requested that he mark up the amendments in that way but he had not done so, nor had he complied with an order that he do so in advance of the hearing. That, too, was a sufficient basis to dismiss the application. 15 In addition, Mr Obel's proposed amendments included at least one plea that was bad in law as identified earlier in these reasons. Not only did that part of the pleading introduce a claim that the Court did not presently have jurisdiction to determine, it did not contain alleged facts sufficient to address each essential element of the contravention alleged. 6 The applicant needs leave to appeal the order dismissing his interlocutory application. See s 24(1A) of the Federal Court of Australia Act 1976 (Cth). 7 On 2 March 2023, the applicant filed an application for leave to appeal, a draft notice of appeal, and a supporting affidavit. 8 On 27 April 2023, the application for leave to appeal was allocated to my docket. 9 On the same day, I directed my Associate to send the following email to the parties (formal parts omitted): This matter has been allocated to the docket of Justice O'Callaghan. Justice O'Callaghan intends to determine the application on the papers. His Honour directs that the appellant file and serve written submissions of no more than five pages in support of his application, by no later than Friday 5 May 2023. His Honour also directs that, upon receipt, the respondent file and serve responsive written submissions of no more than five pages, by no later than Friday 12 May 2023. 10 On 2 May 2023, the applicant sent the following email to my Chambers (formal parts omitted; errors in original): I have received your email and directions from Justice O'Callaghan to file written submissions by 5 May 2023. I also note the Respondent has been included in communications in relation to the Appeal. I say as follows: 1. I object to the Respondent's participation in the Appeal process and ask that she is excluded: - I served the Respondent with Appeal papers on 23 March 2023. - The Respondent has not filed an address for service. - The Respondent has not filed required response materials within the 14 day statutory period. - The Respondent has not sought leave to participate in the process. - The Respondent has not written me or Court to explain why it has failed to comply with Court rules. - The Respondent is represented by two highly experienced lawyers and understand operations of Court and adherence to timelines set by Rules. - Accordingly I believe the Respondent is not interested in participating in the Appeal process and she should be excluded. 2. I seek adjournment of direction orders made by Court until 12 May 2023 for the following reasons: - I work remote and most cases I do not have internet access and printing services. - Yesterday (1 May 2023) was a public holiday and tomorrow 3 May 2023 I have a medical appointment with a medical specialist. It is hard to obtain an appointment and I cannot miss it. - I had planned the rest of my week until Friday 5 May 2023. - I am self-represented and need sufficient time to research and prepare written submissions. I appreciate your kind consideration. 11 On the same day, I granted the applicant's request for an extension of time to file and serve written submissions. The dates set out at paragraph [9] above were subsequently altered to 12 May 2023 and 25 May 2023, respectively. 12 On 28 April 2023, the primary judge held a case management hearing. I have reviewed the transcript of that hearing. The applicant did not appear. Despite a number of attempts by the court to make contact with the applicant, that proved impossible. 13 For reasons that are recorded in the transcript of that hearing, her Honour made the following order (among others): 1. Pursuant to r 5.23 of the Federal Court Rules 2011 (Cth), the originating application is dismissed. 14 On 3 May 2023, the applicant sent via email an "Amended Application for leave to appeal" and an "Amended Draft Notice of Appeal" to my Chambers. The amendments did not address, or mention, her Honour's 28 April 2023 order dismissing the originating application. 15 The applicant has not specified from which orders he seeks to appeal. However, the grounds of appeal set out in the "Amended Draft Notice of Appeal" only concern his proposed amended pleadings. I take it, therefore, that the applicant seeks leave to appeal from order 2 of the primary judge's 16 February 2023 orders. 16 On 16 May 2023, the applicant (who is self-represented, but apparently has had some legal training) filed written submissions. The applicant is self-represented. Those submissions did not address, or mention, her Honour's 28 April 2023 order dismissing the originating application. 17 On 25 May 2023, the respondent filed written submissions (prepared by counsel). The respondent submitted: Reasons why application for leave to appeal should be refused 15. As a consequence of the Court's order on 28 April 2023 to dismiss the originating application, there is no utility in granting the Applicant leave to appeal against order 2 of the Court's orders of 16 February 2023. 18 That submission must be accepted. 19 In light of the primary judge's 28 April 2023 order, there is no utility in granting leave to appeal against her Honour's 16 February 2023 order. 20 I will accordingly dismiss the applicant's application for leave to appeal. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Callaghan.