Lu v University of New South Wales (No 2)

[2023] FCA 318

FEDERAL COURT OF AUSTRALIA

Lu v University of New South Wales (No 2) [2023] FCA 318

Appeal from:	Lu v University of New South Wales [2022] FCA 588
File number(s):	SAD 158 of 2022
Judgment of:	O'SULLIVAN J
Date of judgment:	15 March 2023
Date of publication of reasons:	6 April 2023
Catchwords:	PRACTICE AND PROCEDURE – non-compliance with Court’s orders – where appellant failed to serve respondent with notice of appeal despite being given multiple opportunities to do so – dismissal under s 25(2B)(bb)(i) and ss 37P(5) and (6)(a) of the Federal Court of Australia Act 1976 (Cth)
Legislation:	Federal Court of Australia Act 1976 (Cth), ss 25(2B)(bb)(i), 37P(5) and (6)
Division:	General Division
Registry:	South Australia
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	10
Date of hearing:	15 March 2023
Counsel for the Appellant:	There being no appearance
Solicitor for the Respondent:	Mr J Mattson for Bartier Perry Pty Limited

ORDERS

SAD 158 of 2022

BETWEEN:

MIN LU

Appellant

AND:

UNIVERSITY OF NEW SOUTH WALES

Respondent

ORDER MADE BY:	O'SULLIVAN J
DATE OF ORDER:	15 MARCH 2023

THE COURT ORDERS THAT:

1.Pursuant to s 25(2B)(bb)(i) and ss 37P(5) and (6)(a) of the Federal Court of Australia Act 1976 (Cth), the matter is dismissed for non-compliance with the Court’s orders.

2.The appellant is to pay the respondent’s costs of and incidental to the proceedings on a lump sum basis with such lump sum to be fixed by a Registrar of the Court.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

O’SULLIVAN J:

1. This matter is an appeal from Katzmann J, delivered 15 September 2022.  There is a question as to whether leave is required and whether her Honour’s judgment is interlocutory, but that is a separate question.  This is the fifth case management hearing in this matter.  At each hearing, the appellant has failed to serve the respondent with the notice of appeal and any supporting documentation.  Today the appellant has not appeared.  On previous occasions, the appellant has appeared or, alternatively, has attempted to join a case management hearing after the hearing has concluded.

2. This matter was listed for a case management hearing today following a case management hearing on 28 February 2023.  On 1 March 2023, the orders made on 28 February 2023 adjourning the matter to today were emailed to Ms Lu.  On 9 March 2023, she responded that the time was not suitable and needed an afternoon time on 27 March 2023.  This is not the first time Ms Lu, although getting advanced notice of case management hearings, has sought adjournments for no apparent reason. 

3. On 10 March 2023, my Associate contacted Ms Lu and informed her that the matter continued to be listed today, 15 March 2023, at 8.45am (ACDT).  On the afternoon of 14 March 2023, Ms Lu contacted my chambers, again asserting the time and date for this case management hearing was unsuitable, and wanted to change it to 27 March 2023.  On the morning of 15 March 2023, my chambers responded to Ms Lu, informing her that the matter would proceed as listed. 

4. I am informed by Mr Mattson, who appears for the University of New South Wales, that he has received an email response to an email sent to Ms Lu today to the effect that Ms Lu is away travelling until 27 March 2023.  I am informed that today my chambers has also received the same response. 

5. This matter has been prolonged because of the actions or, should I say, the failings of the appellant.  She has been given multiple opportunities to serve the notice of appeal and any supporting documentation on the University but has not done so.

6. Mr Mattson has informed the Court and has also informed Ms Lu that his firm has instructions from the University to accept service.  He has also filed a notice of acting, notwithstanding Ms Lu has failed to serve the proceedings and insists on sending the documentation to individual members of the University staff. 

7. The respondent now seeks an order dismissing the appeal for want of prosecution or for non-compliance with the Court’s orders pursuant to s 25(2B)(bb)(i) or s 37P(5) and (6).

8. The Court’s patience has been exhausted.  Far too many of its resources have been wasted on this matter, and that waste must stop.

9. Accordingly, there will be orders that the appeal be dismissed for non-compliance with the Court’s orders.

10. The respondent applies for costs.  There is no reason why it should not receive its costs and there will accordingly be an order made in those terms.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Sullivan.

Associate: 

Dated:       6 April 2023