Jovanovski v Telstra Corporation Limited

[2007] FCA 1322

FEDERAL COURT OF AUSTRALIA

Jovanovski v Telstra Corporation Limited [2007] FCA 1322

GEORGE JOVANOVSKI v TELSTRA CORPORATION LIMITED ACN 051 775 556

NSD 846 OF 2007

GYLES J
21 AUGUST 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 846 OF 2007

ON APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY SENIOR MEMBER G ETTINGER AND DR MEC THORPE, MEMBER 

BETWEEN:	GEORGE JOVANOVSKI Applicant
AND:	TELSTRA CORPORATION LIMITED ACN 051 775 556 Respondent

JUDGE:	GYLES J
DATE OF ORDER:	21 AUGUST 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The order dismissing the proceeding is set aside conditionally upon a settled index being filed on or before 23 August 2007.

2.The costs of and incidental to this motion be paid by the solicitor for the applicant on an indemnity basis.

3.The matter be stood over for further directions to 28 August 2007 at 9.30 am.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 846 OF 2007

ON APPEAL FROM THE GENERAL ADMINISTRATIVE DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY SENIOR MEMBER G ETTINGER AND DR MEC THORPE, MEMBER

BETWEEN:	GEORGE JOVANOVSKI Applicant
AND:	TELSTRA CORPORATION LIMITED ACN 051 775 556 Respondent

JUDGE:	GYLES J
DATE:	21 AUGUST 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The chronology of this matter to date makes very sad reading.  It demonstrates a continuing failure to understand the obligations of a solicitor in matters of this kind on several levels.  The first and most fundamental is not appearing on the date and time required in Court on two occasions.  Secondly, absolutely incompetent attention to the settling of an index which, itself, involved time defaults.  Thirdly, not ensuring, by the time this application was made, that the index was settled.  Fourthly, having the temerity to suggest that the costs, if the application were allowed, should be costs in the cause.  Fifthly, having failed to appear initially, on the next occasion being represented by an agent who had no idea about the case at all and was unable to advance any substantive assistance having told me he had been called at the last moment, then persisting, on the following occasion, in having that agent appear again, still with no idea about the case.  Finally, in providing an absurd explanation about 10.00 am rather than 9.30 am being the time when, first of all, 9.30 am is the general time for directions in this Court, secondly, where there is a list published every day, and thirdly, a list is available on the internet the night before and on the morning of the directions hearing.  I say “absurd” because it shows a total incompetence by the practitioners concerned, both the principal and the agent.

2. The difficulty I have, of course, is that I am not here to discipline solicitors.  I am here to hear cases by litigants.  There is no time limit involved.  The applicant, I am told by counsel, has a case worth pursuing and it would be unjust if that were not permitted to be pursued because of the defaults of the solicitors concerned who, frankly, it seems to me, still have absolutely no idea of the obligations involved to their client and to the Court.  But that can be cured, so far as I am concerned, by costs.  Professional discipline is not within my jurisdiction.  However, the judgment will not be set aside unless and until an index is settled.

3. The order dismissing this proceeding is set aside conditionally upon a settled index being filed on or before 23 August 2007.  I order that the costs of and incidental to this motion be paid by the solicitor for the applicant upon an indemnity basis. 

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate:

Dated:       28 August 2007

Counsel for the Applicant:	Mr LT Grey
Solicitor for the Applicant:	Gerard Malouf & Partners
Counsel for the Respondent:	Mr B Kelly
Solicitor for the Respondent:	Henry Davis York
Date of Hearing:	21 August 2007
Date of Judgment:	21 August 2007