Broadbent, M.R.M. v Civil Aviation Authority

[1993] FCA 130

IN THE FEDERAL COURT OF AUSTRALIA	)	No. QG 118 of 1991
gUEENSLAND DISTRICT REGISTRY	1
GENERAL DIVISION	1

BETWEEN:

MICHAEL RUSSELL MARK BROADBENT

First Applicant

AND:

MONTCHEL PTY. LTD.

Second Applicant

AND :

CIVIL AVIATION AUTHORITY

i

Respondent

16 MAR 1993

MINUTES OF ORDERS FEDERAL COURT OF

PRINCIPAL REGISTRY

Drummond J
23 Februarv. 1993

Brisbane

THE COURT ORDERS THAT:

NOTE:	Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.

1. The motion is dismissed.

2. The respondent is to pay the applicants' costs of the notice of motion, including costs of the hearing of the notice of motion, to be taxed.

IN THE FEDERAL COURT OF AUSTFWLIA )	No. QG 118 of 1991
QUEENSLAND DISTRICT REGISTRY	1
GENERAL DIVISION	1

BETWEEN :

MICHAEL RUSSELL MARK BROADBENT

First Applicant

m:

MONTCHEL PTY. LTD.

Second Applicant

AND :

CIVIL AVIATION AUTHORITY

Respondent

m - : Drummond J

Date:  23 February, 1993

Place: Brisbane

EX TEUPORJ3 REASONS FOR JUDGMENT

I have before me a notice of motion brought by the

applicants in the proceedings seeking judgment in the action

action. On 6 January last, after a contested hearing, I gave	or, alternatively, directions as to the further conduct of the
a judgment in which I granted the applicants an extension of time for bringing an order of review of a decision by the respondent of 15 May, 1992. At the same time I gave directions that the applicants were to file and serve an amended application for the order of review of that decision and also an earlier decision by the respondent by 6 January;

that the applicants wcrc to file and serve their statement of claim by 8 January; and that the respondent was to file and serve its defence by 29 January.

The Deputy District Registrar disagreed with my first direction. The matter is dealt with at some little length in Mr. Dowling's first affidavit, particularly paragraphs 4 and 5. The Deputy Registrar, in effect, required the applicants, instead of filing an amended application in the present proceedings, No. QG 118 of 1991, to commence new proceedings and required them to take steps associated with the commencement of new proceedings. It was quite wrong for the Deputy Registrar to have adopted that course. He was bound to give effect to my direction. If he had any concern, the proper course for him to follow was to have referred it to me.

L

t

The matter has now been, however, rectified. Orders 1

by consent were made at the outset of proceedings today, which	,
I
included an order that the Registrar refund to the applicants	!
the $300.00 filing fee. Nothing, however, turns on the action
of the Deputy Registrar so far as the present application is	i
concerned. The defence required, as I said, to be filed by Friday, 29 January, 1993 was not filed until Thursday, 4
1.
February. The only explanation put forward is that this delay
was due to the commitments of counsel for the respondent,	i
i
being such as not to enable him to attend to settling the	i

defence prior to the time received by the solicitors for the
respondent, who were then able to file it only on 4 February.

The defence not having been received by 29 January, 1993 in accordance with the directions I gave, the applicants' solicitors took prompt action to bring the present notice of motion, filing it with supporting affidavits on 3 February, 1992. These were not served, however, until well after that because service copies of the material did not issue from the Registry until 12 February.

In the judgment I gave on 6 January, 1993 I was highly critical of the delays and non-compliance with numerous directions and in respect of other inefficiencies on the applicants' side of the record in the conduct of the

litigation to date. I said at pages 21 and 22 of my judgment:

"The litigation which, as I have said, includes the making by the applicants of serious allegations of misconduct against officers of the respondent, has proceeded at a slow pace and in a disorderly fashion. This is due in large part to the way the

the matter. Probably as well a reflection of the

applicants and their legal advisers have conducted

latter's attitude to the situation that has now been reached is contained in the submission by applicants' counsel that had the respondent not complained on 3 September, 1992 about the applicants' belated compliance with the directions of 1 July, 1992, the matter would probably have been set down for trial on that day. This seems to me to reflect an attitude on the applicants' side that they are free to attend to interlocutory steps when it is convenient for them to do so, irrespective of when they are required by directions of the court to take those steps, and that so long as they eventually attend to them the respondent has no legitimate cause for complaint. This approach is quite inconsistent with the case management system contained in 0. 10 of the Federal Court Rules."

It is understandable that the applicants' legal representatives would feel aggrieved at the default on the part of the respondent in failing to comply with the directions for delivery for filing and service of its defence by 29 January, particularly against a background of that judgment. I find it very difficult to understand how the respondent's legal advisers against this background, and in circumstances in which no difficulty was suggested on 6 January, 1993 when I fixed 29 January for delivery of the defence, could allow the present situation to arise.

The question remains, however, what should now be done in relation to the applicants' notice of motion by which they seek, as I say, judgment in the action or, alternatively, directions for a further conduct of the proceedings.

On 4 February the Civil Aviation Authority wrote to the solicitors for the applicants saying:

"Our client's defence will be filed and served

today.

Our client does not require an extension of the time to file and serve affidavits of all ... witnesses on whose evidence it intends to rely at the trial."

On 6 January, in addition to giving directions for
the filing of pleadings by the parties, I also gave directions

for the filing and serving of witness affidavits designed to ensure that the matter would be, in effect, ready to be set down for hearing by 12 March. On the same day, 4 February, the solicitors for the applicants replied saying:

"Only the court can extend the time for delivery of your client's defence or for the filing and service of our client's Affidavits of evidence. Our understanding of the Federal Court Rules leads us to conclude that without an order of the court your client cannot now defend the action."

This attitude was elaborated in argument by counsel for the applicants, who submitted that the applicant cannot consent to an extension of time; that to do so would usurp the court's case management role. However, that is not completely accurate insofar as 0. 35, r. 10 of the rules of this court provides for the filing of a written consent order signed by the parties which would dispense with the necessity for an appearance before the court. Rule lO(2) provides or makes it clear that the power of the parties to deal with matters by consent is subject to their proposed consent order being

considered by a judge and in effect passed as acceptable by a judge.

To return to what took place between the parties. On 17 February, after some intervening correspondence, the solicitors for the respondent wrote to say:

"In all the circumstances our client is prepared to consent to the following orders on the notice of motion:

(a)	the time for filing and service of our client 'S defence be extended to 4 February;
(b)	our client pay the applicants' costs of and incidental to the notice of motion up to and including 4 February; and

(C) otherwise the notice of motion be dismissed.

To that end we enclose with this letter a consent order under order 35 rule 8 (obviously an error for rule 10) of the Federal Court Rules. Please sign the consent order where indicated and return it to

us. "

I have already indicated the explanation for the applicants' refusal to agree to that proposal, but I note that this letter of 17 February was the first time that the Civil Aviation Authority made any offer to meet any of the applicants' costs of the motion.

In my view, non-compliance with directions of the kind here in question gives the court jurisdiction to grant the relief sought by the applicants. To file a document after the time limited by a direction does not mean the party is not in default in complying with the direction. However, I take

very much the fault of the applicants. Apart from the present

into account the following factors. The delay in getting this litigation to trial is

matter, the respondent is only guilty of delay in one significant respect, namely its failure until 22 February,

1993 to file its list of documents required by my direction to

be filed by 17 January, 1993. That was a significant default insofar as it inevitably prevented the applicants from complying with other directions I gave requiring them to give

particulars of allegations in their application, which they
could only give after discovery was complete.

Next I take into account that the delay now in question is short. The defence was delivered on 4 February, albeit irregularly. This delay will not impede the timetable I set on 6 January, 1993 for getting the matter ready for hearing. No prejudice has been suggested as flowing to the applicants from this delay on the part of the respondent. I have already mentioned that on 17 February last the respondent offered to meet the costs of the applicants of the notice of motion up to and including 4 February.

I have already referred to the gravity of the allegations made by the applicants, particularly in challenging the first decision of the respondent, in my judgment of 6 January, 1993. For these various reasons I do not think it would be just to give a default judgment to the applicants in these circumstances. What I propose to do is

grant the respondent an extension of time to 4 February last to file its defence.

As to the costs of the notice of motion, it is clear that the applicants should have the costs of the notice of motion up to the offer of 17 February, 1993. It seems to me, however, that because the costs were offered on that date only up to 4 February, the applicants have had to come to court to get those costs, that is, the costs up to 17 February.

I think, although I will give the parties an opportunity to make submissions, that for this reason the respondent should be required to pay the applicants' costs of the notice of motion, that is, all their costs of the notice of motion to be taxed, including their costs of today's hearing on the notice of motion.

I certify that this and the

preceding seven pages is a
true copy of the reasons
for judgment herein of the
Honourable Mr. Justice Drummond.

Associate: ~dL/cl----
Date :	23 February, 1993