Henry v Sandlewood Aboriginal Projects Limited (No 1)
[2019] FCA 2060
•13 September 2019
FEDERAL COURT OF AUSTRALIA
Henry v Sandlewood Aboriginal Projects Limited (No 1) [2019] FCA 2060
File number: QUD 280 of 2017 Judge: RARES J Date of judgment: 13 September 2019 Legislation: Federal Court of Australia Act 1976 (Cth) ss 31A, 37M
Federal Court Rules 2011 r 5.32
Cases cited: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
Expense Reduction Analysts Group Pty Limited v Armstrong Strategic Management and Marketing Pty Limited (2013) 250 CLR 303
Sali v SPC Ltd (1993) 116 ALR 625
Tamaya Resources Limited (in liq) v Deloitte Touche Tohmatsu (2016) 332 ALR 199
Date of hearing: 13 September 2019 Registry: Queensland Division: General Division National Practice Area: Native Title Category: No Catchwords Number of paragraphs: 13 Counsel for the Applicants: Mr P Somers Solicitor for the Applicants: Trevor Hauff Lawyers Counsel for the First Respondent: Mr D Atkinson QC Solicitor for the First Respondent: DLA Piper Australia Counsel for the Second Respondent: Mr V D Sternbeck Solicitor for the Second Respondent: Irish Bentley Lawyers Counsel for the Third, Fourth and Fifth Respondents: The Third, Fourth and Fifth Respondents did not appear Counsel for the Sixth Respondent: Mr J Waters Solicitor for the Sixth Respondent: Just Us Lawyers Counsel for the Intervener: Ms H Blattman Solicitor for the Intervener: Crown Solicitor ORDERS
QUD 280 of 2017 BETWEEN: BEATRICE MAUD HENRY
First Applicant
ELIZABETH JOHNSTON
Second Applicant
GREGORY EMMERSON (and others named in the Schedule)
Third Applicant
AND: SANDLEWOOD ABORIGINAL PROJECTS LIMITED ACN 095 897 565
First Respondent
RUSSELL DOCTOR
Second Respondent
JASON JARRO (and others named in the Schedule)
Third Respondent
JUDGE:
RARES J
DATE OF ORDER:
13 SEPTEMBER 2019
THE COURT ORDERS THAT:
1.The adjournment application be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)RARES J:
On 21 June 2019, the applicants filed an interlocutory application for summary judgment under s 31A of the Federal Court of Australia Act 1976 (Cth) or, alternatively, for judgment in default under r 5.23(2)(d) of the Federal Court Rules 2011 against Russell Doctor, Jason Jarro and Kerry-Anne Lacey, who are respectively the second, third and fourth respondents. Mr Doctor was not named in the prayer in the interlocutory application as a person against whom relief was sought by reason of his default. However, Mr Doctor’s new solicitor did not oppose the applicants seeking default judgment against his client when the interlocutory application was argued today.
The adjournment application
(a) Mr Doctor’s submissions
Today, Mr Doctor’s solicitor spoke to his written submissions and a draft interlocutory application that he provided to the Court and the parties late yesterday, in which Mr Doctor, first, seeks an adjournment of the hearing of today’s interlocutory application and, secondly, if that is unsuccessful, opposes the relief sought in it and seeks to file an amended defence. As Mr Doctor’s solicitor accepted, there is no evidence at all from Mr Doctor or otherwise in support of either application, in particular, the application for adjournment.
Pursuant to the orders made on 2 August 2019, the applicants filed a further amended statement of claim in which Bigambul Limited was joined as the sixth respondent. Apart from the addition of Bigambul as a party, the only amendment to the pleading was the addition at its end of a further four paragraphs that, in effect, alleged that Bigambul had been knowingly involved in the breaches of fiduciary duty already alleged against, among others, Mr Doctor, in the previous version of the statement of claim.
Mr Doctor wishes, if an adjournment is granted, to be let in to defend the proceeding and to file a defence to the further amended statement of claim. Because he has only been retained this week, Mr Doctor’s new solicitor has not been able to absorb the extensive evidentiary and other material, prepare any new defence for Mr Doctor, or indicate the extent to which anything could be said in such a new defence that might cure the deficiencies of the defence that I struck out, including its lack of proper particularisation to support the allegations in it that complied with the Rules.
Although Mr Doctor’s application to file a defence is not strictly an application to amend, that, in substance, is what it is. This is because he seeks to have placed on the Court record a defence that is not presently there, which necessarily will be in an altered form from what that which I struck out.
(b) Consideration
Ordinarily, where the Court is asked to exercise a discretion to allow an amendment to pleadings or to grant an adjournment to a party, an explanation for the delay of the party in bringing such an application is required. In Tamaya Resources Limited (in liq) v Deloitte Touche Tohmatsu (2016) 332 ALR 199 at 226 [153]-[160], Gilmour, Perram and Beach JJ set out the principles applicable to the consideration of the grant of an application for an amendment in terms that I consider to be apposite to the present application to adjourn the proceeding in order for Mr Doctor to rectify his default in the proper pleading of a defence. Their Honours identified that the explanation called for, necessarily, will depend upon the circumstances of each particular case but said that, ordinarily, it should be given by or on behalf of the moving party. In some cases, affidavit evidence may not be necessary and in others an explanation by the party’s lawyer may be acceptable. However, as their Honours pointed out at [155]:
It must be borne in mind that the explanation required is that of the moving party, not merely their solicitor or counsel. The client may very well know of matters relevant to the explanation for delay which are not known by the lawyers.
(emphasis added)
Here, Mr Doctor’s solicitor has said, as his previous solicitor had told me earlier, that Mr Doctor has had some illness issues. There is no medical evidence as to the way in which any such illness may, or may not, have affected his ability to act in his own interest (before or) after I struck out his defence on 28 May 2019 with effect from 8 April 2019. If I were to allow Mr Doctor’s application to adjourn the hearing of the interlocutory application, the consequence would be that the other parties who are ready for it to be heard today and disposed of will be subjected to an adjournment. Mr Doctor has not said that he is prepared, or in a position, to pay any costs thrown away as a result of any adjournment. But, in any event, a party’s ability to pay costs or to meet an order for costs is not, anymore, necessarily determinative of the exercise of the Court’s discretion in the case management of proceedings.
An adjournment, if granted, would entail that time I set aside today to hear the interlocutory application will be wasted, other litigants would have missed out on having their cases heard and, by reason of the state of my docket, I will not be in a position to deal with the interlocutory application for quite some time. Given my familiarity with the detail of the proceeding, ordinarily, it would not be appropriate to transfer the interlocutory application to another judge for an earlier hearing.
Gummow, Hayne, Crennan, Kiefel and Bell JJ in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 at 211 [93], cited with approval what Toohey and Gaudron JJ had said in Sali v SPC Ltd (1993) 116 ALR 625 at 636 (see also: Expense Reduction Analysts Group Pty Limited v Armstrong Strategic Management and Marketing Pty Limited (2013) 250 CLR 303 at 321-323 [51]-[57]), namely that case management reflected:
[t]he view that the conduct of litigation is not merely a matter for the parties but is also one for the court and the need to avoid disruptions in the court’s lists with consequent inconvenience to the court and prejudice to the interests of other litigants waiting to be heard…
In Expense Reduction 250 CLR at 323 [56], French CJ, Kiefel, Bell, Gageler and Keane JJ said of an analogue of what, relevantly here, s 37M of the Federal Court Act provides:
Parties continue to have the right to bring, pursue and defend proceedings in the court, but the conduct of those proceedings is firmly in the hands of the court. It is the duty of the parties and their lawyers to assist the court in furthering the overriding purpose.
Mr Doctor has done nothing in the course of this proceeding to advance it in a way that would move it in accordance with the overarching purpose in s 37M, being to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible. Indeed, what he has done has been to cause further expense, inefficiency and delay. Granting a further adjournment would simply protract this already lengthy proceeding against him in circumstances in which he has not been prepared to offer the Court any explanation at all for his belated application, other than through what his solicitor has been able to put to me from the bar table.
In my opinion, the interests of justice would not be served by the grant of an adjournment. I am not satisfied that Mr Doctor has made out any appropriate basis for an adjournment of this interlocutory application that has been set down for hearing today and where he is, and has been, in default since he failed properly to comply with the orders made on 25 March 2019 that extended the time for him to provide proper particulars, in accordance with the Rules, by 8 April 2019.
Conclusion
For these reasons, I refuse the application for adjournment.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate:
Dated: 6 December 2019
SCHEDULE OF PARTIES
QUD 280 of 2017 Applicants
Fourth Applicant:
PATRICIA CONLON
Fifth Applicant:
DIERDRE DAYLIGHT
Sixth Applicant:
GEORGE HOPKINS
Seventh Applicant:
WESTERN DOWNS GROUP LIMITED (ACN 166 757 384)
Respondents
Fourth Respondent:
KERRY-ANNE LACEY
Fifth Respondent:
LUCY DAVIS
Sixth Respondent:
BIGAMBUL LIMITED
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