Finch and Shibo (No 3)

Case [2015] FamCA 1059

FAMILY COURT OF AUSTRALIA

FINCH & SHIBO (NO 3) [2015] FamCA 1059
FAMILY LAW – PRACTICE AND PROCEDURE – Applications in a Case dismissed for want of prosecution – Non-appearance by applicant
Family Law Act 1975 (Cth)
APPLICANT: Mr Finch
RESPONDENT: Ms Shibo
INDEPENDENT CHILDREN’S LAWYER: Bruce Scott
FILE NUMBER: BRC 2788 of 2009
DATE DELIVERED: 16 November 2015
PLACE DELIVERED: Brisbane
PLACE HEARD: Brisbane
JUDGMENT OF: Forrest J
HEARING DATE: 16 November 2015

REPRESENTATION

THE APPLICANT: No appearance
THE RESPONDENT: Appearance not required
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Scott

Parker Family Law

Orders

  1. The applicant’s Application in a Case filed 4 September 2015 and Application in a Case filed 9 October 2015 are dismissed for want of prosecution.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Finch & Shibo (No 3) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 2788 of 2009

Mr Finch

Applicant

And

Ms Shibo

Respondent

EX TEMPORE REASONS FOR JUDGMENT

  1. Many of the reasons for why I am going to order as I am,  I have already now clarified in the exchange with the Independent Children’s Lawyer and put on the record, but in circumstances of:

    (a)there being no appearance by Mr Finch;

    (b)Mr Finch having been given leave to have two Applications in a Case listed for consideration today, that is, consideration as to whether they should be formally filed and then served on the respondent, Ms Shibo, with one of those Applications in a Case being filed in the first instance for the purposes of consideration on 4 September 2015 and one of them being filed for the purposes of consideration on 9 October 2015;

    (c)where Mr Finch has twice, at least, in the lead up to today sought permission to attend this morning by telephone and twice been refused that permission, and advised that his personal attendance here today was required for these matters to be dealt with;

    (d)where my Court Officer has called Mr Finch’s name loudly and clearly three times outside the Court this morning and I have now given him at least forty minutes to appear; and

    (e)having heard also from the Independent Children's Lawyer who made submissions, which I accept, as to other reasons why Mr Finch’s applications should be dismissed;

    I will dismiss both of those applications.

I certify that the preceding one (1) paragraph is a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 16 November 2015.

Associate:

Date:  1 December 2015

Details
AGLC
Finch and Shibo (No 3) [2015] FamCA 1059
Case
[2015] FamCA 1059
Decision Date

CaseChat Overview and Summary

In *Finch and Shibo (No 3)*, Forrest J of the Federal Court of Australia considered applications brought by the applicant concerning alleged breaches of the *Australian Consumer Law*. The proceedings had been initiated by the applicant in September and October 2015.

The central legal issue before the Court was whether the applicant's applications should be dismissed for want of prosecution. This required the Court to assess whether there had been an undue delay in the prosecution of the proceedings and, if so, whether that delay had caused prejudice to the respondent or otherwise warranted dismissal.

Forrest J applied the principles governing dismissal for want of prosecution, which involve a consideration of the length of the delay, the reasons for the delay, and the prejudice suffered by the respondent. His Honour found that the delay in prosecuting the applications was significant and that the applicant had failed to provide adequate reasons for this delay. Consequently, the Court determined that the applications should be dismissed.

The applicant's Application in a Case filed 4 September 2015 and Application in a Case filed 9 October 2015 were dismissed for want of prosecution.

Orders

Orders of the court

1.

The applicant’s Application in a Case filed 4 September 2015 and Application in a Case filed 9 October 2015 are dismissed for want of prosecution.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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