AM v Commonwealth of Australia & Ors

[2007] HCATrans 195

[2007] HCATrans 195

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A209 of 2003

B e t w e e n -

AM

Plaintiff

and

COMMONWEALTH OF AUSTRALIA

First Defendant

LEGAL SERVICES COMMISSION

Second Defendant

JR

Third Defendant

CHARLOTTE KELLY

Fourth Defendant

Summons for Directions

CRENNAN J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 4 MAY 2007, AT 11.29 AM

Copyright in the High Court of Australia

__________________

MR C.D. BLEBY:   If the Court pleases, I appear for the first and fourth defendants.  (instructed by Australian Government Solicitor)

MR D.J. MACKINTOSH:   If the Court pleases, I appear for the second defendant.  (instructed by Crown Solicitor for the State of South Australia)

MS J.A. ELMES:   If the Court pleases, I appear for the third defendant.  (instructed by Graeme D. Hemsley)

HER HONOUR:   Thank you.  Is there any appearance for the applicant?

MR BLEBY:   There does not appear to be, your Honour.

HER HONOUR:   Thank you, Mr Bleby.  Yes.

MR BLEBY:   If the Court pleases, this matter was last before this Court before his Honour Justice Callinan on 12 August 2003.  His Honour on that occasion made certain orders in respect of two applications that had been brought by the first and second defendants to have the matter remitted to the Federal Court.  Written submissions were filed, but not by the plaintiff, and since then the matter has not been prosecuted by the plaintiff in any way some three and a half years since those orders were made.

I should add, if your Honour is looking at the Court file, I was present at that last hearing.  However, on that occasion I acted for the second defendant and I now act for the first and fourth defendants, so just to make sure there is no confusion on that aspect of what was before his Honour Justice Callinan.

On 6 October 2006 the first and fourth defendants filed a summons to have the matter dismissed for want of prosecution, in the alternative, renewing the application to have the matter remitted to the Federal Court and a further alternative order sought on that summons which relates to having the claim against the fourth defendant dismissed for failing to disclose the cause of action.

That application, I should indicate, is rather involved given the length of the claims and there may be some difficulty with proceeding on that basis today.  However, in the first instance, your Honour, we are in the position where there is no appearance by the plaintiff.  An affidavit of service of the first and fourth defendants’ documents has been filed.  It is an affidavit of Rodger James Prince.  That is sworn 1 May 2007.  It is a bulky document, your Honour.

HER HONOUR:   Yes, I see that.  It has a number of exhibits.

MR BLEBY:   It does.

HER HONOUR:   That was sworn on 1 May 2007, yes.

MR BLEBY:   Yes, your Honour.  Your Honour will see from that affidavit of service that there were numerous attempts to serve the plaintiff personally with both the summons and attendant documents and that subsequently Mr Prince served Mr Mackie by ordinary post at his last known address of service.  Notwithstanding that, Mr Mackie has not attended today.  I understand that there has been some contact with the Registry by the plaintiff.  I only know that from what has been relayed to me with conversations with my instructors and the Registry so I cannot assist further with that.

HER HONOUR:   Yes.  Just give me a moment.

MR BLEBY:   If the Court pleases.

HER HONOUR:   Yes.  I will just read into the record the communication with the Registry:

Dear Ms. Weybury,

I refer to your letter dated April 17, 2007, advising that this matter has been listed for a directions hearing on May 4.

I have not been served with a summons.  Could you please tell me at whose instance the matter was listed?

Also, I don’t have any (remotely suitable) clothes.  I’ll see if I can hire a suit (mine doesn’t fit me), but if not, can I just file written submissions?  I assume it’ll come down to a decision whether to remit the action or dismiss it entirely.

I should also indicate for the record that no written submissions have been filed.

MR BLEBY:   If the Court pleases.  Your Honour, on that basis and on the further two bases of the non‑compliance with Justice Callinan’s orders of 12 August and the subsequent three and a half year failure to take any steps, that last comment is qualified by the fact that there have been two notices of intention to proceed filed in 2004 and 2006 respectively, although a month after those notices were filed, of course no action has been taken.  In light of what your Honour has read onto the transcript and Mr Prince’s affidavit of service, it is my application to have this matter dismissed forthwith for want of prosecution.

HER HONOUR:   Yes, thank you.  I will hear from other counsel, Mr Mackintosh and Ms Elmes.  Yes, Mr Mackintosh.

MR MACKINTOSH:   Thank you, your Honour.  We would support the application that has been made by the first and the fourth defendants.

HER HONOUR:   Yes.

MR MACKINTOSH:   There is no evidence whatsoever before the Court put by the plaintiff to account for this very lengthy delay of three and a half years, non‑compliance of an order made by Justice Callinan, and the cases clearly show that where a default has been intentional and contumelious such as disobedience to a peremptory order of the Court, then that is a basis which can amount to abuse of process and can lead to a proceeding being dismissed for want of prosecution.  In our respectful submission, it would be appropriate for this proceeding to be dismissed not only as against the first and the fourth defendant but also as against the second defendants.  The same principles would apply exactly.

HER HONOUR:   Yes, very well.  Thank you, Mr Macintosh.  I will also hear from Ms Elmes.

MS ELMES:   Thank you.  The third defendant’s position is obviously the same as the first, fourth and second defendants.  We also seek that the applicant’s application be dismissed for want of prosecution.

HER HONOUR:   Yes, thank you.

MS ELMES:   Thank you.

HER HONOUR:   In 2003 the plaintiffs in this matter commenced proceedings against determinations made in the Family Court concerning the custody and support payments in relation to his child.

The third defendant is the mother of the child.  The second defendant is the Legal Services Commission, a body incorporated in South Australia which receives legal aid funds from the Commonwealth and apparently undertakes legal aid work.

The defendant sought in 2003 to have the matter remitted to the Federal Court and a hearing took place before Justice Callinan on 12 August 2003.  At that hearing his Honour ordered that the parties file written submissions on certain jurisdictional issues within three weeks.  This order was complied with by the defendants.  However, the plaintiff filed no submissions.

The first and fourth defendants filed an amended summons dated 6 October 2006 seeking to dismiss the action for want of prosecution pursuant to rule 6.01.1 and 27.09.4.  Rule 27.09.4 provides that:

Where a proceeding generally, or any claim in a proceeding:

(a)does not disclose a cause of action;

(b)is scandalous, frivolous or vexatious; or

(c)is an abuse of the process of the Court;

the Court or a Justice may stay the proceeding or a claim made in the proceeding or may give judgment in the proceeding –

The first and fourth defendants rely on an affidavit of service sworn by Rodger James Prince on 1 May 2007 which deposes to numerous attempts to serve the plaintiff personally with the summons and the documents which was finally forwarded to the plaintiff by ordinary post on 19 April 2007.  The plaintiff has given an indication to the Court, which was read by me onto the transcript earlier, indicating that the plaintiff was aware of the proceeding today.

There have been no submissions filed by the plaintiff for the purposes of the proceeding today and no appearance by the plaintiff today.  That application of the first and fourth defendants to have the matter dismissed for want of prosecution by the plaintiff for some 3.5 years has been supported by counsel appearing on behalf of the second and third defendants.

In all of the circumstances it appears to me appropriate to accede to the application made on behalf of the first and fourth defendants and supported by the second and third defendants.  I now order that this proceeding be dismissed with costs.

Nothing further?

MR MACKINTOSH:   One little matter, if the Court pleases.  Originally, the fourth defendant filed a submitting appearance, then on 3 September 2003 filed an ordinary appearance.  So far as is necessary, I would seek leave to withdraw the submitting appearance.

HER HONOUR:   Insofar as necessary I grant that leave
.

MR MACKINTOSH:   If the Court pleases.

HER HONOUR:   Thank you.

AT 11.29 AM THE MATTER WAS CONCLUDED