Cockburn v Canberra Institute of Technology (No 3)
[2023] FedCFamC2G 761
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Cockburn v Canberra Institute of Technology (No 3) [2023] FedCFamC2G 761
File number(s): CAG 58 of 2015 Judgment of: JUDGE WJ NEVILLE Date of judgment: 26 July 2023 Date of publication of reasons: 22 August 2023 Catchwords: PRACTICE & PROCEDURE – Application by Respondent to dismiss 8 year old proceeding for ongoing default and failure to prosecute action by Applicant – previous self-executing Orders made by this Court (not disturbed on appeal) and in the Federal Court of Australia – procedural fairness considerations to enable Applicant to file response material to the Application in a Proceeding to dismiss the matter – procedural Orders made. Legislation: Fair Work Act 2009 (Cth) Cases cited: Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256
Drummond v Canberra Institute of Technology [2023] FCA 421
Tomlinson v Ramsey Food Processing Pty Ltd (2016) 256 CLR 507
UBS AG v Tyne (2018) 265 CLR 77
Walton v Gardiner (1993) 177 CLR 378
Division: Division 2 General Federal Law Number of paragraphs: 29 Date of hearing: 24 July 2023 Place: Canberra Applicant: Self-represented Counsel for the Respondent: Ms A Costin Solicitor for the Respondent: ACT Government Solicitor ORDERS
CAG 58 of 2015 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MARK LEA COCKBURN
Applicant
AND: CANBERRA INSTITUTE OF TECHNOLOGY
Respondent
order made by:
JUDGE W J NEVILLE
DATE OF ORDER:
26 JULY 2023
UNTIL FURTHER ORDER, THE COURT ORDERS THAT:
1.Within 14 days, being by 9 August 2023, the Applicant is to file and serve a Response to the Respondent’s Application in a Proceeding and supporting Affidavit of no more than 5 pages in length in response to the Application in a Proceeding filed by the Respondent on 21st July 2023.
2.Within 14 days, being by 9 August 2023, the Applicant is to file and serve Written Submissions of no more than 2 pages in length in response to the Application in a Proceeding filed by the Respondent on 21st July 2023.
3.Within
147 days thereafter, being by 16 August 2023, the Respondent is to file any Submissions in Reply of no more than 2 pages in length.
AND THE COURT NOTES THAT:
A.Anything beyond the page limits prescribed in these Orders will not be read by the Court;
B.The Court has previously advised the Applicant that no further extensions of time would be granted. The Respondent has indicated that it does not agree to any further extensions of time for the filing of the Applicant’s submissions;
C.At the hearing on 24th July 2023, the Court indicated that, notwithstanding the previous requests for extensions of time, and notwithstanding there was (and remains) no formal Application for it, the Court took the Applicant’s most recent series of emails as an oral Application for a further extension of time. If he wishes to do so, the Applicant may address extensions of time in his written submissions, noting again the Court’s comments regarding the length of such submissions and what the Court will or will not read.
AND IT IS NOTED THAT these Orders have been amended pursuant to Rule 17.05(2)(g) of the Federal Circuit and Family Court of Australia (General Federal Law) Rules 2021.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE WJ NEVILLE
Introduction
The following reasons were first delivered orally on 26th July 2023. They have been revised from the transcript.
Following the most recent defaults by the Applicant in complying with Orders made by Katzmann J (by consent) on 1st June 2023, notably in relation to the filing of submissions, late on the afternoon of 21st July 2023, the Respondent filed an Application in a Proceeding (“AIP”) seeking Orders that the proceeding be dismissed pursuant to Rules 13.04(1)(a) and (e), and 13.05(1)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (“the GFL Rules”), and Order 7(a) made by Katzmann J on 1st June 2023.
The only or primary matter the Court is immediately required to determine concerns what procedural course to take to deal with the Respondent’s Application. As well, without any formal Application, the Applicant seeks a yet further extension of time for the filing of already late submissions in the substantive proceeding that involve claims under the Fair Work Act 2009 (Cth). In accordance with his long and regular practice, the Applicant’s “requests” for a further extension of time to comply with the 1st June 2023 Orders are contained, as already noted, not in any formal Application, but in a series of recent emails to the Court and the Respondent, which are also relied upon by the Respondent in its current Application. Although they are annexed to the Affidavit of Mr Quincey-O’Neill (sworn 21st July 2023) in support of the AIP, for ease of reference, copies of the Applicant’s recent emails setting out (a) his current plight, (b) reasons for not complying with filing directions of this Court last year, and by the Federal Court this year, and (c) his assurance and confidence of certain “progress made” in the preparation of his submissions, are attached to these reasons at Annexure A.
At the recent hearing on 24th July 2023, Counsel confirmed that the Respondent opposed any further extension of time being granted to the Applicant to file his [substantive] submissions.
In this regard, in view of there being no formal Application before the Court to seek any extension of time, and without making any Orders, the Court simply confirmed to the Applicant by email on 17th June 2023 that no further extension of time for filing would be granted. Notwithstanding this notification, in Court on 24th July, the Applicant continued to canvass when he could (or would be able to) file his already late submissions. There was some vacillation in the dates he proffered in this regard. The Court will take the Applicant’s three emails as an oral Application to seek a further extension of time.
The Respondent further submitted that, by virtue of (a) earlier self-executing Orders of this Court made on 6th October 2022, (b) more recently the consent Orders made by Katzmann J on 1st June 2023, and (c) having regard to the decision of Wigney J on 5th April 2023 dismissing the Applicant’s first appeal in relation to the Court’s procedural Orders of October 2022, the Court can and should simply dismiss the current proceeding because of the Applicant’s regular, most recent defaults, and (more formally) because of his (i) failure to comply with Orders of the Court (r.13.04(a)), and (ii) ongoing default in failing to prosecute the proceeding with due diligence (r.13.04(e)).
Although there was little direct reference until the Court raised it, the recent decision of Wigney J in April 2023 must be taken to be a central point of reference for the current Application. To speak generally for the moment, in that decision his Honour outlined various defaults and omissions by the Applicant since approximately October 2022 before dismissing his Application for leave to appeal this Court’s Orders of October 2022.[1] I return to his Honour’s reasons below.
[1] See Drummond v Canberra Institute of Technology [2023] FCA 421 (5th April 2023). Unless otherwise required, all references will simply be to this judgment in an abbreviated form (e.g. “CIT 23”) and relevant paragraph number.
The self-represented Applicant only received an unsealed copy of the Application in a Proceeding last Friday afternoon, and a sealed copy sometime even more recently. To state the obvious, as a matter of procedural fairness, the Applicant needs an opportunity to put on his Response to the Application and to file submissions in support of what Order(s) he seeks.
Given the significant number of judgments in this Court and in the Federal Court of Australia over the years (noted by Wigney J in CIT 23), by way of general observation, the following seeks only to give some “flavour” (perhaps best gleaned by the annexed recent emails to the Court from the Applicant), and more particularly, brief context, regarding (a) the Applicant’s implied oral Application for further extensions of time to file submissions that are already late, and (b) the procedural course to deal with the Respondent’s Application for dismissal of the proceeding on the bases of the Applicant’s ongoing default and failure to prosecute his proceeding that has been on foot since 2015.
General observations
As he has done regularly over the years, in the course of typically discursive comments and explanations on 24th July 2023 (the return date of the Respondent’s AIP for directions) regarding the non-filing of his submissions, the Applicant again gave assurances (which I accept as being well-intentioned) that he could or would provide the now late submissions (which were due on 18th July 2023) on either 4th August or perhaps 11th August.[2] As is unfortunately commonly the case, it became something of a general discussion regarding when the late submissions would likely be filed (subject to his latest assurances, preferences, school commitments, and various other personal matters), and the various other outside influences on his life that either have precluded, and/or now (in his view) no longer preclude, compliance with Orders. Of course, the discourse over many extraneous and personal matters in Court should not have occurred, especially in the face of the Court seeking to direct his attention to what the Court was asking regarding (a) his compliance with Orders and (b) matters of procedure regarding the Respondent’s recently filed AIP. General discussion that borders on bartering, interspersed with still further and/or providing so much personal information (which the Applicant regularly does, mostly by long email), is an improper way of addressing, and otherwise communicating with, any Court. Such concerns have been raised with the Applicant many times in the past, regrettably to little or no avail.
[2] The Applicant’s last email to the Court, dated 21st July 2023 (Annexure C to Mr Quincey-O’Neill’s Affidavit of the same date) referred to different dates. In part, it said: “… I hereby notify that I believe I will need to spend another 60 or so hours from today to complete my written submissions currently overdue of the date I consented to on 1 June before Her Honour Katzmann J, and I hereby request and believe I should be allowed until approximately 10 or 11 August, three weeks from today, or yesterday, to do the work required …”
Respectfully, the Applicant regularly presents in Court as an intense and somewhat dysregulated self-represented litigant on multiple levels, in the sense that he has particular, very specific areas of laser-like focus and ongoing concern, which are interspersed with multiple other random considerations, but which regularly do not address the issues required by the Court, such as compliance with time-tables and the like, as well as matters of evidence and procedure. I do not say it critically that the Applicant also shows regularly a heightened sensitivity if the Court challenges either his further proposed relaxed and distant time-table, or (in his view) where the Court apparently seems to not take his personal difficulties sufficiently seriously.
Moreover, the Applicant regularly repeats arguments or contentions that have been dealt with by superior Courts in the past.[3] He continues to raise them, as noted by Wigney J most recently, “without evidence”, and which are bare assertions. A number of them are scandalous, especially regarding the alleged fraudulent conduct of either or both the Respondent Institute, and/or its lawyers.[4] In the course of his various submissions and comments, in his emails or in Court, the Applicant never addressed any of the detail contained in the judgment of Wigney J last April, except to record his disapproval of it.[5]
[3] Such matters, generally discussed in earlier judgments under principles of “abuse of process”, need not be canvassed further here. It is sufficient simply to note some of the cases, a number of which have been discussed in earlier judgments. See Walton v Gardiner (1993) 177 CLR 378 at 393 (“… their continuance [of proceedings] would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of in earlier proceedings.”); Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256 at [9] – [15] & [64] – [70] (Gleeson CJ, Gummow, Hayne and Crennan JJ); Tomlinson v Ramsey Food Processing Pty Ltd (2016) 256 CLR 507 at [26] (French CJ, Bell, Gageler and Keane JJ), and UBS AG v Tyne (2018) 265 CLR 77 at [38] – [45] (Kiefel CJ, Bell and Keane JJ); at [72] (Gageler J), and at [126] and [136] – [138] (Gordon J); her Honour was in dissent in the result.
[4] See, for example, CIT 23 at [73].
[5] In an email dated 24th April 2023, Dr Drummond informed Chambers and the Respondents of his ‘concerns’ with Wigney J’s judgment and hence his intention to set it aside. On 30th May 2023, Dr Drummond emailed Chambers again, this time stating that ‘all Orders, Judgements, reasons etc. since 28 November 2017 that have curtailed my justice seeking efforts in any way, or supported the Respondent's avoidance of liability, accountability etc. in any way, including the most recent by HH Wigney J, can and should be viewed as ones pursued by the Respondent fraudulently - and set aside or varied accordingly.’
Further still and related to the previous paragraph, the Applicant continues to make various contentions that have been the subject of decision by the Full Court, notably against the conduct of the litigation by the Respondent directly, and equally disparagingly against the Respondent’s lawyers. From time to time, he also asserts, or implies, certain bias by this Court. Notwithstanding such matters having been determined adversely to him, he nonetheless continues to raise them.[6]
[6] See, for example Wigney J’s comments in CIT 23 at [80] – [81], by reference to earlier Full Court decisions there cited.
Among other things, through regular and extremely lengthy correspondence, almost invariably very late at night, the Applicant details various and varying tales of difficulty with his family, and his teaching commitments. He seems incapable of appreciating that everyone (all other litigants, Court staff, and Judges) has personal matters to address which cannot be allowed to overwhelm and derail litigation, especially when the public resources of the Court are constantly expended on this matter. Such realities of the intersection of litigation and daily life plainly, in his view, do not apply to him, even if every other litigant in all courts is bound by Orders and time-tables. If this was not the case, the already significant delays, expenditure of scarce resources, and much else, in litigation would result in complete disarray and general mayhem. Regrettably, even after 8 years, more often than not, the Applicant seems intent, and determined, to say and do whatever is necessary, within whatever self-assured and self-determined time-table he wants, to file his submissions (invariably without any penalty) when he says that he will likely be in a position to do so.[7]
[7] In this regard, see the comments by Wigney J in CIT 23 at [87] – [89].
To state the obvious: there is no right to litigate, and certainly not in relation to unbridled litigation in the face of regular default. Indeed, the Applicant’s abiding sense of injustice at his treatment by the Respondent, now more than a decade ago, impels his comments and submissions always to stray over a wide and imprecise expanse. Various comments have been made by the Full Court at different times on this feature of the Applicant’s bare assertions and his grounds of complaint, as well as his discursive and lengthy submissions.[8]
[8] Cf the reasons of Wigney J in CIT 23 at [66].
The detailed judgment of Wigney J in CIT 23 is the latest iteration of 10 earlier judgments in either this Court or on appeal to the Federal Court of Australia. His Honour distils and summarises the most recent history of this 8 year litigation. He also comments on the nature of the litigation itself, at [85] as “the sorry history of the litigation”, and at [87] & [90] as “the extraordinary history of the litigation.” Other descriptions have been used by me in the past, and by the Full Court, from time to time.
At [87] in CIT 23, Wigney J referred to various difficulties of the Applicant but noted that, to a “large extent”, they were problems of his own making. At [88], his Honour remarked that the Applicant’s non-appearance at Court on 6th October 2022 “was entirely unacceptable.” At [89], his Honour went on to state:
The appropriate course in those circumstances was for Dr Drummond to appear in court and press his adjournment application. He did not do so. Instead, he simply took it upon himself to not appear and effectively gave himself an adjournment. I am not persuaded that the primary judge’s response to that rather high-handed conduct by Dr Drummond was unreasonable, or unjust.
Finally, at [89], Wigney J said:
It was, of course, a serious matter for the primary judge to dismiss the primary proceeding as a result of Dr Drummond’s non-appearance. This was, however, a case where it was plainly open to the primary judge, given the extraordinary history of the litigation and the circumstances of Dr Drummond’s non-appearance, to conclude that “enough was enough”: cf Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18.
Context & recent history
As already noted multiple times already, Wigney J delivered judgment on 5th April 2023 refusing the Applicant leave to appeal the Orders that were made in October 2022. Following delivery of His Honour’s decision, this Court simply reissued the Orders of October 2022 solely to accommodate the reality of a change in dates because of the appeal. No other changes to the Orders were made. Notwithstanding the Applicant’s frequent protests that he is not adversarial, he nonetheless appealed the reissued Orders, the substance and detail of which, apart from dates, Wigney J had refused the Applicant leave to appeal.
After the Applicant’s last appeal at that time regarding the amended dates for compliance with filing submissions was filed, enquiries were made of the ACT Government Solicitor whether or not an Application would be made to seek expedition of the appeal. It was confirmed on 26th May 2023 that no such Application would be made. On 29th May, however, the ACT Government Solicitor advised the Court that an objection as to the competency of the appeal would be raised. The relevant Notice of Objection to Competency had been filed on 26th May 2023.
Notwithstanding the advice to the Court regarding the competency of the latest appeal, on 1st June, Katzmann J made Orders by consent allowing the Applicant’s appeal in part, but only in relation to yet further extensions of time for filing submissions, and to double the length of them. At the directions hearing on 24th July, Counsel for the Respondent indicated that, in effect, the “Consent Orders” were, essentially a means to get rid of that appeal as quickly and expeditiously [and pragmatically] as possible. On that same occasion, I raised questions as to whether or not these Consent Orders effectively thwarted and overturned the detailed judgment and Orders of Wigney J earlier in the year. I also raised, somewhat rhetorically, whether or not this further appeal, over exactly the same Orders that were made last October and not disturbed by Wigney J, effectively constituted some form of abuse of process.
In part, the reason for raising a possible ‘abuse of process’ point was simply because of the following undisputed facts, most of which were also recorded by Wigney J, thus:
(a)the Applicant did not attend the third and fourth day of the trial in July 2022 (the Applicant informally sought an adjournment of the fourth day of the hearing);
(b)having notified the Court on 2nd October 2022 by email to Chambers that he was depressed and in some state of distress, the Applicant did not attend the resumed final hearing in early October 2022 (being a date he had nominated he was certain he could, and would, accommodate to give him sufficient time to recover and to prepare for the remainder of the trial; his assurances were supported again by his long-time GP, Dr Wessell);
(c)the Applicant did not comply with the filing directions set out in the Orders of 6th October 2022;
(d)the Applicant was refused leave to appeal from those Orders in April 2023; and
(e)pursuant to the further extended timetable made by consent in the Federal Court on 1st June, the Applicant has still not complied with filing any submissions, in circumstances where he has had, in reality, nine months to do so.
It might also be observed that, at least by consenting to the Orders of 1st June, the Respondent not only acquiesced in this extra, extended time-table for filing, but (to an extent) has aided and abetted it – until now, with the consequent extra expenditure of Court resources.
In the course of the general discussion with the Applicant on 24th July 2023, I raised with him the following practical matter. First, it was now approximately 10 months or thereabouts since the Orders of this Court in early October 2022 until the present time. Secondly, this amounted to approximately 40 weeks. Thirdly, if the Applicant had written one, single page per week, his extended submissions of 40 pages (twice as long as first Ordered by this Court) would have been completed and filed. There was no apparent demur to this practical “time-management” observation. Moreover, had his logistical task of completing submissions been approached in this way, multiple appeals (and much else, including small mountains of further correspondence primarily from the Applicant) would have been unnecessary.
However, it seems now that, by virtue of the recently filed AIP, after 8 years, the Respondent has finally drawn a line in the litigious sand and has, thereby, metaphorically and in all other ways, declared that “enough is enough.”
Disposition & procedural course
As a matter of procedural fairness to the Applicant in relation to the Respondent’s recent Application in a Proceeding, notwithstanding the very brief, if not summary, arguments put by the Respondent’s Counsel in support of it to dismiss on the grounds of identified default, in my view, the Applicant should have an opportunity to file a Response to the Application. He should also file a very short affidavit of no more than 5 pages (anything beyond 5 pages will not be read) together with very brief written submissions of no more than 2 pages (anything beyond the 2 page limit will not be read) in response to the Application to have his eight year old litigation dismissed.
The Applicant’s documents in response to the AIP are all to be filed within 14 days, namely by 9th August 2023. Of course, the Respondent should have an opportunity to file very brief submissions in reply of no more than 2 pages, with the same conditions already mentioned for contravening the prescribed length. The Respondent’s submissions in Reply are to be filed no later than 16th August 2023.
To repeat: notwithstanding the perhaps theoretically correct submission that the Court could proceed immediately to deal with the Application to dismiss the proceedings in the light of the existing self-executing Orders regarding non-compliance or default, in my view, the most appropriate course is for the Court to grant the Applicant a short period of time to file the documents identified (Response, Affidavit and submissions) regarding it. I note that he has heard the Respondent’s arguments in support of it in open Court on 24th July. I therefore make the procedural Orders indicated.
Postscript
Since the delivery of these reasons and making Orders on 26th July 2023, the Court has become aware that the Applicant has now lodged a further appeal in relation to those Orders to ensure that the Applicant was afforded procedural fairness and that he could/should file material in response to the Application in a Proceeding filed by the Respondent. Simply to state a fact: this is his third appeal in 10 months in relation to procedural Orders. Although I understand that his Grounds of Appeal traverse matters other than the procedural Orders made on 26th July 2023, none of which were raised with the Court on 24th July or in correspondence, it is inapposite to comment on any of these other matters canvassed in this latest appeal.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Neville. Associate:
Dated: 26 July 2023
ANNEXURE A
Email dated 14th July 2023
Dear Registry and Mr Quincey-O'Neill for the Respondent,
Up front: I email here to the Registry rather than the Associates of His Honour Neville J due to instructions from His Honour that I should not email HH's Associates, but understand that this email will be forwarded on to His Honour's Chambers.
I hereby confirm my availability to attend Court on Monday 24 July at 10.30 am as directed in His Honour's 23 June Orders as attached here.
I also notify that whereas His Honour seeks the attendance of Mr Chilcott in Court at 10.30 am on 24 July, it is my understanding that Ms Sydney now assumes the role previously assumed by Mr Chilcott. I merely pass this on as an understanding in case it helps, acknowledging that you Mr Quincey-O'Neill, or Mr Chilcott or Ms Sydney themselves, could further clarify here, and I apologise if what I say here is inaccurate or otherwise of no assistance.
I am making steady progress toward completion of submissions due under the combined effect of the Orders of Their Honours Neville J and Katzmann J of 27 April and 1 June respectively as attached, and request Respondent consent and clarification and Court permission and clarification as follows please, to enable my completion of these submissions:
1.extension of time for my submissions currently due 4.00 pm Tuesday 18 July, till 9.00 am Monday 24 July (Option A), or, if that is not acceptable, till 4.00 pm (Option B) or 2.00 pm (Option C) Friday 21 July; and
2.confirmation on page numbering system used by the Court and Respondent for Affidavits – using the E17 attachment here as an example to hopefully help to clarify any global page numbering that has been used.
In relation to Request 1 here, in light of the statement on defaults in Her Honour's 1 June 2023 Orders – a statement I consented to, I submit here that my need for additional time is overwhelmingly due to:
(a)a workload situation I experienced in my mathematics teaching job from 1 June to 28 June that I found so extreme and overloading to the point where I found myself unable to do any work on my Court submissions at all over that 1-28 June time period (whereas I have been able to do some 48 hours in the 16 days since then); exacerbated by having to use significant fractions of my free period and other post teaching time dealing with not one but five car insurance claims for two of my three adult children – four for recent incidents in cars driven by my 26 year old adult son, and one for the theft of a car in possession of my 22 year old younger of two daughter; and I do not intend anything improperly light here, but it felt like an extra part time work dealing with those insurance claims etc. and other things that fell on to me in my parental role in that time period;
(b)standard student welfare concerns I have for all of my 125 or so student early this coming week (the first week back after the school holidays), and significant concerns I have for several students who have significant mental health related challenges, such that I believe I need to attend for work this coming Monday 17 July at least, rather than take time off work to finalise my submissions; and
(c)just the time to put the submissions together owing to the nature, substance, complexity etc. of what they cover.
I believe my teaching job workload situation from 1 to 28 June was so unreasonable to the point where some sort of remedial management action is required to prevent recurrences in the future, but I obviously don't feel I can pursue such grievances at the moment with my Court matters here to prioritise – and in any event wishing to address concerns in an evolved adult way through discussions with my School Principal and others rather than an adversarial one. I do, however, request that the Court and Respondent please acknowledge that the school education sector is one in which excessive workloads and burnout are live issues and increasingly recognised as such in formal circles ...
I sincerely hoped that I could meet the 18 July deadline in the 1 June Orders so that His Honour Neville J and the Respondent could have from 18 July till 24 July to look over them, in addition to the obvious desire for compliance, and am upset that I've taking longer than I thought on 1 June that it would take me to complete these submissions, but I do not feel responsible for workload overloading I've been subjected to in various ways which I don't believe anybody could ever reasonably blame me nor wish to penalise me for, and which I did not believe I could avoid without causing harm to my students – which I wasn't willing to entertain.
I believe my submissions when provided to the Court and Respondent will at a quick glance show themselves to be of a standard well able to assist the Court in its determination of the matters arising, and such that the Respondent too will have full understandings of what I submit.
In relation to Request 2 here, I note that the Respondent has made reference to some sort of global page numbering system, which may have involved something along the lines of the following:
* 130 pages for my original application of 31 July 2015 and its associated forms and attachments – possibly pages numbered 1 to 130;
* 4 pages for the Respondent's initial response of 24 August 2015 – possibly pages 131 to 134;
* 14 pages in the initial section of my 18 April 2016 Affidavit, meaning the Court stamped cover page, the first Affidavit page, an Annexure A of 11 pages, and a signed 14th page that is page 2 of the Affidavit – possibly pages 135-148;
* 2842 pages of Exhibits accompanying my 18 April 2016 Affidavit – possibly pages 149 to 2990;
* 177 pages in my 3 November 2017 Affidavit – possibly pages 2991 to 3067;
* 439 pages in my 6 November 2017 Affidavit – possibly pages 3068 to 3506;
* 300 pages in the five 14-15 November 2017 Respondent witness Affidavits – possibly pages 3507 to 3806;
I request that the Court and Respondent please inform me if a page numbering system along the lines of that listed above is being used, and if the above requires amendment, and also, the specific page numbering used for the five Respondent witness Affidavits – with apologies for my failure to precisely recall the sequential order intended for these five
As a sample check, according to my listing of page numbers as attached, the E17 attachment here – an exhibit of three pages comprising a two page letter and the email in which the letter was sent to me as an attachment – are pages 107 to 109 within the 2842 pages of Exhibits accompanying my 18 April 2016 Affidavit, which would make them pages 255 to 257 under the global numbering system estimated as above.
For the purposes of my submissions preparation, I am currently using a reference system which I believe will be easily understood and user friendly to the Court and Respondent, but if any global page numbering system has been set up by the Court and Respondent,. I'd appreciate clarification as to what that is to help ensure that we are literally on the same page, so to speak, as best as possible!
Finally, if my request for a time extension is consented to or otherwise allowed, then I would of course wish for the follow on dates in the 1 June 2023 Orders to similarly be put back six or three days as follows:
* dates amended from Tuesdays 18 July, 14 August and 4 September to Mondays 24 July, 20 August and 10 September respectively under the Option A six days extension option as abov
* dates amended from Tuesdays 18 July, 14 August and 4 September to Fridays 21 July, 17 August and 7 September respectively under the Options B or C three days extension option as above
Mr Quincey-O'Neill if you could please pass on the Respondent's response to my requests here to the Court and I, that would be sincerely appreciated.
Yours sincerely,
Mark Drummond
Email dated 16th July 2023
Dear Mr Quincey-O'Neill and Registry,
Further to below, in light of progress made by the time I write this email at the end of this weekend – and I'm making a lot of progress, but lsower than I wish was the case, I hereby notify that I believe I can have my submissions due this Tuesday filed (and separately emailed to the Court and Respondent) by Monday 24 July at 9.00 am, but almost certainly not before that, after I take a significant amount of leave from my teaching job this week, but believe I must attend approximately half of my classes for my teaching job, including classes on Monday and Friday for all of both of those days.
My best efforts to partially comply with current orders is likely to see me filing late and emailing my submissions, as stated above, and providing USB thumbdrives to the Court and Respondent at the Directions Hearing on 24 July containing a single large pdf file with global page numbering for the full set of documentary evidence that I will refer to in my submissions, where the global page numbering will be as below (two and three emails down here), though possibly slightly adjusted if corrections to what is below are needed. The USBs (identical copies for Court and Respondent – which I won't need back) will also have the evidence in separate pdfs, intended for best possible convenience.
So I am happy to withdraw my request for information on any other global page numbering that has been set up, and press ahead with a system I'm currently trying to use, unless it's very easy for this confirmation to be provided to me.
I request that the Court and Respondent please acknowledge that I have an extremely challenging week ahead trying to do my best for the submissions due along with other commitments I can't realistically avoid, and that the Court and Respondent please await until the Monday 24 July Hearing to assess my submissions efforts and extent of partial compliance as known by then.
Regards, Mark D
Email dated 21st July 2023
Dear Registry and Mr Quincey-O'Neill,
As an update to previous correspondence as below, I hereby notify that I believe I will need to spend another 60 or so hours from today to complete my written submissions currently overdue of the date I consented to on 1 June before Her Honour Katzmann J, and I hereby request and believe I should be allowed until approximately 10 or 11 August, three weeks from today, or yesterday, to do the work required, based on the estimate that three hours per day is the amount of time or rate of progress I can reasonably achieve in and around my work and family etc commitments without risk to my health.
I request from the Respondent a model litigant approach to my difficulties and request for additional time here, please, and from the Court an approach that is consistent with the Respondent's model litigant obligations as a quite large government agency, etc. etc.
I have had a cold of moderate severity this week and some upset tummy symptoms also but have still managed to average some seven hours a day each day this week working on my submissions, attending my workplace on Monday and taking leave from Tuesday till next Monday solely to attend to Court commitments, but don't believe I can or should complete the required 60 or so hours of work between now and Monday's 10.30 am Hearing. I will, however, endeavour to ensure that between now and next Monday's hearing I am able to attend Court in a fit, non-exhausted state so that I am able to advocate for myself soundly.
I am going to try and make an appointment today with my GP about my cold, but don't believe my cold should stop me from attending next Monday, and I'll wear a face mask etc if needed, and will pass on any further update if my GP thinks I'm infectious etc.
In good faith I estimated back on 1 June 2023 before Her Honour Katzmann J that about 60 hours work would suffice for me to complete these submissions I'm still not finished, and that has turned out to be an inaccurate estimate on my part, and not for the first time of course – my optimism as to my rate of progress again proving inaccurate, but the time required is certainly proportionate to the number of quite complex mixed questions of fact and law which arise in my matter, and I request that this is acknowledged as fully as possible, please.
I feel I now must slow down from the seven hours a day effort I've been putting in up till now of late to help ensure that I can recover from my current cold and be able to attend to my Court and other commitments as required as best as possible from next Monday.
I also request that the Respondent and Court please acknowledge that whatever difficulties I've had in the indeed long history of this matter, I've always or at least nearly always given courteous notice of my experiences of difficulty as I'm again doing now.
Yours sincerely, Mark Drummond
1
10
0