Gill v Karan Grewal Pty Ltd (No.2)
[2019] FCCA 2025
•26 July 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GILL v KARAN GREWAL PTY LTD (No.2) | [2019] FCCA 2025 |
| Catchwords: PRACTICE AND PROCEDURE – Application for an extension of time to file a statement of claim – application for dismissal because of non-compliance – extension of time granted – springing order made. |
| Legislation: Australian Human Rights Commission Act 1986 (Cth) Federal Circuit Court Rules 2001 (Cth), rr.1.05, 3.05, 13.03A, 13.03B, 16.05 Federal Court Rules 2011 (Cth), r.1.32 |
| Cases cited: Gill v Karan Grewal Pty Ltd (Trading as Curry Palace Indian Restaurant) [2018] FCCA 3549 McGraw-Hill Financial, Inc v Clurname Pty Ltd [2017] FCAFC 211 |
| Applicant: | RAJWINDER KAUR GILL |
| Respondent: | KARAN GREWAL PTY LTD (ACN 604 162 576) TRADING AS CURRY PALACE INDIAN RESTAURANT |
| File Number: | PEG 279 of 2017 |
| Judgment of: | Judge Kendall |
| Hearing date: | 23 July 2019 |
| Date of Last Submission: | 23 July 2019 |
| Delivered at: | Perth |
| Delivered on: | 26 July 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr D Singh |
| Solicitors for the Applicant: | Friedman Lurie Singh & D’Angelo |
| Counsel for the Respondent: | Mr R Singh |
| Solicitors for the Respondent: | Chapmans Barristers & Solicitors |
ORDERS
The applicant file and serve a statement of claim by 16 August 2019.
If the applicant fails to comply with Order 1 of these orders, then the application filed 14 July 2017 be dismissed under r.13.03B(1)(c) of the Federal Circuit Court Rules 2001 (Cth).
The application in a case filed 21 January 2019 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 279 of 2017
| RAJWINDER KAUR GILL |
Applicant
And
| KARAN GREWAL PTY LTD (ACN 604 162 576) TRADING AS CURRY PALACE INDIAN RESTAURANT |
Respondent
REASONS FOR JUDGMENT
Introduction
Before the Court are two interlocutory applications as follows:
a)an application for dismissal of the substantive proceeding pursuant to rr.13.03A and 13.03B of the Federal Circuit Court Rules 2001 (Cth) (the “Rules”) as filed by the respondent, Karan Grewal Pty Ltd ACN 604 162 576 trading as Curry Palace Indian Restaurant, on 21 January 2019 (the “Dismissal Application”); and
b)an application for an extension of time in which to comply with orders made by a judge of this Court on 7 December 2018 as filed by the applicant, Rajwinder Kaur Gill, on 12 April 2019 (the “Extension Application”).
The Court notes that on 7 December 2018, Judge Lucev delivered reasons for judgment in Gill v Karan Grewal Pty Ltd (Trading as Curry Palace Indian Restaurant) [2018] FCCA 3549 (“Gill No.1”). The factual and procedural background to the substantive application are summarised in His Honour’s reasons at [2]-[7]. Those paragraphs, and the reasons generally, should be read in order to understand the context giving rise to this matter.
Background to the present applications
The background to the present applications is taken from the affidavit of Dara Singh sworn 21 January 2019 and the affidavit of Rajbir Singh affirmed 12 April 2019 (the “Singh Affidavit”). The factual matters in these affidavits are not in contention and provide relevantly as follows.
On 7 December 2018, Judge Lucev made orders (the reasons for which were explained in Gill No.1) as follows ( the “2018 Orders”):
1. Paragraph 9 of the Amended Application is to be struck out, but otherwise the Respondent’s Application in a Case filed 14 March 2018 is dismissed.
2. The Applicant to file and serve a Statement of Claim by 18 January 2019.
3. The matter is to be listed for further directions on a date to be fixed on written application by either party to the docket Judge’s Chambers, such application to be made not before 21 January 2019.
4. The applicant is to pay the respondent’s costs in the sum of $2,987 by 7 January 2019.
Those orders were made upon hearing an application brought by the respondent for summary dismissal of the substantive application. That application argued that the substantive application failed to establish a cause of action and therefore had no reasonable prospect of success.
While His Honour declined to order that the substantive application be summarily dismissed, it is apparent from Gill No.1 that the application suffered from quite significant pleading defects that required attention and considerable work.
No statement of claim was filed by 18 January 2019 as per order 2 of the 2018 Orders.
The Dismissal Application relevant to this hearing was filed on 21 January 2019 (not 24 January 2019 as stated in the Singh Affidavit). It sought the following order:
The Application herein be dismissed with costs pursuant to Orders 13.03A and 13.03B of the Federal Court Rules 2001 as a consequence of the Applicant’s failure to comply with Orders 2 and 4 of the Order of the Court dated 7 December 2018.
The Dismissal Application was sought on the basis that the applicant had failed to file the statement of claim and failed to pay the respondent’s costs awarded in the 2018 Orders. Clearly, the reference in the Dismissal Application to the “Federal Court Rules” is meant to refer to the “Federal Circuit Court Rules”.
It appears that on 23 January 2019 the applicant lodged a statement of claim. That statement of claim was, however, rejected on the basis that it was filed after the date mandated by the 2018 Orders. It was filed 4 days late.
In relation to the late filing, the applicant’s lawyer deposed that this was entirely the result of a clerical and administrative error on the part of an employee in their offices. This error was again highlighted by the applicant’s solicitor in oral submissions to this Court.
The applicant’s lawyer sent correspondence to the respondent’s legal representative on 24 January 2019 seeking consent for the time in which to file the statement of claim to be extended to 24 January 2019.
No response was received to that request until the applicant’s lawyer was served with the Dismissal Application on 31 January 2019.
The matter then came on for directions on 29 March 2019. Judge Lucev made the following orders (the “March Orders”):
1. The applicant file and serve any application for the time prescribed in order 2 of the Courts orders of 7 December 2018 to be extended by 12 April 2019.
2. Any other Application in a Case by the applicant be filed and served by 12 April 2019.
3. Any affidavits in support of any applications filed pursuant to orders 1 and 2 be filed and served by 12 April 2019.
4. The respondent’s Application in Case filed 21 January 2019 be adjourned part heard.
5. The costs of the respondent’s appearance today be paid by the applicant in the sum of $305.00 by 12 April 2019.
6. Any application filed in accordance with orders 1 and 2 and the respondent’s adjourned Application in a Case respectively be listed for further hearing at 10am on 17 April 2019.
On 12 April 2019, the applicant filed the Extension Application. The Extension Application initially sought two orders:
1. The time prescribed in Order 2 of His Honour Judge Lucev’s Orders made on 7 December 2018, namely that the Applicant file and serve a Statement of Claim by 18 January 2019, be extended to 12 April 2019.
2. The time to pay the sum referred to in Order 4 of His Honour Judge Lucev’s Orders made on 7 December, namely the Applicant to pay the Respondent’s costs in the sum of $2,987.00 by 7 January 2019, be deferred until the conclusion of the final hearing of these Proceedings.
The Extension application was supported by the Singh Affidavit and the affidavit of the applicant affirmed 12 April 2019.
At hearing, the applicant’s lawyer indicated that order 2 was no longer pressed. Hence, the sole issue relevant to the Extension Application is whether the time for filing the statement of claim should be extended.
The matter came back on for directions on 17 April 2019 (the “April Orders”). The following orders were made:
1. The applicant’s Application in a Case filed 12 April 2019 be listed for Hearing at 10:15am on 8 July 2019.
2. The respondent’s Application in a Case filed 21 January 2019 be adjourned to 10:15am on 8 July 2019.
3. The applicant file and serve an outline of submissions in support of the Application in a Case by 17 May 2019.
4. The respondent file and serve an outline of submissions in opposition to the Application in a Case by 17 June 2019.
5. Costs of today be reserved.
On 17 June 2019, the respondent filed written submissions in accordance with the April Orders.
For administrative reasons, the Court was required to relist the two applications for hearing to 23 July 2019. The Court heard submissions from both parties.
On the morning of the hearing the applicant’s lawyer filed a brief outline of submissions. At hearing, an apology was offered for the late provision of these submissions. It is noted, however, that the applicant’s lawyer provided no explanation for the late filing – save as to say that they were “only short submissions”. The respondent’s representative indicated that, although he had only received the submissions shortly prior to the hearing, he was content to address those submissions at the hearing. The Court thanks the respondent’s representative for his co-operation and assistance in that regard.
The respondent also filed two further affidavits:
a)an affidavit of Dara Singh sworn 17 June 2019; and
b)a further affidavit of Dara Singh sworn 27 June 2019 (“Third Dara Singh Affidavit”).
Applicant’s submissions
The written submissions from the applicant (received on the morning of the hearing) can be summarised as follows:
a)rule 16.05(2)(c) of the Rules applies in relation to orders 2 and 4 of the 2018 Orders and which the applicant now seeks to vary;
b)the circumstances of this matter require the Court to exercise its discretion in granting the applicant the order she now seeks in the Extension Application;
c)section 15 of the Federal Circuit Court of Australia Act 1999 (Cth) allows the Court to make any orders it thinks appropriate;
d)if the applicant is not granted the order she is seeking, the prejudice caused to her under the circumstances far outweighs any prejudice which is caused to the respondent;
e)if the applicant fails in her Extension Application then it potentially precludes her from re-agitating her claim and essentially extinguishes her claim against the respondent under the Australian Human Rights Commission Act 1986 (Cth) (the “AHRC Act”);
f)the applicant does not have the financial means available to re-commence any subsequent claims against the respondent if that option was available to her;
g)it is a high bar for the respondent to cross over if it is to succeed in opposing the Extension Application – a high bar which, the applicant submits, the respondent cannot cross over;
h)if the applicant’s matter was to proceed to a final hearing then she has reasonable prospects of success; and
i)each case turns on its own facts.
As is relevant to the Extension Application as it now stands, the Singh Affidavit relevantly noted as follows:
a)the reason for the statement of claim being filed late was because of a clerical and administrative error. It was of no fault of the applicant, rather the law firm she had engaged on her behalf;
b)there are processes in place at the law firm to ensure that clerical errors such as occurred here do not occur; however, those processes broke down in this instance; and
c)as soon as the applicant’s lawyer was aware of what occurred he made reasonable attempts to resolve the matter by seeking consent from the respondent.
As is relevant to the Extension Application as it now stands, the applicant’s affidavit provides:
a)as a result of her son’s medical condition, in August 2018 her and her family moved to Brisbane in order to allow him to be treated; and
b)while it has been difficult to provide her lawyer with instructions she genuinely want to pursue her claim and wants justice done.
At hearing, the applicant’s lawyer did not substantially expand upon his written submissions or what was contained in the affidavits in support. He simply sought to emphasise that it was in the interests of justice to grant the Extension Application.
The applicant’s lawyer referred the Court to the decision in McGraw-Hill Financial, Inc v Clurname Pty Ltd [2017] FCAFC 211 at [25] (“McGraw-Hill”). He referred to the applicant being unable to re-agitate her claim by virtue of the AHRC Act, and estoppel generally, if the Court refused to grant the extension and dismiss the application. Finally, noting that there were some “slips” in the statement of claim, he stated that it was nonetheless adequately particularised and was sufficient for the respondent to be able to put on a response – particularly in circumstances where the complaint the subject of the substantive application had been through conciliation at the Australian Human Rights Commission and through a mediation in this Court.
Respondent’s submissions
In written submissions filed on 17 June 2019, the respondent submitted as follows:
a)the Extension Application should be dismissed because the statement of claim is defective in that:
i)it makes numerous references to a “Second Respondent’’ when there is no second respondent in this proceeding;
ii)the instances of “duty of care” alleged in [29(a)-(e)] of the statement of claim relate to a common law negligence claim as opposed to a discrimination claim as is before this Court;
iii)the allegations of breach of statutory duties are devoid of any particulars; and
iv)the applicant has not particularised any alleged loss or damage she claims to have suffered.
In the Third Dara Singh Affidavit it was highlighted that as of 27 June 2019, and following correspondence being sent to the applicant, the costs awarded against the applicant in the March Orders had still not been paid.
At hearing, the legal representative for the respondent also stressed that the merits of the claim generally were very weak, such that an extension of time should not be provided. He referred specifically to the remarks in Gill No.1 that an arguable claim needed to be properly pleaded.
In respect of the Dismissal Application, the legal representative for the respondent noted that there was a long history of non-compliance in relation to orders made and a blatant disregard of the Court’s orders as noted in Gill No.1. It was submitted that the applicant had not complied with Court orders in respect of costs (an issue which, despite the applicant now abandoning her application for an extension in which to pay those costs, evidences non-payment and non-compliance). The respondent referred to the applicant’s failure to file written submissions in relation to the present application as yet another failure to “do the right thing” and again relied on the lack of merit in the statement of claim to suggest that the applicant’s claim should be dismissed. Finally, reference was also made to the prejudice the respondent has suffered overall.
Consideration
Extension Application
The Court has the power under r.3.05 of the Rules to extend the time for complying with an order. This is a discretionary power.
It is now well accepted that in determining whether an extension of time should be granted the Court should look at:
a)the length of and reason for the delay;
b)any prejudice suffered by the parties; and
c)the merits of the claim generally.
(Hunter Valley Developments Pty Ltd v Cohen (1984) 58 ALR 305)
Here, the applicant is seeking an extension of time in which to file the statement of claim.
The Court notes the applicant’s reliance on the Federal Court Rules 2011 (Cth) (the “FC Rules”), in particular r.1.32, which provides:
The Court may make any order that the Court considers appropriate in the interests of justice
Rule 1.32 of the FC Rules does not “apply” to the practice and procedure in this Court (r.1.05(3) of the Rules). Nonetheless, the Court may, under r.1.05(2) of the Rules, have regard to the FC Rules where it considers the Rules to be insufficient.
Here, the Court does not consider the Rules to be insufficient for the purposes of the Extension Application.
Rule 3.05 expressly provides the power to extend time, and the principles identified above have long been applied (albeit in the context of migration proceedings under s.477 of the Migration Act 1958 (Cth) when considering if it is “necessary in the administration of the interests of justice”) to grant the extension of time sought.
Insofar as McGraw-Hill is relevant to the Court’s consideration, the Court is mindful of the obligations to conduct proceedings that facilitate the just resolution of disputes according to law and to do so as quickly, inexpensively and efficiently as possible.
The delay in the filing of the statement of claim was four days. The delay in filing an application for an extension of time was, however, lengthy. It was not until ordered by the Court to do so, and in that case on the last day in which the Court provided the applicant time to lodge the Extension Application, that the application for an extension of time was filed. Nonetheless, the applicant sought to file the statement of claim only four days after the time allowed in the 2018 Orders. This delay does not weigh against the granting of the time extension sought.
The explanation provided for the delay (ie, clerical error) was not challenged. It is also noted that attempts were made to resolve the issue once the error was identified. While the explanation provided is less than satisfactory, it is noted that the error was not the fault of the applicant. It was entirely the fault of her lawyers, who failed to act in her best interests. This fact weighs in favour of an extension being granted. The Court is most reluctant to penalise an applicant who is not legally trained for the mistakes of her lawyers.
At hearing, the legal representative for the respondent claimed that there has been considerable prejudice to the respondent arising from the manner in which this case has proceeded. It was stressed that in the absence of a clear statement of claim the case the respondent is required to meet is not evident.
Although sympathetic to the frustrations experienced by the respondent, the Court notes that this case falls under the Court’s human rights jurisdiction and that, as such, caution should be exercised when determining whether to summarily dismiss a substantive application of this sort (addressed in more detail below). The same can be said in determining whether to grant an extension of time in which to properly prosecute the claim.
On balance, the Court believes that the prejudice to the applicant, particularly in circumstances where the default (and need for the Extension Application in respect of the statement of claim) was not her own, outweighs any prejudice to the respondent and weighs in favour of an extension being granted to file the statement of claim.
Having so found, the Court must now assess the merits of the claim as pleaded in the proposed statement of claim. It was noted in Gill No.1 at [46] that the applicant’s lawyer appeared “unfamiliar with the necessity to properly plead discrimination claims”. His Honour suggested that the assistance of Counsel might be necessary.
Having reviewed the statement of claim, a number of misnomers are identified:
a)there is reference to a second respondent when there is in fact no second respondent in these proceedings. This was a matter which was identified in Gill No.1 at [36], where the application made allegations against the director of the respondent, as opposed to the respondent. Plainly there is no second respondent to these proceedings and any references to the “second respondent” would be liable to be struck out if the statement of claim were allowed to be filed. This is one of the “slips” the applicant’s lawyer referred to in oral submissions to this Court;
b)at [20] a statement is made that the “Second Respondent threatened the Applicant that unless she was able to continue her normal duties he would terminate her employment and her visa would also be cancelled”. At [47] in Gill No.1, reference was made to the need for such a statement, in very similar terms, to be “properly pleaded and particularised”. Clearly, the drafter of the statement of claim has not noted these comments and has again made a broad assertion without providing particulars;
c)at [29], the statement of claim refers to particulars of the “Duty of Care” that was allegedly owed to the applicant. The relevance of these matters to a discrimination claim are unclear and are more suited to a negligence claim (as the respondent submits) or work health and safety legislation;
d)the applicant has not pleaded particulars of any comparator for the purpose of s.5 of the Disability Discrimination Act 1992 (Cth) (the “DD Act”) and has not particularised the facts which are said to constitute a requirement or condition that was unreasonable as provided in s.6 of the DD Act;
e)the applicant has pleaded that the respondent breached s.11 of the DD Act because it caused the applicant to suffer an “unjustifiable hardship”. Section 11 of the DD Act provides no more than a definition of “unjustifiable hardship” for the purposes of providing an exception (or defence in some sense) to persons found to have discriminated against an individual;
f)when pleading the breaches of the relevant provisions of the DD Act and the Sex Discrimination Act 1984 (Cth), the applicant has done no more than paraphrase the legislative provisions with the inclusion of “applicant” and “pregnancy”. There has been no attempt to particularise;
g)the applicant pleads that she was discriminated against on the grounds of her disability and pregnancy by way of her being dismissed from her employment. In Gill No.1 at [29]-[33] Judge Lucev found that any alleged discrimination on the basis of the applicant’s termination was outside the parameters of the original complaint and not within the jurisdiction of this Court to consider. That it has been pleaded again and despite this finding is “problematic”, to say the least; and
h)the applicant pleads that she has and continues to suffer “loss and damage”. Despite this, there are no particulars as to the quantum of loss and damage already suffered, or how that will be calculated and why the applicant continues to suffer loss and damage. While quantum is ultimately a matter for the Court, there is still a need for some particularisation in relation to this issue in the pleadings before this Court.
Clearly, there are a number of deficiencies in the statement of claim that the applicant now seeks to file late.
At hearing, the lawyer for the applicant submitted that the respondent had “cherry-picked” deficiencies in the statement of claim. While he accepted that references to the “second respondent” were incorrect, it was submitted this error could be easily remedied. Further, it was stressed that the statement of claim is “sufficient” to enable the respondent to file a response.
The Court, like Judge Lucev in Gill No.1, finds that there is an arguable claim here, albeit poorly articulated. Various defects are noted above.
The claim here is one that arises within the context of discrimination legislation. The Court is not minded to refuse the application for an extension where there is, arguably, a claim that arises.
Noting the inherent deficiencies in the claim as articulated, the Court will grant the applicant until 16 August 2019 to file a statement of claim.
In light of the above, an extension to comply with order 2 of the 2018 Orders will be granted.
Dismissal Application
Rules 13.03A and 13.03B of the Rules provide as follows:
13.03A When a party is in default
(1) For rule 13.03B, an applicant is in default if the applicant fails to:
(a) comply with an order of the Court in the proceeding; or
(b) file and serve a document required under these Rules; or
(c) produce a document as required by Part 14; or
(d) do any act required to be done by these Rules; or
(e) prosecute the proceeding with due diligence.
…
13.03B Orders on default
(1) If an applicant is in default, the Court may order that:
(a) the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the applicant; or
(b) a step in the proceeding be taken within the time limited in the order; or
(c) if the applicant does not take a step in the time mentioned in paragraph (b)--the proceeding be stayed or dismissed, as to the whole or any part of the relief claimed by the applicant.
There is no dispute that the applicant has failed to comply with the 2018 Orders. This non-compliance amounts to a “default” under r.13.03A(1) of the Rules and enlivens the Court’s power to dismiss the proceeding under r.13.03B.
The Court notes the summary of the principles governing the exercise of r.13.03B in Ellis v Wadjemup Trading Pty Ltd ATF Wadjemup Unit Trust T/A Rottnest Express & Ors [2017] FCCA 88 at [26]-[32] as follows:
The test for dismissal for non-compliance
26. Rule 13.03B(1)(a) of the FCC Rules requires the Court to objectively assess all of the circumstances and to determine if the non-compliance is sufficiently serious, at this stage, to warrant dismissal of the application for default in failing to comply with orders of the Court: Wintle v RUC Cementation Mining Contractors Pty Ltd [2012] FMCA 140 at [21] per Lucev FM (“Wintle”). In Wintle at [21] per Lucev FM the then Federal Magistrates Court (“FM Court”) took into account in objectively assessing all of the circumstances (and in determining to give Mr Wintle a further opportunity to put his claim in proper order):
a. that it was the first occasion on which Mr Wintle had not complied with orders of the FM Court;
b. that Mr Wintle was self-represented;
c. a submission (to which “some regard” was had) that Mr Wintle did not understand what was required of him by the relevant orders; and
d. the “exceptional caution” exercised when determining whether to dismiss claims containing allegations of unlawful discrimination (and citing in that regard Oorloff & Anor v Lee & Ors [2004] FMCA 893 at [49] per Walters FM and Portuguese Cultural and Welfare Centre Inc v Australian Media and Communications Authority [2011] FMCA 144; (2011) EOC 93-600 at [116] per Lucev FM).
27. This Court has more recently observed that the exercise of the discretion to dismiss for non-compliance with a Court’s orders is not commonplace and, further, that orders under r.13.03B(1) of the FCC Rules ought to be exceptional: Rothnie v St John of God Hospital (Subiaco) [2014] FCCA 159 at [20] and [28] per Judge Lucev.
28. In Lenijamar Pty Ltd v AGC (Advances) Ltd [1990] FCA 520; (1990) 27 FCR 388; (1990) 98 ALR 200; [1991] ATPR 41-082 (“Lenijamar”) the Full Court of the Federal Court established principles concerning applications to dismiss a proceeding based on non-compliance with court orders.
29. In Lenijamar the Full Court of the Federal Court considered the discretionary power to make orders under then O.10 r.7 of the then Federal Court Rules 1976 (Cth) (“1976 FC Rules”). That order was in substantially the same terms as r.13.03B(1) of the FCC Rules. After making some general observations about the scope of O.10 r.7 of the 1976 FC Rules, the majority of the Full Court of the Federal Court in Lenijamar FCR at 396 per Wilcox and Gummow JJ cautioned that:
We would not wish our observations to cause respondents to apply for dismissal of proceedings simply because there has been a non-compliance with a direction by the applicant, even though it does not cause or indicate a continuing problem in preparing the matter for an early trial.
30 The majority of the Full Court of the Federal Court in Lenijamar observed that whilst it was undesirable to exhaustively outline the circumstances in which the power under O 10 r.7 of the 1976 FC Rules would be appropriately exercised, two situations were obvious candidates for the exercise of the power: Lenijamar FCR at 396 per Wilcox and Gummow JJ.
31 The first situation outlined in Lenijamar arises where there has been a history of non-compliance by an applicant to indicate an inability or unwillingness to cooperate with the Court and the other party or parties in bringing the matter to a hearing within an acceptable period: Lenijamar FCR at 396 per Wilcox and Gummow JJ. Importantly, there is:
no requirement of intentional default or contumelious conduct, although the attitude of the applicant to the default and the Court’s judgement as to whether or not the applicant genuinely wishes the matter to go to trial within a reasonable period will usually be important factors in weighing the proper exercise of the discretion conferred by the rule.
Lenijamar FCR at 396 per Wilcox and Gummow JJ.
32. The second situation outlined in Lenijamar arises where, whatever an applicant’s state of mind or resources, the non-compliance is continuing and occasioning unnecessary delay, expense or other prejudice to the respondent: Lenijamar FCR at 396 per Wilcox and Gummow JJ.
It would have been futile for the Court to have granted the Extension Application in respect of the statement of claim if it was of the view that the substantive application should be dismissed for non-compliance.
Here, the Court is not satisfied that the Dismissal Application should be allowed.
The Court notes that the applicant’s approach (or rather her lawyer’s approach) is entirely unsatisfactory. Relevantly, in the course of this proceeding the applicant has:
a)failed to comply with an order of the Court (dated 30 June 2017) that a statement of claim be filed by 14 July 2017 (instead filing an amended application) and an order that an affidavit of service be filed by 21 July 2017;
b)filed an outline of submissions five days after the time allowed by an order of the Court (dated 16 March 2018). The Court notes that the respondent also filed their submissions five days after the time allowed;
c)failed to file the statement of claim in accordance with the 2018 Orders;
d)failed to pay costs as ordered in the 2018 Orders and March Orders; and
e)failed to file an outline of submissions in accordance with the April Orders.
The extent of non-compliance is not confined to a single occasion. It cannot be said that the applicant did not understand what was required by the various orders. She was legally represented. The various defaults are continuing (in relation to the costs orders) and have resulted in unnecessary delay, expense or other prejudice (non-compliance with filing documents) to the respondent (who, at this stage, is still not entirely clear about the case it has to meet).
The applicant (through her affidavit) has, however, indicated that wishes to pursue the matter. Further, the applicant’s lawyer did, in respect of the default the subject of the Dismissal Application, seek to co-operate with the respondent by seeking consent (albeit after the Dismissal Application was filed) in an effort to reduce the expense that the present course has undoubtedly incurred.
It is clear that the applicant’s state of mind and financial resources are not optimal at the present stage. It is also clear that the applicant has had limited contact with her lawyers. The applicant has said that it is “difficult” for her provide instructions and to contact her lawyer. She does not appear to have been well served by her lawyers to date.
In light of these difficulties, and given the nature of the substantive application (being a human rights application), the Court is not prepared to dismiss the matter under r.13.03B(1)(a) of the Rules. The Court will, however, make an order under r.13.03B(1)(c) that in the event the applicant fails to file a statement of claim by 16 August 2019 the proceedings be dismissed.
Conclusion
The Court has concluded that an extension of time should be granted to the applicant to file a statement of claim by 16 August 2019.
In the event this statement of claim is not filed, the proceedings will stand dismissed.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 26 July 2019
10
8