HKA & ASM
[2003] FMCAfam 43
•1 April 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HKA & ASM | [2003] FMCAfam 43 |
| FAMILY LAW — Practice and procedure — “withdrawal of application with right of reinstatement” — meaning of discontinuance, withdrawal and removal in the Federal Magistrates Court — “right of reinstatement” does not exist. |
| Applicant: | HKA |
| Respondent: | ASM |
| File No: | (P)MLM 9783 of 2002 |
| Delivered on: | 1 April 2003 |
| Delivered at: | Melbourne |
| Hearing Date: | 3 February 2003 |
| Judgment of: | Walters FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Serra |
| Solicitors for the Applicant: | Lucas & Marshman |
| Counsel for the Respondent: | Mr Combes |
| Solicitors for the Respondent: | Brown & Proudfoot |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
(P)MLM 9783 of 2002
| HKA |
Applicant
And
| ASM |
Respondent
REASONS FOR DECISION
Background
The applicant is the paternal grandmother of the child K, born
6 January 1998. The respondent is K’s mother.
K lives with the respondent. The applicant has contact with her pursuant to orders made in this court on 16 July 2001 (“the Orders”).
On 26 November 2002, the respondent filed an application in which she sought the discharge of paragraph 2(b) of the Orders. This paragraph relates to an aspect of the applicant’s contact with K.
In December 2002, the applicant filed two form 49 contravention applications, alleging that the respondent did not permit her to have contact with K in accordance with the Orders.
The first court dates for the Applicant’s contravention applications were 11 and 18 February 2003. The first court date for the Respondent’s application was 3 February 2003
The proceedings came before me in the duty list on 3 February 2003. Both parties were represented by Counsel. Negotiations took place, as a result of which the proceedings comprising the two contravention applications and the respondent’s application filed 26 November 2002 were settled. The terms of the settlement were reduced to writing and signed by the parties (“the Minute”).
The Minute contains provisions discharging certain paragraphs of the Orders and making different contact orders in their place. Paragraphs 5 and 6 of the Minute, however, are as follows:
5.The respondent have leave to withdraw the form 49 applications filed 16 December 2002 and 19 December 2002 with a right of re-instatement.
6.All extant applications be otherwise dismissed and removed from the list of pending cases.
The terms of paragraph 5 of the Minute caused me discomfort. I asked Counsel for the parties to provide me with a short submission regarding the Court’s power to make the order.
Written Submission
By a joint submission dated 12 February 2003, Counsel for the parties argued that the proposed order “is entirely within the jurisdiction of the Court and is a just and efficient way to deal with the matter”.
The background to the proposed settlement was described in the submission as follows:
In this matter the (applicant) had issued two form 49s alleging breaches by the (respondent) of contact orders. The (respondent) had issued (an application) to end the (applicant’s) contact. The parties reached agreement in principle to vary the (applicant’s) contact, but the (respondent) was reluctant to consent to final orders while under threat from the form 49s. For her part the (applicant) was reluctant to consent to final orders if that involved an irrevocable withdrawal of her form 49 applications. Her concern was that further breaches were possible.
The parties sought that the Court allow (the applicant) to withdraw the form 49s but be permitted to have them dealt with in the future if there were further breaches.
Section 15 of the Federal Magistrates Act 1999 (“the FMA”) provides that:
The Federal Magistrates Court has power, in relation to matters in which it has jurisdiction, to:
(a) make orders of such kind, including interlocutory orders, as the Federal Magistrates Court thinks appropriate….
Other relevant provisions of the FMA include section 42 (Federal Magistrates Court to operate informally), section 43 (dealing with practice and procedure) and section 57 (proceedings not to be invalidated by formal defects or irregularities).
Section 81 of the FMA deals with the power of Federal Magistrates to make Rules relating to practice and procedure in the Court. Section 81(2) is as follows:
Rules of Court have effect subject to any provision made by any other Act, or by Rules or regulations under another Act, with respect to the practice and procedure in particular matters.
In their submission, Counsel for the parties referred to Rules 1.03(1) and 10.03 of the Federal Magistrates Court Rules 2001 (“the FMCR”). The former Rule states that the object of the FMCR is to assist the just, efficient and economical resolution of proceedings. The latter Rule states that, at the first court date, the Court may “remove the matter from the list”. I note that “matter” is not defined in the FMA or the FMCR. I note, as well, that Rule 10.03 is headed “Fixing Date for Final Hearing”, and contains four “options” available to the Court on “the first court date”. Rule 10.01 is broader, and deals with orders and directions that can be made on the first court date and, presumably, at other times as well – although the Division containing Rules 10.01, 10.02 and 10.03 is headed “First Court Date”.
The submission continued as follows:
It is a logical and inevitable corollary of a power to remove a matter from the list that the Court have (sic.) the power to restore the matter to the list. Removal from the list is distinct from dismissing the application in that no determination is made as to the merits of the application. No question of res judicata arises. The order allowing withdrawal with a right of re-instatement is interlocutory in nature.
In this case the applicant (with the consent of the respondent) seeks to withdraw her form 49 applications. What is sought in substance is the same as asking the Court to remove the matter from the list as envisaged in Rule 10.03. It may be that it is unnecessary to mention that there is a right of reinstatement since this logically follows from the fact that the proceedings have not been dismissed, but the right of reinstatement is stated for the avoidance of doubt.
Should the applicant reinstate the matter to the list at some future date, the Court would not be bound in any way as to how to deal with it. For example, if the restoration occurred several years in the future, the Court might dismiss the applications on the ground that the allegations were so old that they could not be properly determined.
Discussion
I am not persuaded by the submission. Clearly, the power to remove a proceeding from a list does indeed imply that the Court has the power to restore the proceeding to the same list. The fact of the matter is, however, that the withdrawal of an application is very different from the removal of a proceeding from a list.
“Proceeding” is defined in section 5 of the FMA as follows:
“proceeding” means a proceeding in court, whether between parties or not, and includes an incidental proceeding in the course of, or in connection with, a proceeding, and also includes an appeal
Rule 4.01(1) of the FMCR stipulates that, generally speaking, a proceeding “must be started by filing an application” in accordance with the relevant form.
It follows that a proceeding is likely to be different from the application by which it is commenced, and from subsequent documents (such as a response) which identify the orders sought by the parties.[1] In my opinion, a proceeding is an event (as it were), and is incorporeal. Ordinarily, an application and a response comprise documents filed as part of a proceeding – although both can certainly be made orally, if required. That which is included in a court list (for hearing or for mention) is the proceeding, and not the application by which it is commenced.
[1] See, generally, Cairns “Australian Civil Procedure” (4th Edition) at pp 79-81.
In Bennett (1985) FLC 91-617, the Full Court said (at page 79,994):
…the striking of a matter out of the list is not a dismissal of the application: it is merely the removal of a matter from the list of cases which are pending for hearing in a particular court…If it is desired to prevent the matter from ever being listed for hearing, the appropriate method is to apply that the application be dismissed or permanently stayed for want of prosecution.
In the context of the FMCR, the reference by the Full Court to “striking a matter out of a list” can only be interpreted as a reference to removing it from a list. There appears to be no material difference, for present purposes, between the word “matter” and the word “proceeding”[2]. Although the expression employed by the Full Court is common, and has the benefit of long years of use, I prefer the expression used in the FMCR. To strike a matter from a list is obviously very different from striking out a pleading or a claim, and the use of the word “remove” avoids any confusion that might otherwise arise.
[2] I also note the Full Court’s careful differentiation between “matter” and “application” in the passage referred to in paragraph 20 above.
Rule 10.01(2)(b) of the FMCR states that the Court may “…if no applicant appears, strike out or dismiss the application or make any other order that the Court … thinks fit” (emphasis added). The expression “to strike out” or its variants does not appear in any other place in the FMA or the FMCR.
Rule 1.04 of the FMCR states that the dictionary (which appears at the end of the FMCR) defines terms used in the FMCR. Included in the dictionary is the following definition:
Discontinuance, in relation to a proceeding, includes withdrawal from the proceeding.
I note that the words “withdraw” and “withdrawal” do not appear in any other relevant context in the FMA or the FMCR[3].
[3] Rule 9.03 deals with the withdrawal of a lawyer and Rule 15.31(3) permits a party (with the Court’s leave) to withdraw an admission deemed to have been made following the service of a notice to admit facts or documents.
It follows from the definition in the “dictionary” that a “withdrawal” is a form of “discontinuance”. The expression “withdrawal from the proceeding” is unfortunate. It seems to me, however, that it cannot comfortably refer to the withdrawal of a party or a legal practitioner from the proceeding, and that it could only refer to the concept of the withdrawal of the proceeding itself – or, perhaps, part of a proceeding.[4]
[4] See the discussion of the Victorian Supreme Court practice at paragraphs 49-51 below. If “withdrawal” in the FMCR dictionary definition of “discontinuance” refers to part only of a proceeding, then the definition makes more sense.
Part 13 of the FMCR is headed “Ending a Proceeding Early”. Generally speaking, the Part recognises only three ways in which a proceeding can be brought to an end prior to judgment. They are –
(a)by discontinuance;
(b)by the making of consent orders; or
(c)by summary disposal (or permanent stay or dismissal).
In addition to the options referred to in the preceding paragraph, and pursuant to Rule 10.01(2)(b)[5], the Court can “strike out or dismiss the application” on the first court date if the applicant fails to appear
[5] See above
Given that “withdrawal” is included in the definition of “discontinuance” in the FMCR dictionary, it seems to me that the provisions of Rule 13.01 are of most relevance. That Rule is as follows:
13.01Discontinuance
(1)A party may discontinue an application or response by filing a notice of discontinuance in accordance with the notice set out in Part 1 of Schedule 2.
(2)A notice of discontinuance may be filed:
(a)at least 14 days before the day fixed for the final hearing of the application; or
(b)with the leave of the Court or a Registrar, at a later time.
(3)However, a party may not file a notice of discontinuance without the leave of the Court or a Registrar if:
(a)in a proceeding under the Family Law Act:
(i) the proceeding relates to the property of a party; and
(ii) one of the parties dies before the proceeding is decided; or
(b)the proceeding is a creditor’s petition.
(4)A party filing a notice of discontinuance must, as soon as practicable, serve a copy of the notice on each other party in the proceeding.
I note that a distinction is drawn in Rule 13.01 between an application (or response) and a “proceeding”.
If withdrawing an application (assuming that such a procedure is permitted by the FMCR) has the same effect as discontinuing an application, then it is clearly a different process or procedure from simply removing a proceeding from the list of matters to be heard on a particular day. As I have already observed, removal of a proceeding from a list of proceedings or matters to be heard on a particular day is the same procedure as that discussed by the Full Court in Bennett as “striking a matter out of a list”. There is an obvious difference between removing or striking a proceeding (or matter) from a list (which procedure is purely procedural in nature, and does not purport to end the proceeding or affect the parties’ substantive rights in any way) and striking out or dismissing the application itself (which clearly is intended to bring the proceeding commenced by the application to an early end). To remove a proceeding from a list is to leave the application extant and intact, as it were. The proceeding commenced by it remains on foot, but without a hearing date.
If an application is discontinued, then the proceeding itself is no longer pending or extant (unless, for example, a response seeking different orders has been filed). True it is that the substantive rights of the parties have not been determined, and res judicata does not apply – but, for all that, the proceeding has come to an end. It can only be recommenced by the filing of a fresh application.[6]
[6] See, generally, Cairns “Australian Civil Procedure” (4th Edition) at pp 457-61.
In my opinion, the Rules do not permit the court to “reinstate” an application or a response that has been discontinued. Similarly, the court has no power to reinstate an application or response that has been withdrawn (assuming, again, that an application or response can be withdrawn). Clearly, the court does have the power to reinstate a proceeding that has been removed from the list of matters to be heard on a particular day (as that proceeding remains extant). Precise terminology is of importance. If an application is struck out, then, in my view, it cannot be reinstated – as the proceeding commenced by it has come to an end (assuming, of course, that no response has been filed). If the proceeding is simply struck from a list, then the proceeding can be reinstated (because, in this context, to strike or strike out means no more than “to remove”).
It follows from the above that there can be no such thing as a “right of reinstatement”. At most, the parties can apply to have a proceeding that has been removed or struck from a list to be returned to that list. They have no “right” to demand that such a reinstatement take place.
In Peters (1982) FLC 91-202, the Full Court of the Family Court of Australia considered the meaning of the expression “completed proceedings” in paragraph (ca) of the definition of “matrimonial cause” in the Family Law Act. The wife in that case had previously commenced proceedings for dissolution of marriage and property settlement in the South Australian Supreme Court under the Matrimonial Causes Act 1959. She later withdrew her petition for dissolution. The question for determination before the court was whether property proceedings which the wife subsequently sought to commence fell within the definition of “matrimonial cause” on the basis that they were “in relation to concurrent, pending or completed proceedings for principal relief between the parties”.
The Full Court recognised that the wife could only institute property proceedings under the Family Law Act if the withdrawn proceedings were to be regarded as “completed” within the meaning of paragraph (ca) of the definition of “matrimonial cause”. The Full Court continued (at page 77,068):
…the ordinary meanings of the words “withdrawn” and “completed” are quite distinct. A proceeding is completed by an order or by dismissal. A withdrawal, on the other hand, involves no determination on the merits and does not preclude a further application for the same relief. There is nothing in the Act or Regulations to suggest that the term “completed” should include “withdrawn” proceedings or that any special meaning should be given to those words. Nor is there any inconsistency with the objectives or principles of the Family Law Act or any special difficulty in excluding withdrawn proceedings from the definition of completed proceedings.
It is apparent from the paragraph quoted above that “a further application” is necessary after a “withdrawal”. The Full Court did not suggest that a withdrawn application or proceeding could simply be reinstated.
Family Law Rules
Clearly, the Family Law Act and the Family Law Rules have changed considerably since Peters was decided in 1982. Unlike the FMA and the FMCR, the Family Law Act and the Family Law Rules contain a number of references to the words “withdraw” and “withdrawal” – for example, in relation to the withdrawal of an offer under s. 117C, the withdrawal of a voluntary admission under Order 22 Rule 1, the withdrawal of a deemed admission as to facts or documents under Order 22, Rule 2, the withdrawal of an application for or consent to the registration of a parenting plan under Order 26A Rule 14, the withdrawal of an offer of settlement under Order 29, Rule 1, the withdrawal of an appeal under Order 32, Rule 19A, and the withdrawal of an application to the Full Court under Order 32, Rule 21C.
It is to be noted that, with one exception, there is no reference in the Family Law Rules to the withdrawal of a proceeding generally, or withdrawal of some form of initiating application at first instance (as opposed to the withdrawal of an appeal or an application to the Full Court).
The provisions in Order 32 dealing with the withdrawal of appeals and applications to the Full Court are of interest. Rule 19A (1) provides that an appellant or cross-appellant may, at any time, file a notice of withdrawal of an appeal, and on the notice being filed, the appeal is taken to be abandoned. Rule 21C (1) provides that an applicant may, at any time, file a notice of withdrawal of an application to the Full Court, and on the notice being filed, the proceedings are taken to be abandoned.
In the Family Law Act, “proceedings” is defined to mean “a proceeding in a court, whether between parties or not, and includes cross-proceedings or an incidental proceeding in the course of or in connexion with a proceeding”. The treatment of the relationship between an application and the proceeding or proceedings commenced by it in the Family Law Act and Rules is no different from its treatment in the FMA and FMCR. For example, Order 8 Rule 17(1) provides that if a party (except an applicant) “… seeks an order (including an order for dismissal of the proceedings) in proceedings commenced by an application in accordance with Form 8, the party must file and serve a response in accordance with Form 8A”. It follows that the “appeal” in Order 32 Rule 19A (1) should probably be treated as the appeal proceeding (as distinct from the Notice of Appeal). It is the appeal proceeding that is deemed to be abandoned by the filing of a notice of withdrawal of an appeal – not the Notice of Appeal (being the “application”, as it were, by which an appeal is commenced).
In the FMA, an appeal is included within the definition of “proceeding” in section 5.
Of significance, as well, is the fact that the former Form 15, being a Notice of Withdrawal of Pleading, no longer exists[7]. A Notice of Discontinuance, on the other hand, remains in the Family Law Rules as form 15A. Form 15A, and the terms of Order 9 Rule 12, make it clear that that which is to be discontinued is a specific order (or specific orders) contained within an application or other document. The applicant or respondent may discontinue an application or response wholly or in part. Clearly, a proceeding (as such) cannot be discontinued.
[7] It operated in relation to the withdrawal of a pleading at a time when the Family Law Rules used that expression to mean “an application, cross-application or answer in proceedings”. The long since deleted Order 11 Rule 2 stated that a party to proceedings by whom a pleading had been filed may withdraw the pleading at any time by filing a Notice of Withdrawal of Pleading in accordance with Form 15.
The concept of “abandonment” of proceedings as a result of the withdrawal of an appeal or application to the Full Court reinforces the view that such a withdrawal terminates extant proceedings (and does not, for example, simply remove them from a court list).
The only reference to “withdrawal of proceedings” in the Family Law Rules appears in Order 9 Rule 2(5).
Order 9 Rule 2 deals with the powers of the Court or a Registrar at a directions hearing. Rule 2(5) states that, at a directions hearing, the Court (or a Registrar) may make orders or directions in relation to any aspect of “…(xiii) withdrawal of proceedings”.
There are obvious similarities between Order 9 Rule 2 of the Family Law Rules (dealing with directions hearings) and Rule 10.01 of the FMCR (dealing with directions and orders to be made at the first court date). Although the expression “withdrawal of proceedings” appears in one set of Rules, it does not appear in the other.
There appears to be a lack of precision in the Rules of both the Family Court of Australia and the Federal Magistrates Court of Australia in relation to this subject.
It follows from the above discussion and review that although the Family Law Rules make reference to the Court having power to deal with the withdrawal of “proceedings” at a directions hearing, there appears to be no mechanism contained within the Family Law Rules to enable such a withdrawal (at least, of proceedings at first instance) to be effected. The Family Law Rules do not deal with the consequences of the withdrawal of proceedings at first instance — although if an appeal or application before the Full Court is withdrawn, then the proceeding is deemed to be “abandoned”.
High Court Rules and Federal Court Rules
In the High Court Rules, the following definitions appear:
a)proceeding includes action, cause, matter and suit;
b)action means a civil proceeding commenced by writ or in such other manner as is prescribed by Rules of Court, but does not include a criminal proceeding by the Crown;
c)cause includes a suit and criminal proceedings; and
d)suit includes an action or original proceeding between parties[8].
[8] See Order 1 Rule 5
Originating process is defined to mean “writ of summons or other summons by which a cause or matter is commenced”
The word “matter” is not defined in the High Court Rules. It is defined in the Judiciary Act 1903 as including “any proceeding in a Court, whether between parties or not, and also any incidental proceeding in a cause or matter”
Other relevant Rules are as follows:
ORDER 27 RULE 1 Discontinuance by a party
(1)
A party to an action or proceeding may, by notice in writing, wholly discontinue or withdraw his action, counterclaim or defence as against another party, or withdraw part or parts of his claim or cause of complaint, counterclaim or defence.
(2)
The party so discontinuing or withdrawing his action, counterclaim or defence, or a part or parts of his claim or cause of complaint, counterclaim or defence, shall pay the other party his costs in the action or proceeding, or, if the action, counterclaim or defence is not wholly discontinued or withdrawn, the costs occasioned by the matter so withdrawn.
(3)
The costs shall be taxed, and the discontinuance or withdrawal, as the case may be, shall not be a defence to a subsequent action for the same cause.
ORDER 27 RULE 2 Withdrawal by consent
An action or proceeding may be discontinued at any time upon the filing in the Registry in which it is then pending of a consent in writing signed by all parties.
ORDER 27 RULE 3 Entering judgment on discontinuance
A party may enter judgment:
(a)
for the costs of the action or proceeding if it is wholly discontinued against him; or
(b)
for the costs occasioned by the matter withdrawn if the action or proceeding is not wholly discontinued;
if the said costs are not paid within seven days after taxation.
ORDER 36 RULE 20 Withdrawal of trial after entering
Upon a request in writing signed by the plaintiff and all other parties (except, where appearance is necessary, such parties as have not appeared) that a proceeding entered for trial be withdrawn from the list of cases for trial for the next sittings of the Court at the place of the Registry in which the case is pending or from that list of cases for any specified length of time or until further notice to the Registrar, the Registrar may comply with the request, subject to any order of the Court or a Justice.
ORDER 36 RULE 24 Default of appearance by plaintiff
If, when a trial is called on, the defendant appears and the plaintiff does not appear, the defendant:
(a)
if he has no counterclaim, shall be entitled to judgment dismissing the action; or
(b)
if he has a counterclaim, then:
(i)
may prove the counterclaim so far as the burden of proof lies upon him; or
(ii)
in cases where, if plaintiff, he would have been entitled to judgment in default of appearance, shall be entitled to judgment without such proof.
ORDER 36 RULE 25 Default of appearance by both parties
If, when a trial is called on, neither the plaintiff nor the defendant appears, the case may be struck out and shall thereupon, unless the Court or a Justice otherwise orders, be wholly discontinued, and neither party shall be entitled to costs, but the case may be restored to the list for trial by order of the Court or a Justice upon such terms as are just.
It is clear from the above that certain of the definitions used are somewhat circular, and some of the concepts are less than clear. Suffice it to say, however, that the High Court can allow parties to discontinue or withdraw an action or a proceeding. A party can also request that “a proceeding entered for trial be withdrawn from the list of cases for trial …”. Further, in the specific circumstances summarised in Order 36 Rule 25 a “case” may be “struck out” and “ … shall thereupon, … be wholly discontinued, … but the case may be restored to the list for trial by order of the Court or a Justice upon such terms as are just”.
In my opinion, the concepts and terms contained in the High Court Rules tend to support the approach to the interpretation of the FMA and the FMCR that I have suggested. They do not seem to be inconsistent with such an interpretation. Relevantly, there is no suggestion in the High Court Rules that an action or proceeding can be withdrawn for an indefinite period with a “right of reinstatement”. The closest the High Court Rules come to such a concept is in Order 36 Rule 20 – but, in my opinion, that Rule is clearly intended to facilitate the vacating of a trial date for a relatively limited time. The Rule describes what is essentially an administrative procedure. The Registrar is given power to organise the “list of cases for trial”. The Rule does not envisage the semi permanent “suspension” (as it were) of substantive proceedings that have otherwise been effectively compromised. In other words, the Rule does no more than provide for a proceeding to be “removed from the list” for a period of time.
Section 38 of the Family Law Act deals with practice and procedure in the Family Court of Australia. It provides that the practice and procedure of the Family Court are to be in accordance with its own Rules of Court. Section 38(2), however, provides that, insofar as the Family Law Rules may be “insufficient”, the Rules of the High Court “…apply mutatis mutandis, so far as they are capable of application and subject to any directions of the Court or a Judge, to the practice and procedure of the (Family) Court”.
Section 43 of the FMA provides that the practice and procedure of the Federal Magistrates Court is to be in accordance with the FMCR. Section 43(2) covers the situation where the FMCR are considered to be “insufficient”. In such a case, The Family Law Rules (or the Federal Court Rules) are to apply — with necessary modifications.
It is apparent from the preceding two paragraphs that this Court should look firstly to the Family Law Rules (or the Federal Court Rules) for assistance when a Federal Magistrate considers that the FMCR may be inadequate to deal with a matter of practice and procedure.
I have already referred to the Family Law Rules. Insofar as the Federal Court Rules are concerned, withdrawal and discontinuance are dealt with in Order 22. “Proceeding” in the Federal Court Act and Federal Court Rules has the same meaning as it has in the Family Law Act and Rules.[9] Order 22 Rule 2 of the Federal Court Rules provides, inter alia, that “…a party making a claim for relief may discontinue a proceeding so far as concerns the whole or any part of any claim for relief, by notice in accordance with (the appropriate form)…” [emphasis added]. Order 22 Rule 4 provides, inter alia, that “…a party raising any matter in a defence or subsequent pleading may withdraw that matter at any time, by (the appropriate notice)”. In other words, and prima facie, an applicant can discontinue a proceeding, but he cannot withdraw it. A respondent can withdraw his defence. As well, a party who has entered an appearance may withdraw the appearance (subject to certain conditions).[10]
[9] See Federal Court of Australia Act 1976, s. 4.
[10] See Order 22 Rule 1 of the Federal Court Rules.
In my opinion, the structure and content of the Federal Court Rules reinforces the view that I have taken regarding the current proceedings and the conclusions which I have reached in the following section of these Reasons.
Summary – Federal Magistrates Court
In summary, therefore, I conclude – in relation to proceedings in this Court – that:
a)An application can be discontinued.. If it is (and if no Response has been filed), then the proceeding is at an end and it cannot be reinstated. Res judicata does not apply, and a fresh application in the same terms can be filed.
b)It is possible that an application can be withdrawn. Ordinarily, though, where an applicant seeks to voluntarily put an end to an action or proceeding, the originating application should be discontinued and not withdrawn. A response or reply, however, can be withdrawn. The difference would appear to be that the withdrawal of a response or reply leaves the proceeding commenced by the originating application on foot, whilst an attempted withdrawal of the originating application itself might notionally lead to the concept of a proceeding remaining on foot whilst the application by which it was commenced does not. Such a result would be nonsensical (unless, of course, a response had been filed seeking orders different from those contained in the originating application). To discontinue the application, however, is to discontinue the proceeding.[11] Given the definition of “discontinuance” in the FMCR and the other matters discussed above, it seems that an application that has been withdrawn should be treated as if it has been discontinued. It cannot be relisted or reinstated.
[11] Where a response has been filed.
c)A claim (or order sought) within an application or response can be withdrawn. It can probably also be discontinued. In such a case, the proceeding remains on foot, and the claim (or order sought) can be reinstated with the leave of the court.
d)An application can be “struck out” or dismissed:
i)If an application is struck out and no Response has been filed, then the proceeding commenced by the application is at an end and it cannot be reinstated or relisted. Ordinarily, res judicata does not apply, and a fresh application in the same terms can be filed. If a Response has been filed, then the proceeding remains on foot.
ii)If an application is dismissed and no Response has been filed, then the proceeding is at an end and it cannot be reinstated or relisted. Ordinarily, res judicata will apply if the application was dismissed on its merits (and a fresh application in the same terms cannot be filed). Conversely, res judicata ordinarily will not apply if the application was not dismissed on its merits (and a fresh application in the same terms can be filed). If a Response has been filed, then the proceeding remains on foot until the Response has been dealt with.
e)If the proceeding itself is “struck out”, then it is at an end and it cannot be reinstated or relisted. Ordinarily, res judicata does not apply, and a fresh application in the same terms can be filed.
f)Although a proceeding can be dismissed or discontinued, it is probably more correct to consider that only the applications or responses comprising the proceeding are capable of being dismissed or discontinued.[12]
g)A proceeding can be removed from a list of matters to be heard on a particular day. If it is, then the proceeding remains on foot and it can be relisted on another day. Given the objects of the FMCR as set out in Rule 1.03 (and the “other objects” of the FMA, as set out in s. 3 of the FMA), it seems to me that an extant or incomplete proceeding should not be permitted to languish or hibernate (as it were) in the Court for an extended or indefinite period. Whilst informality and the use of “streamlined processes” may be considered desirable, the first object of the FMCR is to “...assist the just, efficient and economical resolution of proceedings” [emphasis added].[13] In the era of modern case management practices, it seems to me that any order which unnecessarily or inappropriately serves to extend the duration of proceedings or inhibit their “resolution” should be avoided.
h)A “right of reinstatement” does not seem to exist. It certainly does not exist in relation to a proceeding, application or response that has been dismissed or discontinued. Nor does it exist in relation to a proceeding that has been “struck out”. At best, a party whose proceeding has been removed from the list of matters to be heard on a particular day can apply (probably administratively) to have it relisted.
[12] See Order 22 Rule 2(1)of the Federal Court Rules.
[13] See FMCR, Rule 1.03(1).
It follows from the above that I decline to make the orders sought by the parties in these proceedings. I shall hear Counsel as to other orders that they may seek.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Walters FM
Associate: Paul O'Halloran
Date: 25 March 2003
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