Armit v Jeminex Limited (No 4)
[2013] FCA 889
FEDERAL COURT OF AUSTRALIA
Armit v Jeminex Limited (No 4) [2013] FCA 889
Citation: Armit v Jeminex Limited (No 4) [2013] FCA 889 Parties: MADONNA ANNE ARMIT v JEMINEX LIMITED ACN 113 973 087 File number: NSD 1744 of 2010 Judge: ROBERTSON J Date of judgment: 29 August 2013 Catchwords: PRACTICE AND PROCEDURE – applicant absent when proceeding called on for trial – whether application should be dismissed Legislation: Federal Court Rules 2011 (Cth) r 30.21(1)(a) Cases cited: Forster v Harvey (2006) NSWSC 1112 Date of hearing: 29 August 2013 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 18 Counsel for the Applicant: The applicant did not appear Counsel for the Respondent: Mr F Corsaro SC with Ms N Bearup Solicitor for the Respondent: Sachs Gerace Lawyers
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1744 of 2010
BETWEEN: MADONNA ANNE ARMIT
ApplicantAND: JEMINEX LIMITED ACN 113 973 087
Respondent
JUDGE:
ROBERTSON J
DATE OF ORDER:
29 AUGUST 2013
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The originating application filed on 14 December 2010 and amended on 3 April 2013 is dismissed.
2.The applicant pay the respondent’s costs of the proceedings, including any reserved costs.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1744 of 2010
BETWEEN: MADONNA ANNE ARMIT
ApplicantAND: JEMINEX LIMITED ACN 113 973 087
Respondent
JUDGE:
ROBERTSON J
DATE:
29 AUGUST 2013
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The proceedings with which I am dealing were set down on 6 March 2013 for final hearing on Monday 26 August 2013 for 12 days.
There had been an earlier history of the matter being set down for final hearing. It is not necessary to go into that history for present purposes. In summary, it amounted to the applicant having been afforded procedural leniency, to put it at its lowest, she being latterly, but not originally, a litigant in person.
Before coming to the events of this week, I should also mention that on 19 August 2013, in light of non-compliance by the applicant with certain orders made on 26 July 2013 for the final preparation of the matter for trial, the matter was relisted and the applicant then applied to vacate the hearing dates. That application was refused by me on 19 August 2013.
The matter then proceeded, as I understand it, with a view to the trial commencing on this Monday, 26 August 2013.
When the matter was called on for hearing on Monday 26 August 2013 at 10.15 am, there was no appearance by or on behalf of the applicant. Orders were then made in light of certain informal email communications with my chambers by Ms Armit’s daughter on the Saturday evening, 24 August 2013 and the Sunday evening, 25 August 2013. Orders were made on the morning of 26 August 2013 for any formal application to be made by Ms Armit the next day, Tuesday 27 August 2013 at 9.30 am.
When the matter was again called on Tuesday 27 August 2013 at 9.30 am, there was no appearance by or on behalf of the applicant. No application for an adjournment was therefore made, although again there was an email with some annexed material forwarded to my chambers. There was no formal application.
There was a medical certificate forwarded which has a high level of generality to it, such that without the author of the medical certificate being present, it would have provided a somewhat thin basis on which to postpone the hearing, even if a formal application had been made.
With a view then to bringing the issue to a head, further more explicit directions were made by me on Tuesday 27 August 2013, and they were to the effect that any application to adjourn the final hearing was to be listed on 29 August 2013 at 4.00 pm. That time was fixed so that other directions could be complied with. That is, any medical evidence on which the applicant intended to rely in support of the application to adjourn was required to be by way of affidavit evidence from a medical practitioner, and any affidavits were required to be served no later than 4.00 pm on 28 August 2013, and the deponent or deponents of any affidavits were directed to be present in court to be available for cross-examination on their evidence.
It seemed to me that those orders should be made in order that the Court was in a position to adjudge any formal application to adjourn the final hearing, and to provide fairness to the respondent so that the respondent could test that evidence.
No affidavit was filed, no formal application was filed, and shortly before the matter came back to court at 4.00 pm, my associate received an email from the applicant which I have marked as an exhibit. That email does not make a formal application. It does not constitute medical evidence. It does say that the applicant considers that with a few days more rest she would be well enough to appear later next week.
The respondent applies for an order in these circumstances that the application be dismissed with costs, including reserved costs.
The applicant was absent when the proceeding was called on for trial on Monday 26 August 2013, was absent when the proceeding was called on Tuesday 27 August 2013, and is absent at the time fixed this afternoon for the making and hearing of any formal application to postpone the final hearing and/or to vacate the trial dates, which, as I have said, were for 12 days starting on 26 August 2013.
The absent party being the applicant, the present situation falls within r 30.21, subrule (1), paragraph (a) of the Federal Court Rules 2011 (Cth).
In the circumstances, there being adequate opportunity – or more than adequate opportunity – for the applicant to arrange to be represented and to arrange to have medical evidence on which the Court can act and which the respondent can test, it seems to me that in the circumstances to which I have referred, including the more recent events and the length of time the matter has been listed for hearing, that the proper course is to grant the order the respondent seeks, that is, that the application be dismissed with costs, including reserved costs.
Senior Counsel for the respondent drew my attention to Forster v Harvey (2006) NSWSC 1112, an unreported decision of Young CJ in Eq of the Supreme Court of New South Wales. Of course, in matters of practice and procedure, there can in a sense be no precedent from earlier cases apart from the principles that such earlier cases may illustrate, but there is a similarity between the facts to which his Honour refers in paragraph 8 of the judgment in Forster v Harvey and the facts here.
The Court had made it clear that if there was to be an application for an adjournment, it had to be formal and supported by affidavit evidence, yet the relevant party did not attend either with or without a medical certificate, and thus the respondent has not had an opportunity to test that material, and the court has not had the opportunity to be persuaded by the cogency of any such material.
The only material falling within this category is a very general statement of the applicant’s ill-health over a period which appears to have included a period during which the matter was being prepared for hearing – that is, from 22 August 2013. It is true to say that the certificate, so far as it is before me, talks about appearing in court in that period, but there are, at the very least, matters to be explored and I do not treat that as constituting evidence that would persuade me to refuse the respondent’s application.
For these reasons, I grant the application and the order that I make is that the substantive application in the proceedings be dismissed with costs.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson. Associate:
Dated: 2 September 2013
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