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

[1992] FCA 672

JUDGMENT No. .-!?.?U

FEDERAL COURT OF AUSTRALIA	)	No. QG 118 of 1991
QUEENSLAND DISTRICT	)
GENERAL DIVISION	)

BETWEEN:

FICHAEL RUSSELL MARK BROADBENT

FIRST APPLICANT

m:

FONTCHEL PTY. LTD.

SECOND APPLICANT

CIVIL AVIATION AUTHORITY

RESPONDENT

MINUTES OF ORDERS

\ - /S'

.- e~ KAKING ORDER: Drummond J

DATE OF ORDER:	3 September, 1992
WHERE MADE:	Brisbane
THE COURT ORDERS THAT:

1.         The amended application for an order of review filed

24 August, 1992 is struck out.

2.         The statement of claim filed 7 August, 1992 is struck out.

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

2.         The applicants pay the respondent's costs of today's proceedings.

THE COURT DIRECTS THAT:

1.        The matter is adjourned generally to Thursday, 17 September, 1992 at 2.15 p.m..

FEDERAL COURT OF AUSTRALIA	1	NO. QG 118 of 1991
QUEENSLAND DISTRICT	)
GENERAL DIVISION	1

BETWEEN:

MICHAEL RUSSELL MARK BROADBENT

FIRST APPLICANT

MONTCHEL PTY. LTD.

SECOND APPLICANT

AND :

CIVIL AVIATION AUTHORITY

RESPONDENT

-:	Drummond J
W :	3 September, 1992

W: Brisbane

EX TEMPORE REASONS FOR JUDGMENT

The history of this matter, which is summarised in the affidavit of Mr. Scott-Mackenzie filed on 18 June, 1992,

is characterised by the applicants being in default of compliance with a number of directions given by this court in an attempt to get this litigation to a stage where it is ready for hearing. The applicants have been given a number of indulgences, notwithstanding their repeated non-compliance.

Mr. Scott-Mackenzie's affidavit contains a chronology of events leading up to the time of the last directions hearing which took place on 1 July, 1992. On that occasion I gave the applicants leave to amend their application so as to challenge not only the original decision of which complaint is made, but also a second decision in relation to the same issue. The direction given was that the amended application be delivered by Wednesday, 15 July. The importance of them being in a position to challenge both decisions in the one proceeding was canvassed on 1 July. The point of the applicants ultimately seeking and being given leave to amend to challenge the second decision was that a review of the first decision would have been, in large part, academic given that it has been substantially superseded by the second decision.

At the time the applicants were given leave to amend their application so as to challenge the second decision, the respondent indicated that it would not object to such leave being granted, notwithstanding the fact that the applicants were then out of time to challenge the second decision.

However, the applicants did not take advantage of that concession. Consistently with what has characterised their conduct of this litigation from time to time in the past, they made no attempt to amend their application, notwithstanding the very clear terms of the direction I gave on 1 July, in the presence of the applicants' solicitor and counsel, that is, they made no attempt to amend the application, which was critical to them being in a position to obtain an effective review of the decisions that concern them, until 24 August. That was notwithstanding the delivery to the applicants' solicitor's of exhibit "l", a letter sent by the respondent's solicitors dated 10 August, 1992 drawing to the applicants' solicitor's attention his clients' default in this regard.

The other direction that I gave on 1 July was that the applicants deliver a statement of claim fully particularised in relation to the challenges made to the two decisions now sought to be reviewed by the court, the direction being that the statement of claim be delivered by Wednesday, 29 July, 1992. That was the first time that a direction had been given for the delivery of a statement of claim, so slowly has the litigation progressed, in large part, as I have already said, due to the way the applicants have seen fit to conduct the litigation.

The statement of claim was delivered out of time. respondent to these further examples of non-compliance by the	It was filed on 7 August. When objection was taken by the
applicants with directions given by the court designed to try to get this litigation some day to a stage where it will be fit f o ~ hearing, I was confronted with an appearance by the applicants' town agent who informed me that it was drawn to his attention that the matter was listed for directions today only minutes before the matter came before the court. The town agent who appears for the applicants is in the difficult position of not being in receipt of instructions. This is, I think, at least the second time this situation has arisen. It is really, in my view, quite unforgivable for litigants to adopt this attitude to litigation which they have instigated and say they want the court to dispose of. It is quite unforgivable for litigants to repeatedly allow a situation to arise where directions are given, adjourned dates are fixed well in advance and nothing whatsoever is done to make any serious attempt to be in a position to deal with matters which are obviously going to be raised at those directions hearings, other than, at the very last moment, to engage a town agent who is in the situation where he really knows nothing about the issues to be canvassed and, for that reason, is unable to make any useful submissions to the court.
The circumstances are such that it is appropriate that I should strike out both the amended application and the statement of claim on a number of grounds. The first ground is that they were both filed well after the times fixed by the
directions given on 1 July for the filing of those documents. A further ground is that the representative who appears for the applicants today was engaged in circumstances
where he was deprived of any capacity to obtain proper instructions and was unable to make any useful submissions to the court, notwithstanding that today was fixed as long ago as 1 July as a review date at which the adequacy of the pleadings would be considered, and, notwithstanding the fact that it is clear from exhibit "1" that the respondent's
attitude towards non-compliance with the directions given on 1 July was made quite clear to the applicants.
The final ground upon which I make the orders is that there is no explanation of any kind put forward on behalf of the applicants for their defaults in the two respects I have mentioned.
I certify that this and the preceding four pages is a true copy of the reasons for judgment herein of the Honourable Mr. Justice Drummond.
Associate:
Date:  3 September, 1992