Kennedy v Qantas Ground Services Pty Ltd (No 3)

[2024] ACTSC 271

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Kennedy v Qantas Ground Services Pty Ltd (No 3)

Citation: 

[2024] ACTSC 271

Hearing Date: 

30 August 2024

Decision Date: 

30 August 2024

Before:

Mossop ACJ

Decision: 

1. The plaintiff is directed to file any application pursuant to r 5312 of the Court Procedures Rules 2006 (ACT) in relation to the decision of Mossop J of 19 July 2024 by 19 September 2024.

2.    Where order 1 is not complied with, the plaintiff must comply with orders 2-4 made by Mossop J on 19 July 2024 by 26 September 2024.

3.    The proceedings are listed for directions at 9:15am on 8 October 2024.

4.    Costs of the application in proceeding dated 22 August 2024, including the hearing today, are reserved.

Catchwords: 

PRACTICE AND PROCEDURE – PLEADINGS – Application by defendants for order to compel plaintiff to either seek leave to appeal out of time or comply with previous orders – where plaintiff previously directed to file complying pleadings – where plaintiff failed to do so – plaintiff previously self-represented litigant – plaintiff recently engaged solicitors – additional time allowed for plaintiff’s new solicitors – application otherwise allowed

Legislation Cited: 

Court Procedures Rules 2006 (ACT), r 5312

Cases Cited:

Kennedy v Qantas Ground Services Pty Ltd (No 2) [2024] ACTSC 232

Parties: 

Ross Kennedy ( Plaintiff)

Qantas Ground Services Pty Ltd (First Defendant)

Qantas Airways Limited (Fifth Defendant)

Representation: 

Counsel

K Deves ( Plaintiff)

D Crowe (First and Fifth Defendants)

Solicitors

Alexander Rashidi Lawyers ( Plaintiff)

Sparke Helmore (First and Fifth Defendants)

File Number:

SC 253 of 2019

MOSSOP ACJ:

1․I made orders on 19 July 2024 requiring the plaintiff to file a Third Further Amended Statement of Claim (Kennedy v Qantas Ground Services Pty Ltd (No 2) [2024] ACTSC 232). He did not do so. There was a timetable set which anticipated that he would do so and, as a consequence, the steps that were to be taken consequent upon the filing of the Third Further Amended Statement of Claim have not been taken.

2․The matter was listed for directions today in anticipation of the need to make further directions for the preparation of the case. As a result of the plaintiff's non-compliance, the defendants have put on an application seeking to compel the plaintiff to either seek leave to appeal out of time from my earlier interlocutory decision or comply with the orders by a future date. If neither of those occur, the application sought a guillotine order dismissing the proceedings with costs.

3․Although the plaintiff has not complied with the orders that I have made, he has recently engaged solicitors. Ms Deves, who appears for him today, has sought an adjournment of the proceedings so as to allow her firm time to become more familiar with the matter and obtain advice from counsel in relation to its progress. That adjournment was opposed. Ms Deves indicated a fallback position if the adjournment was refused, seeking additional time beyond that identified in the defendants’ application in proceeding, in which to either seek leave to appeal the interlocutory decision out of time or comply with the order previously made.

4․In my view, it is not appropriate to adjourn the proceedings, despite the plaintiff’s recent instruction of solicitors. The orders previously made required a relatively straightforward, mechanical exercise in order to give effect to my earlier interlocutory decision. That is an exercise which the plaintiff, when acting for himself, has demonstrated that he was either unwilling or unable to implement. Notwithstanding the desirability that the plaintiff acts through solicitors, I do not consider that it is appropriate to defer attempts at further progress of the matter whilst those solicitors investigate the matter in more detail. In my view, it is essential that the matter make some progress and the application in proceeding illustrates two ways in which progress can be made.

5․Despite my general reluctance to adopt an approach which permits proceedings before a single judge to be interrupted by applications for leave to appeal in circumstances where no stay of the underlying proceedings has been granted by the Court of Appeal, having regard to the way in which the application is framed, in this case I consider it appropriate to acquiesce in a regime which would, at least in the interim, permit the proceedings to be interrupted if an application for leave to appeal was made from my earlier decision.

6․Notwithstanding the rejection of the application for an adjournment, I do consider that it is appropriate to allow the plaintiff's new solicitors some additional time, beyond that contemplated in the application in proceeding, to take the steps that they are required to take. The granting of that additional time was not opposed by the defendants.

7․For the reasons I have given, the orders that I make are as follows:

1.The plaintiff is directed to file any application pursuant to r 5312 of the Court Procedures Rules 2006 (ACT) in relation to the decision of Mossop J of 19 July 2024 by 19 September 2024.

2.Where order 1 is not complied with, the plaintiff must comply with orders 2-4 made by Mossop J on 19 July 2024 by 26 September 2024.

3.The proceedings are listed for directions at 9:15am on 8 October 2024.

4.Costs of the application in proceeding dated 22 August 2024, including the hearing today, are reserved.

I certify that the preceding seven [7] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Chief Justice Mossop.

Associate:

Date: 10 October 2024