Cockburn v Canberra Institute of Technology (No 4)
[2023] FedCFamC2G 1226
•20 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Cockburn v Canberra Institute of Technology (No 4) [2023] FedCFamC2G 1226
File number(s): CAG 58 of 2015 Judgment of: JUDGE W J NEVILLE Date of judgment: 20 December 2023 Catchwords: PRACTICE & PROCEDURE – further Application by Respondent to dismiss primary Application in light of Applicant’s ongoing default and delay after 8½ years of litigation – Applicant again did not appear at the hearing of his own Application – previous Full Court decision dismissing Applicant’s appeal – no prospect of the litigation ever concluding – outrageous contentions by the Applicant against the Respondent’s lawyers including “fraud” and continually raising issues that are statute-barred and/or those that have been determined previously – considerations regarding “abuse of process” – dismissal of proceedings in their entirety. Legislation: Fair Work Act 2009 (Cth)
Federal Circuit and Family Court of Australia Act 2021 (Cth) s.139, 190
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr.13.04, 13.05, 13.06.
Cases cited: AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256
Cockburn v Canberra Institute of Technology (No.2) [2022] FedCFamC2G 866
Cockburn v Canberra Institute of Technology (No.3) [2023] FedCFamC2G 761
Drummond v Canberra Institute of Technology (No.2) [2022] FCAFC 162
Drummond v Canberra Institute of Technology [2023] FCA 421
Professional Administration Service Centres Pty Ltd v Commissioner of Taxation (2012) 295 ALR 52
Tomlinson v Ramsey Food Processing Pty Ltd (2015) 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: 63 Date of hearing: 18th December 2023 Place: Canberra Solicitor for the Applicant Self-represented with no appearance Counsel for the Respondent Ms A Costin of Counsel 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:
18 DECEMBER 2023
THE COURT NOTES THAT:
A.The Court will publish reasons as soon as practicable, noting amongst other things, that the Applicant did not attend Court today in accordance with his email dated 15 December 2023 and this morning; and
B.The Applicant did not attend Court for the remainder of the Final Hearing in July 2022 and again in October 2022; accordingly,
ON A FINAL BASIS, THE COURT ORDERS THAT:
1.All outstanding Applications (Final and Interlocutory) be dismissed.
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 W J NEVILLE
Introduction & Overview
On 18th December 2023, the Court made Orders dismissing all outstanding Applications. The Court indicated that reasons for those Orders would issue. These are those reasons.
Multiple earlier judgments in this Court, and in the Federal Court of Australia, have set out the long and often tortuous history of this matter, which began on 31st July 2015 when the first or primary Application was filed in the Fair Work Division of this Court.
After a number of ultimately aborted attempts to conduct a final hearing (details provided in earlier judgments), such a hearing was commenced in July 2022. As a result of the Applicant’s collapse after completing his cross examination, the trial went “part-heard” until October 2022. On that next occasion, the Applicant did not attend. The Court made Orders dismissing all Applications but, on its own motion, stayed those Orders to allow the Applicant to file final submissions.[1]
[1] See Cockburn v Canberra Institute of Technology (No.2) [2022] FedCFamC2G 866.
In the course of those reasons, I noted the following comments by the Full Court in a contemporaneous appeal in the matter, which remain apposite:[2]
… even if the hearing were adjourned to a later date, there would be a distinct possibility that the Applicant, again confronted with the pressures of preparing for and presenting his argument, would experience similar symptoms of “burnout”. Delaying the hearing will not relieve the Applicant of the stresses of the litigation, but will prolong them. It is unlikely that granting an adjournment will ultimately allow the Applicant to better prepare for and conduct his Application.
[2] Drummond v Canberra Institute of Technology (No.2) [2022] FCAFC 162 at [32].
What the Full Federal Court stated, has again come to pass. In the 14 months since the Orders of this Court on 6th October 2022, there has been a succession of Applications for leave to appeal each set of procedural Orders filed by the Applicant, each of which has sought further extensions of time for filing (and sometimes increased page limits). No final submissions in accordance with the Orders of October 2022, and all subsequent iterations of them, including the Consent Orders issued by Katzmann J on 1st June 2023, have been filed by the Applicant.
The only appeal judgment delivered, regarding the Applicant’s failed attempt to challenge the October 2022 Orders, was by his Honour Wigney J in April 2023 (reasons delivered in May 2023). In the course of his reasons, his Honour stated, at [87] – [89]:[3]
[87] It may readily be accepted that Dr Drummond felt pressured and mentally exhausted in weeks leading up to the October hearing date given that he had to prepare for and present his application for leave to appeal. That, however, was to a large extent a problem of his own making. He had been represented by counsel, Mr Duc, but for reasons unknown had withdrawn Mr Duc’s retainer. Moreover, litigation is an inherently stressful process and all litigants may be expected to suffer some pressure and exhaustion, particularly those that choose to represent themselves. The fact that Dr Drummond may have felt pressured and exhausted by the litigation did not necessarily entitle him to an adjournment. More to the point, it did not justify Dr Drummond’s actions in simply failing to attend the adjourned final hearing of his case, all the more so given the extraordinary history of the litigation.
[88] However Dr Drummond may have felt on the morning of 6 October 2022, and accepting for present purposes that he may have felt burnt out, exhausted and unable to proceed with the hearing, it was entirely unacceptable for him to simply fail to appear before the court on that day. That is so particularly given CIT’s opposition to his adjournment application and the indications in the correspondence that the primary judge was not inclined to grant an adjournment based merely on the correspondence that had been sent to the court.
[89] 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 give himself an adjournment. I am not persuaded that the primary judge’s response to that rather high-handed conduct by Dr Drummond was unreasonable, let alone unjust.
[3] Drummond v Canberra Institute of Technology [2023] FCA 421.
Since his unsuccessful appeal before Wigney J, there have been three sets of procedural Orders for the filing of submissions; only the dates (or page limits) were changed from those unsuccessfully appealed. Each issued simply as a result of (a) the judgment of Wigney J in May 2023, (b) the consent Orders of Katzmann J on 1st June 2023, and (c) following the discontinuance of the Applicant’s third Application in a Proceeding, dated 24th November 2023, and the Court subsequently issuing further Orders for the filing of submissions, dated 27th November 2023. The Applicant has sought to appeal each set of Orders. The first attempted appeal was filed 12th May 2023; it was resolved by consent as noted in reasons of this Court dated 22nd August 2023.[4] The second was discontinued on 24th November 2023. The third, which was notified to the Court on 11th December 2023, remains formally unfiled in the Federal Court.
[4] Cockburn v Canberra Institute of Technology (No.3) [2023] FedCFamC2G 761.
Put another way, the Applicant has had 14 months to file final submissions since the ultimately aborted Final Hearing in October 2022. He has not done so. Nor has he filed submissions in the period since pursuant to later Orders. He has, however, found time (a) to file multiple Applications in the Federal Court, and (b) regular, and at times, voluminous correspondence explaining, and at other times, bargaining if not bartering, for various further procedural indulgences.[5] But still no final submissions from the Applicant.
[5] In the course of this correspondence, the Court indicated that the correspondence would ultimately be admitted into evidence.
Formally, there are only two [interlocutory] Applications currently before the Court: (a) by the Applicant, filed 27th November 2023; and (b) by the Respondent, filed 26th July 2023, together with a Response, filed 14th December 2023.
Following the Applicant’s filing of a Notice of Discontinuance on 24th November 2023, the Court again made Orders on 27th November 2023 (a) to hear the Applicant’s 27th November 2023 Application on 18th December 2023, and for the filing of an outline of submissions by both parties.
The Applicant failed to file submissions as ordered, but regularly remonstrated about what he should be permitted to file regarding both length and detail, including issues dating back to 2009 and which went extensively beyond the Agreed List of Issues, filed 30th April 2021. The Applicant also failed to attend at the hearing of his Application on 18th December 2023.
In the absence of the Applicant, now for the third time (having been absent from the Final Hearing in July and October 2022), and other failures to comply with (a) Orders of the Court and with (b) the Rules of this Court, Orders were made on 18th December 2023. Other than stating the decision of the Court to dismiss all outstanding Applications (final and interlocutory), and indicating generally the multiple defaults of the Applicant, the Court indicated that written reasons would be published. What follows are those reasons. They should be read in the context of, and by reference to, the judgment of Wigney J earlier referred to and the other judgments noted in his Honour’s reasons (including this Court’s judgment under appeal), and the most recent judgment of this Court in August 2023, also noted above.
Applicant’s Orders Sought
The Application in a Proceeding, filed by Dr Cockburn on 27th November 2023, sought the following relief:[6]
1.joinder of the following individual persons as Respondent parties: Ms Leanne Cover, Ms Elizabeth Tomaras and Mr Ian Douglas Lang
2.joinder of the Australian Capital Territory Government as a Respondent party
3.transfer of the matter to the Federal Court of Australia
4.recusal of the Court as currently constituted
5.variation of Judgements and reasons published to accompany Orders of His Honour Neville J, and for Ms Leanne Cover and other Respondent witnesses to be available for cross-examination for a reasonable sufficiency of time.
on the basis that Orders 4 and 6 need not be considered by the Court as currently constituted if Order 3 is made
[6] To state the obvious: “Cockburn” is the anonymised name of the Applicant in this Court. Apparently if not obviously, he has not sought the same course in the Federal Court.
In addition to his formal Application in a Proceeding, more recently the Applicant has sought informally a number of variations to the filing timetable regarding his November 2023 Application. He has sought the consent of the Respondent, on terms, to his various proposals. The Respondent has refused such approaches. I will not address these informal inquiries or requests from the Applicant.
Respondent’s Orders Sought
The Respondent’s Application in a Proceeding, filed 26th July 2023, sought the following relief:
1.The proceedings be dismissed as to the whole of the relief claimed by the applicant pursuant to Rules 13.04(1)(a) and (e), and 13.005(1)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), Order 7a. made by Justice Katzmann dated 1 June 2023 and Order 1 made by Judge Neville on 27 April 2023.
The Respondent’s Response (filed 14th December 2023) to the Applicant’s latest Application in a Proceeding, sought Orders that that Application (lodged on 16th November but not accepted for filing until 27th November 2023) be dismissed.
Written submissions on behalf of the Applicant
The Applicant did not file any submissions in accordance with the Orders dated 27th November 2023, or at all.
Written submissions on behalf of the Respondent
The Respondent’s submissions, filed 14th December 2023, were as follows (emphasis in original; footnotes omitted):
A.RESPONDENT’S APPLICATION DATED 21 JULY 2023 (Dismissal AIP)
1. The Respondent seeks dismissal of the whole of the relief claimed by the Applicant in the substantive matter CAG58/2015. The relevant principle applicable to determining the Dismissal AIP have been recently restated in a decision of this Court (see: Helm v Sapphireone Pty Ltd at [26]):
a. The nature of the default involved: pursuant to rule 13.04(1)(a) of Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (the Rules), the Applicant has failed to comply with Justice Katzmann’s Order 7a dated 1 June 2023 (orders made by consent) which required the Applicant to file and serve his written closing submissions in the substantive matter (the Submissions) by 18 July 2023.
b. The duration of the default and whether it is continuing: 200 days would have passed from 1 June (when the orders were made) to 18 December 2023 when the matter is heard. It is unknown if and when the Submissions may be filed given that none of the previous representations made by the Applicant about the imminent filing of the Submissions have borne fruit.
c. The circumstances in which the default occurred: the Applicant did not adduce any coherent evidence to support the delay in filing the Submissions.
d. What has happened since the default, including whether any attempt was made to rectify the situation: the Applicant had made numerous representations in relation to various dates by when he would file the Submissions - all to no avail.
e. Whether the continuing default is occasioning unnecessary delay, expense or other prejudice or unacceptable burden on the Respondent: the length of time this matter has been before the Court is extraordinary and unprecedented – eight and a half years including various applications for leave to appeal – and it does not meet the overarching purpose of the Rules, to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. The Court’s resources are scarce and must be used judiciously. Therefore, the Applicant should not benefit of the Court’s indulgence above what is otherwise afforded to other litigants.
f. The attitude of the applicant, as to whether or not the Applicant genuinely wishes the matter to go to trial within a reasonable period: the Applicant’s ongoing delay in filing the Submissions together with the blatant contempt in regard to complying with Court orders denotes that the Applicant does not genuinely wish the matter be finalised within a reasonable period, or ever.
g. The stage that the proceedings have reached: the proceedings have been at the same current stage for over a year due to the Applicant filing three applications for leave to appeal but not filing his Submissions.
h. The consequences to the applicant of dismissing the proceeding: if the Dismissal AIP is granted, it will bring the proceeding to their finality. The Respondent acknowledges the importance of this phase of the proceedings but submits that the Court should exercise its discretion for the reasons outlined above as the Applicant did not prosecute the proceeding with due diligence. Consequently, the proceedings should be dismissed for want of prosecution.
B.APPLICANT’S INFORMAL EXTENSION APPLICATION (Extension AIP)
2. The Applicant’s Extension AIP should be dismissed. The Applicant did not file any persuasive evidence to support the granting of an extension by the Court.
C.APPLICANT’S APPLICATION DATED 16 NOVEMBER 2023 (November AIP)
3. All orders sought in the November AIP must be dismissed by the Court as baseless. Further, the Applicant’s affidavit of 16 November 2023 does not support any of the orders sought but merely expresses the Applicant’s view in relation to why the orders should be made.
4. The Respondent relies on its Response to the November AIP filed on 12 December 2023 and the supporting affidavit of even date. In addition to that, the Respondent makes the following brief submissions outlined below.
Order 1 and 2: Joinder of four additional parties to the proceedings
5. The Applicant’s email dated 16 November 2023 states that he has filed the November AIP in relation to the additional parties to avoid the limitation period of six years lapsing. The Applicant’s understanding of the limitation period is misconceived because the calculation of any potential cause of action would have started at the latest in September 2009 when the Applicant stopped being employed by the Respondent. Therefore, the limitation period of 6 years as asserted by the Applicant is incorrect, has long expired and no other parties can be joined to the proceedings.
Order 2: Transfer the matter to the Federal Court of Australia
6. The Court, as currently constituted, does not have jurisdiction to transfer the matter to the Federal Court.
Order 4: Recusal of the Court as currently constituted
7. The relevant test to be applied in determining whether a judge is disqualified by reason of apprehended or actual bias is well known and need not be repeated. The principles outlined in the relevant authorities have not been enlivened in Neville J’s decision dated 22 August 2023. The previous decisions are relevant insofar as differently constituted Courts have determined that Neville J was not biased in his prior decisions against the Applicant.
Order 5: Variation of previous judgements
8. Notwithstanding there are no legal reasons for this to occur, the Court, as currently constituted, does not have jurisdiction to vary decisions made by the Federal Court.
Order 6: Notice to Admit Facts (the Notice) and orders regarding witnesses attendance
9. The Applicant appears to disregard that the matter has been before the Court for final determination since October 2022 and the Respondent is seeking the entire matter be struck out for want of prosecution. Hence, the Notice is wholly irrelevant at this stage of the proceedings, and such requires should be dismissed.
10. The current phase of the proceedings does not warrant calling witnesses. At the October 2022 hearing, the Applicant had the opportunity to examine the witnesses called by the Respondent. However, that did not occur as the Applicant did not attend the hearing and withdrew his Counsel’s instructions to represent him in the matter. It follows that the Applicant’s request is irrelevant and should also be dismissed.
The Applicant’s Application of November 2023
What follows is in three parts regarding this latest Application: (a) an outline of relevant principle; (b) discussion of the Applicant’s supporting Affidavit, filed 16th November 2023; and (c) consideration and determination of the Application in a Proceeding. This is in circumstances where the Applicant did not attend the hearing of his Application. As such, the Court could, pursuant to Rule 13.06(1)(c), simply dismiss the Application. Further, as noted by Wigney J, at [89] in his May 2023 judgment in relation to the Applicant’s failure to attend the Final Hearing in October 2022, the Applicant then (as he did here on 18th December 2023) “… simply took it upon himself to not appear and effectively give himself an adjournment.”
Summary of relevant principle
In addition to other authorities referred to above (and in earlier judgments), and others recorded later in these reasons, comments by the High Court in Batistatos v Roads and Traffic Authority of New South Wales provide convenient, and well-known, points of principle regarding the conduct of this litigation and the ongoing risks of it continuing.[7]
[7] Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256.
After noting that part of a Court’s power to prevent the abuse of its processes was “the power of the Court to protect the integrity of those processes once set in motion”, the majority also recorded that (a) “abuse of process” extends to “proceedings that are seriously and unfairly burdensome, prejudicial and damaging, (b) “… any procedural step in the course of proceedings that have been properly instituted is capable of being an abuse of the Court’s process”, and (c) “the failure to take, as well as the taking of, procedural steps and other delay in the conduct of proceedings are capable of constituting an abuse of process of the Court.”[8]
[8] Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256 at [9] and [15] (Gleeson CJ, Gummow, Hayne and Crennan JJ; internal citations omitted).
The majority also noted (at [70]) that it was not necessary that there be any moral [or other] delinquency on the part of the Plaintiff/Applicant, but rather that, “what was decisive was the objective effect of the continuation of the action.”
Finally, although in dissent in the result, Kirby J discussed at a little length, beginning at [163], that a “fair trial is fair to both sides.”
In addition to the highlighted points of principle, it is also important to have regard to the over-arching purpose of the Court to ensure that matters are determined “according to law, and as quickly, inexpensively and efficiently as possible”.
In my view, none of these statutory objectives and requirements of the Court have been achieved in this matter.[9] Section 190 not only refers to matters of expense and efficiency but also to the efficient use of the Court’s resources, and crucially here, “the disposal of all proceedings in a timely manner.” Further still, the ongoing burden on the Respondent and its witnesses, on any view after so many years of unresolved dispute, incomplete hearings, and non-attendance by the Applicant at crucial times, is intolerably burdensome and should not be permitted to continue. The delay is unconscionable. In my view, the litigation has become, and has been for some time, an abuse of the processes of the Court. There is not the slightest prospect of them being determined finally at any time, among other things, for reasons identified by the Full Federal Court in 2022, noted earlier in these reasons.
[9] See Federal Circuit and Family Court of Australia Act 2021 (Cth) s.190. See also s.139 of the same Act.
The Applicant’s supporting affidavit
The Applicant’s Affidavit in support of his Application in a Proceeding is a regrettably sad and somewhat obsessive narrative which is significantly at odds with (a) a number of his previously stated positions, (b) numerous earlier decisions of this Court and the Full Federal Court, and (c) with proper practice. Regrettably, there are recurring “themes” in the Affidavit that are, again as noted by Wigney J in his often-referenced judgment, “bare assertions.” Perhaps the most prominent of these “themes” are the Applicant’s contentions of consistent perjury by the Respondent’s witnesses in their Affidavits filed in November 2017, as well as “cruel and false assertions” (and “dishonest, evasive and obstructive actions” – par.2 of the Affidavit) by various employees of the ACT Government Solicitor’s office. In order to make good his claims of obvious perjury, in his view, he would need “five or six days” to cross examine three of the Respondent’s witnesses, who he now seeks to join as parties.
As summarily as possible, the following must suffice as an overview of the supporting, but quite troubling, Affidavit provided by the Applicant.
Paragraph 3 asserts that the three witnesses of the Respondent, Ms Cover, Ms Tomaras, and Mr Lang, all made “significantly false statements in their November 2017 Affidavits. He averred that the contents of them contained “significant dishonesty, misrepresentation, misleading of the Court, and perjury.” This conduct, he said, had impacted adversely upon his evidence to assist her to understand what has truly happened to me with the Canberra Institute of Technology (“CIT”).” I note here that, while it is obviously good for the Applicant to have the support of his GP, as noted in earlier judgments, the Full Court viewed Dr Wessell’s evidence as “unhelpful”.[10]
[10] Among other places, see the judgment of Wigney J at [78] and [79].
Pars. 4 and 5 broadly assert that the ACT Government, as well as CIT, together with the named witnesses, have “significantly wronged” the Applicant and prevented him from exercising his workplace rights by failing to require the three witnesses noted above from rectifying “obvious longstanding falsehoods they have maintained against” him. He averred also that these same persons had prevented him from maintaining or securing his “work-life balance and health and wellbeing generally as an ongoing ACT government employee.”
In par.6, the Applicant begins the first of a number of attacks on the Court, alleging clear bias in favour of the Respondent. The Applicant stated that “this matter has failed to achieve a just resolution of issues in dispute very largely due to dishonesty and obstruction of justice by the Respondent, but also in large part due to Hs Honour Neville J’s [sic] objectively questionable, objectionable and improper conduct against me and in biased support of the Respondent, especially from soon after 16 November 2017 onward …” He stated that the Court allowed the Respondent and their lawyers to conduct themselves so dishonestly, contemptuously, evasively, destructively and cruelly against me throughout the litigation …”
In addition to further claims of dishonesty and “unfair denials”, in par.7, the Applicant provides an outline of what or how he believes the litigation might be “the biggest Fair Work Act 2009 matter ever to come before an Australian Court in terms of the weight of its five or so biggest issues, and the extent of wrongdoing done by an employer against an employee, and levels of dishonesty, cruelty and destructiveness involved…”
Par.8 is more of a general complaint about how the Full Federal Court rejected his submissions in one of his appeals. It is unnecessary to set out any of the contentions made in this paragraph.
Par.9 confirms that he only “skimmed” this Court’s judgment following the Applicant’s self-imposed adjournment at the Final Hearing in October 2022, and that he only “properly read every word” of the judgment of 11th August 2022 for the first time “on the night of 24 October 2023. He said that only upon this reading did he obtain “a full idea of the true extent of the enormity of the inaccuracy, falsehood, untruthfulness, dishonesty, recklessness, bias prejudgment and unreasonableness within the judgment and reasons of 11 August 2022.” He contends that now having read the August 2022 reasons properly he should now be given a further opportunity to expose all of the faults (described above).
In a similar vein, par.10 avers that the Respondent should “face up to and properly respond” to his Notice to Admit Facts that was prepared in March 2021. The matters there set out, in his view, better and properly address the “Affidavits inflicted upon the Court and I in these proceedings on 16 November 2017.” As already noted, the Applicant then seeks that “at least five or six days” will be required for him to cross examine the Respondent’s witnesses.
Par.11 raises again issues relating to judgments allegedly obtained by “fraud, including perjury.” Such judgments, in his view, should be set aside or varied. He contends that all of this fraud and perjury was supported by a named solicitor employed by the ACT Government Solicitor. To state the obvious: such claims are scandalous.
Par.12 continues the same general themes of “egregious and cruel false assertions” by the Respondent’s lawyers as well as further comments on Notices to Admit Facts.
Pars.13 and 14 repeat comments and assertions regarding the alleged misleading of the Court by the Respondent and Ms Cover in particular, as well as the Court’s various failings in taking proper notice of, among other things, the state of ill health of the Applicant, which should have led to obvious further indulgences being granted to him. The Applicant also contended that the Respondent and Ms Cover had successfully evaded cross examination. This is a particularly interesting assertion given that (a) the Applicant did not attend Court to complete the Final Hearing (nor did his Counsel whose retainer had been terminated), and (b) there was an agreed “trial plan” in the calling of witnesses but which, because of the Applicant’s non-attendance, became moot.
Par.15 outlines multiple alleged failings by me in the conduct of the litigation over the past 8½ years, resulting in his conclusion that:
… has in its worst peaks been comparable to other worst category judicial conduct within Australia in recent years.” Further, the Applicant contended that the conduct meted out to him by the Court “could well be viewed as vilification against me in relation to my mental health and victim of crime realities, and conduct which can be viewed as offences or otherwise improper conduct with respect to human rights law, criminal law, and victim of crime legislation...
The claims here extend to alleged “recklessly indifferent public shaming and victim of crime shaming.” The Applicant takes further umbrage regarding the Court’s reference to various psychiatric Reports regarding the Applicant that were annexed to various Affidavits that were properly before the Court.
Par.16 returns to various general criticisms of CIT personnel, as well as further criticisms of the Court, which was said to have engaged in “flat earth style generalisations and excessive criticisms of my sincere efforts.” His factual points return again to matters in 2009 and that “it simply isn’t my fault if others have not yet seen the truth here …”
As a general comment, the Affidavit is sweeping in its criticisms of anyone, and everyone, who disagrees with the Applicant’s view of events in- and outside the Court. Many of the Applicant’s comments are scandalous towards the Court and directed to the Respondent’s lawyers. Invariably, the comments are bare assertions. They ignore proper principle and judicial determination. The Applicant simply cannot accept that there is any other view than his own. Nor can he accept that there should be any limit on how long, and how many opportunities, he should have to prosecute his claims. In my view, he is simply incapable of conducting his own litigation. He is obsessive and completely blinkered in his views – factually and legally.
Consideration & determination
First, the lamentable history of the litigation, in my clear view, puts the responsibility for his consistent plight, and more generally in the regular failings in the immensely unfortunate conduct of the litigation, firmly at the feet of the Applicant. At various times in his reasons (at [85] and [87]), Wigney J described the litigation as having a “sorry history” and an “extraordinary history.” His Honour described, at [66], the Applicant’s [draft] grounds of appeal as “lengthy, prolix and, in many respects, difficult to follow.” The same comments continue to apply to the Applicant’s documents filed and his regularly tortuous, long emails, which are nonetheless highly selective in their focus, and which also ignore, for example, the state of the litigation, the Orders or this Court and those of the Federal Court.
In relation to Dr Cockburn’s failure to attend the final hearing, his Honour said, at [89] (already noted above; emphasis added here):
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 give himself an adjournment. I am not persuaded that the primary judge’s response to that rather high-handed conduct by Dr Drummond was unreasonable, let alone unjust.
Secondly, the Applicant’s Order seeking to join various, extra parties, after 8½ years since the litigation commenced, is both grossly late and must be considered an abuse of process. Two of the persons named by the Applicant are witnesses in the litigation who filed Affidavits on behalf of the Respondents in 2017. The Applicant obviously knew the evidence these witnesses would provide. As a consequence of the Applicant’s failure to attend the Final Hearing after he gave evidence, only one witness ultimately gave evidence on behalf of the Respondent. No one else was ever required because of the absence of the Applicant from the trial. Any and all more recent claims regarding, for example, Ms Cover and her availability to give evidence last year are completely moot because the trial could not, and did not, proceed because the Applicant vacated the field and never showed up again after he gave his oral evidence.
The Applicant’s attempt to join the persons named appears, in part, to be linked to his even more heightened focus upon various contentions he has made in various emails in recent times regarding Ms Cover, and further claims of “fraud” against multiple others. In this regard, it is important to record Wigney J’s comments in his May 2023 reasons, at [71] and [72] regarding similar general claims of “fraud”, where his Honour stated (emphasis added):
[71] It should perhaps be noted, in that context, that Dr Drummond’s written and oral submissions contained a litany of complaints concerning CIT’s conduct of the primary proceeding. He claims, among other things, that CIT had, for many years, defaulted and acted unfairly in the conduct of the litigation. He went so far as to allege that previous unspecified judgments of the court had been procured by the fraud of CIT, and perhaps their lawyers. Needless to say, CIT disputed Dr Drummond’s contentions in that regard.
[72] I do not propose to deal at length with Dr Drummond’s complaints concerning CIT’s conduct of the litigation, many which relate to events that occurred many years ago and have been addressed in, or are the subject of, previous judgments of both this Court and the court below. Indeed, many of Dr Drummond’s arguments about the past history of the litigation had been put to the Full Court and rejected only weeks before the October 2022 hearing. More importantly, the allegations were mostly bare assertions which were entirely unsupported by evidence and otherwise unsubstantiated. They were also essentially irrelevant having regard to the grounds upon which Dr Drummond actually sought to appeal from the judgment and orders in question.
Because of the astonishing lateness of seeking to join parties to the proceeding, and because to allow it would, in my view, amount to ‘unjustifiable vexation and oppression’ (to use the words of the High Court in Walton v Gardiner), the joinder of parties as sought by the Applicant must be refused.[11]
[11] Walton v Gardiner (1993) 177 CLR 378.
Thirdly, the next Order sought by the Applicant was for the Australian Capital Territory Government to be joined as a party. In addition to the lateness of seeking such an Order, and without repeating the comments in the preceding paragraphs regarding the joinder of other parties, the further hurdle for the Applicant here is that the ACT Government was previously a party (as was the Chief Minister). However, by Orders made on 19th April 2017, the Applicant sought and was granted leave to discontinue against both the ACT Government and the Chief Minister. As with the other proposed joinder of parties, it would be an abuse of process to allow the joinder of parties who were “released” from the litigation 6 years ago to be re-joined. Proposed Order 2 must be refused.
Fourthly, the Applicant’s previous attempt to have the matter transferred to the Federal Court of Australia was unsuccessful. For example, the Applicant’s Application for such transfer was withdrawn in April 2022. It is otiose to re-visit it. While the Applicant considers his matter to be supremely complex and to raise matters of public and other jurisprudential importance, while there is an abundance of factual complexity, it is largely of the Applicant’s own making. And in accordance with the Agreed List of Issues, filed 30th April 2021, the matters canvassed there are regularly dealt with in this Court. There is no basis for a transfer. The Order sought in this regard must also be refused.
Fifthly, the Applicant’s recusal Order must also be refused. Among other things, such was rejected by the Full Court in 2022, and noted again Wigney J at [80] and [81], concluding that there was no basis for any claim of either actual or apprehended bias against this Court. Having been unsuccessful twice on appeal regarding allegations of bias (of any kind), and also having only made procedural Orders since regarding the filing of submissions, this Order sought by the Applicant is devoid of merit and must be refused. It should also be noted that Orders were made by consent on 27th April 2022 that the Applicant no longer pressed both his recusal Application, or that the matter be transferred to the Federal Court of Australia. This is another instance where the Applicant seems to think that whatever his previous position, the Court and the Respondent can (and will) accommodate any change in position, which makes the ability of the Respondent and the Court regularly untenable because one is unable to rely upon the actions and statements of the Applicant.
Indeed, in this regard, there is a significant number of matters that the Applicant seeks to re-agitate notwithstanding that he has either abandoned them some time ago, and/or that they have been determined adversely to his interests in earlier decisions. The “recusal” Application is a good (but not the only) example of this. His recurring and innovative contentions of “fraud” against the Respondent and/or its lawyers, is scurrilous. The High Court has made it clear on a number of occasions that raising of matters that have been previously determined can amount to abuse of process. The statements and discussion are well known and need not be set out here other than by reference alone.[12]
[12] See, for example, Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507 at [26] (French CJ, Bell, Gageler and Keane JJ).
Sixthly, the Applicant’s Order seeking unspecified variations of multiple reasons of this Court, commencing on 25th March 2021, and three subsequent judgments, is at least “oppressive”. The Court does not propose to re-visit previous judgments, especially so late in the day (so to speak). Further, any concerns regarding, for example, reasons published in March 2021 and August and October 2022, should have been raised much earlier. Indeed, the Applicant’s confirmation that he only read earlier reasons very recently further confirms, if more be needed, that it is inappropriate to grant further indulgence when the Applicant advises that he did not read the reasons carefully until more than one year after delivery. Indolence and or flagrant negligence, for whatever reason, in the current circumstances, should not be rewarded. Moreover, the reasons of October 2022 were the subject of the unsuccessful appeal to the Federal Court noted above.
Seventhly, proposed Order 6 seems to conflate two issues: (a) a Notice to Admit Facts, and (b) some form of direction to the Respondent regarding a named witness. Leaving to one side that the Order as sought borders on being unintelligible, the Notice to Admit Facts essentially seems to presume that the Applicant’s failure to attend the Final Hearing in July and October 2022 was without consequence, and that he can simply resume and/or force the Respondent to conduct the litigation solely on his terms, including matters that are now significantly statute barred. The first part of this Order is oppressive and completely inappropriate.
As for directing certain witnesses to attend for cross examination, the same general comment applies. It is as if the Applicant completely, and conveniently, ignores the judgment of Wigney J in May 2023, and the Applicant’s non-attendance at the Final Hearing. All aspects of the proposed Order sought by the Applicant are without merit; the Order sought ignores basic understanding of the proper procedures of litigation; and it ignores the determination of the Federal Court of Australia on appeal.
The Application in a Proceeding, accepted for filing on 27th November 2023, must be dismissed.
Dismissal of the proceeding(s)
In addition to what has already been said, which is also relevant to what follows, I note the following regarding the dismissal of the proceeding in its entirety. In doing so, I am conscious of the matters of principle outlined by Wigney J in his reasons last May regarding the gravity of such a course. In various, past judgments, there has been detailed citation and discussion of principle. Such a comment obviously includes the various authorities and discussion of them by Wigney J in his May 2023 judgment. In such circumstances, the following may be noted summarily.
First, having regard to the well-known principles in AON Risk Services Australia Ltd v Australian National University, the four attempted, and/or aborted, final hearings since 2015, together with the multiple, accompanying interlocutory and directions hearings, are more than sufficient to indicate that (a) the Applicant has had multiple opportunities to conduct his claim(s), and (b) in the Court providing multiple opportunities to the parties (the Applicant in particular), it has expended extensive public resources on the parties here (as the moving party, the Applicant in particular), which in turn has impacted upon other litigants.[13]
[13] AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at [5] – [6] (French CJ); [113] – [114] (joint judgment); [133] (Heydon J).
It is important also to record the High Court’s comments in UBS AG v Tyne, at [38], where Kiefel CJ, Bell and Keane JJ referred, at [38], to the parties having “sufficient opportunity” to identify issues they seek to agitate and to ensure that the same parties bring and prosecute matters with “reasonable diligence”. At [45], their Honours also cautioned that Courts must be “astute to protect litigants and the system of justice itself against abuse of process.”[14]
[14] UBS AG v Tyne (2018) 265 CLR 77
In my clear view, the parties here, and the Applicant in particular after 8½ years, has had more than ample time and opportunity to identify issues in dispute and to prosecute them. The long and winding history exemplifies how not to conduct litigation. And it cannot be said fairly that the Applicant has prosecuted the litigation with “reasonable diligence.” Indeed, his behaviour since the attempted Final Hearing in October 2022 has been an ongoing series of Applications regarding procedural Orders, which have simply attempted to give him further opportunity to file final submissions. Each Application has caused the Respondent further cost, and likewise the Court, further delay. While the Applicant has filed multiple Applications and Affidavits in support, he has still not filed the Ordered Final Submissions after 14 months. The caution expressed by the High Court in UBS AG v Tyne regarding protection of litigants and the system of justice warrants that no further indulgence be granted to the Applicant. Moreover, after years of unfulfilled promises and assurances (including by the Applicant’s medical practitioner) and consistent non-compliance with Orders, the Court simply has no guarantee that any promise given by the Applicant (or any Order of the Court) will be fulfilled. I recorded earlier in these reasons similar comments by the Full Federal Court in the latter part of 2022. It is important to recall those observations (emphasis added):[15]
… even if the hearing were adjourned to a later date, there would be a distinct possibility that the Applicant, again confronted with the pressures of preparing for and presenting his argument, would experience similar symptoms of “burnout”. Delaying the hearing will not relieve the Applicant of the stresses of the litigation, but will prolong them. It is unlikely that granting an adjournment will ultimately allow the Applicant to better prepare for and conduct his Application.
[15] Drummond v Canberra Institute of Technology (No.2) [2022] FCAFC 162 at [32].
At [90] of his judgment, 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.
Respectfully, the circumstances that have unfolded since his Honour’s comments in May 2023 have, in my view, only deteriorated. I have noted multiple times already that the Applicant has still not filed any final submissions despite having had 14 months to do so. He has continued to delay the finalisation of the proceedings by repeatedly filing Applications seeking leave to appeal procedural Orders that are equivalent to those that were unsuccessfully appealed before Wigney J earlier this year. Every such Application continues to put the Respondent to further expense and delay, as well as continuing to require the Respondent’s witnesses to be potentially available at some unknown time and dates into the future. Their state of suspended animation cannot continue.
After 8½ years, the Applicant has had more than ample opportunity to prosecute the issues previously identified and agreed. In recent times he has sought to re-visit multiple issues that were not agreed, and which are now, in any event, statute barred. By continuing to re-visit such issues, including the constant making of outrageous claims of “fraud” against all and sundry (including against lawyers from the ACT Government Solicitors – past and present), the Applicant continues to display his ongoing propensity (a) to ignore previously agreed issues, and (b) to ignore his conduct – notably his non-attendance at the final hearing, and most recently his further non-attendance at the hearing of his Application in a Proceeding.[16] He has failed to prosecute his claims with “reasonable diligence” as required by the High Court in UBS AG v Tyne. In my view, the conduct of the litigation has more than passed, indeed long passed, the point where it is now an abuse of process. It is for the Court now to act to protect “litigants and the system of justice against abuse of process.”[17] Indeed, left unchecked, the Applicant will simply keep seeking indulgence after indulgence, with no guarantee that the litigation will ever conclude. He will continue, contrary to previously agreed issues, to raise now almost ancient issues that are well outside those previously agreed. He will continue to “conduct” his case almost exclusively according to his own views and procedures, and continue to expect compliance with his proposed courses of action by both the Respondent and the Court. This cycle cannot continue. It ends here.
[16] See Rule 13.06 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (“the Rules”) regarding “default of appearance of a party” and the capacity of the Court to dismiss the Application.
[17] UBS AG v Tyne 265 CLR at [45].
The Applicant has consistently not complied with Orders and directions of the Court, over a long period of time. Such default again raises the spectre of Orders being made “on default” under this Court’s Rules (rr.13.04 and 13.05).
For the reasons given, and generally accepting the submissions by the Respondent, all outstanding Applications (final and/or interlocutory) must be dismissed.[18]
[18] In addition to the authorities noted here, the Respondent noted principles outlined by the Full Court in Professional Administration Service Centres Pty Ltd v Commissioner of Taxation (2012) 295 ALR 52. At [44], the Full Court set out a range of considerations regarding the dismissal of proceedings. Many of the matters set out there are, in my view, readily accommodated with the principles set out in these reasons and the consideration of them in the light of the unfortunate circumstances of the present matter.
I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of Judge W J Neville. Associate:
Dated: 20 December 2023
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