Helm v Sapphireone Pty Ltd - [2023] FedCFamC2G 915

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Helm v Sapphireone Pty Ltd [2023] FedCFamC2G 915

File number(s): SYG 2940 of 2020

Judgment of: JUDGE LAING

Date of judgment: 6 October 2023

Catchwords: PRACTICE AND PROCEDURE – application for dismissal of the applicant’s application – whether proceedings should be dismissed for want of prosecution and/or failure to comply with orders of the Court – where proceedings were commenced in 2020 – where the applicant’s case had not meaningfully progressed in over a year – where the applicant’s solicitor on the last occasion had been unable to obtain instructions and the applicant did not subsequently respond to the foreshadowed dismissal application, or the application when made, prior to the morning of its hearing – where the applicant’s response gave the Court no confidence that the proceedings would be prosecuted in a timely fashion – order made that the proceedings be dismissed

Legislation:
Fair Work Act 2009 (Cth) s 570

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 192

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 13.04, 13.05

Cases cited:
Professional Administration Service Centres Pty Ltd v Commissioner for Taxation [2012] FCAFC 180; (2013) 295 ALR 52

Ryan v Primesafe [2015] FCA 8; (2015) 323 ALR 107

Trustee for The MTGI Trust v Johnston (No 2) [2016] FCAFC 190

Walker v Fedex Express Australia Pty Ltd (No 2) [2023] FedCFamC2G 160

Division: Division 2 General Federal Law

Number of paragraphs: 44

Date of hearing: 6 October 2023

Place: Sydney

Solicitor for the Applicant: Ms P Forster of Kennedys Law

Counsel for the Respondents: Mr N Furlan

Solicitor for the Respondents: Sasphire Legal
ORDERS

SYG 2940 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
LINDA MAXINE HELM

Applicant

AND:
SAPPHIREONE PTY LTD (ACN 003 419 930)

First Respondent

JOHN WILLIAM ADAMS

Second Respondent

ORDER MADE BY:

JUDGE LAING

DATE OF ORDER:

6 OCTOBER 2023

THE COURT ORDERS THAT:
1.The proceedings be dismissed pursuant to rr 13.04(1)(e) and 13.05(1)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
2.The costs of the application in a proceeding filed on 21 August 2023 be reserved.
3.The respondents have leave to file and serve an application for costs generally pursuant to s 570(2) of the Fair Work Act 2009 (Cth) in respect of the substantive proceedings, together with any supporting affidavits, by 27 October 2023.
4.The applicant has leave to file and serve any affidavits in response and submissions in relation to the costs argument by 17 November 2023.
5.The respondents have leave to file and serve any evidence in reply and written submissions in relation to the costs argument by 1 December 2023.
6.The matter be listed for hearing of any application for costs at 10.00 am on 13 December 2023.
7.Liberty to apply on three days’ notice.

Note: The form of the order is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] FedCFamC2G 915
Decision Date: 6 October 2023

CaseChat Overview and Summary

The matter of Helm v Sapphireone Pty Ltd was heard in the Federal Circuit and Family Court of Australia. The applicant, Helm, had commenced proceedings against Sapphireone Pty Ltd in 2020. However, there had been no meaningful progress in the case for over a year. The respondent applied for the dismissal of the proceedings due to the lack of prosecution and non-compliance with court orders. The court was required to determine whether the proceedings should be dismissed under the relevant rules and principles of law.

The court identified several legal issues that needed to be resolved, including the appropriate standard of proof for dismissing proceedings due to lack of prosecution, the extent of the applicant's responsibility to ensure that the proceedings are prosecuted diligently, and whether the applicant's failure to respond to the dismissal application justified the dismissal of the proceedings. The court considered the relevant statutory provisions, case law, and the circumstances of the case in making its decision.

The court held that the applicant had failed to prosecute the proceedings diligently, and that the lack of progress was not justified. The applicant's solicitor had been unable to obtain instructions, but the applicant did not respond to the court's directions or the dismissal application. The court found that the applicant's response did not provide sufficient confidence that the proceedings would be prosecuted in a timely fashion. The court held that the proceedings should be dismissed for want of prosecution and failure to comply with orders of the Court. The court considered the principles of fairness and the efficient use of judicial resources in making its decision.

The court ordered that the proceedings be dismissed with costs. The court noted that the dismissal was without prejudice to the applicant's right to commence new proceedings if they were able to prosecute them diligently. The court emphasised the importance of parties taking their litigation obligations seriously and ensuring that proceedings are prosecuted in a timely and efficient manner.

Orders