Malu Lamar (Torres Strait Islander Corporation) RNTBC v The Protected Zone Joint Authority
[2019] FCA 974
•20 June 2019
FEDERAL COURT OF AUSTRALIA
Malu Lamar (Torres Strait Islander Corporation) RNTBC v The Protected Zone Joint Authority (2019) FCA 974
File number: VID1510 of 2018 Judge: WHEELAHAN J Date of judgment: 20 June 2019 Catchwords: PRACTICE AND PROCEDURE – failure of applicant to attend Court hearings – application by second respondent to dismiss the proceeding – failure by applicant to prosecute the proceeding with due diligence – applicant in default – proceeding dismissed. Legislation: Federal Court of Australia Act 1976 (Cth) s 37P(6)(a)
Federal Court Rules 2011 (Cth) r 1.40(a), r 5.22, r 5.23, r 5.23(1), r 26.01
Date of hearing: 20 June 2019 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 10 Counsel for the Applicant: No appearance Counsel for the First Respondent: The first respondent filed a submitting appearance Counsel for the Second Respondent: Ms S Nyabally Solicitor for the Second Respondent: Australian Government Solicitor ORDERS
VID1510 of 2018 BETWEEN: MALU LAMAR (TORRES STRAIT ISLANDER CORPORATION) RNTBC
Applicant
AND: THE PROTECTED ZONE JOINT AUTHORITY
First Respondent
THE ASSISTANT MINISTER FOR AGRICULTURE AND WATER RESOURCES
Second Respondent
JUDGE:
WHEELAHAN J
DATE OF ORDER:
20 JUNE 2019
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the second respondent’s costs to be assessed in default of agreement.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Ex tempore, revised)WHEELAHAN J:
On 21 November 2018, the applicant filed an originating application seeking judicial review in relation to conduct in which it is alleged the respondents have engaged, are engaging or propose to engage pursuant to s 14 and s 15A of the Torres Strait Fisheries Act 1984 (Cth) (the Fisheries Act) concerning proposed amendments to the Torres Strait Fisheries (Tropical Rock Lobster) Management Instrument 2018. The first respondent has filed a submitting notice. The second respondent is defending the proceeding.
On 4 December 2018, upon the first case management hearing in the proceeding, I made orders giving leave to the applicant to amend its originating application, and referred the proceeding to mediation, to be conducted by 25 January 2019. I adjourned the case management hearing to 5 February 2019.
The proceeding was scheduled for formal mediation on 22 January 2019, but was adjourned to a date to be fixed by consent of the parties.
On 4 February 2019, the Court was informed that no mediation had yet been conducted in the proceeding. The parties provided the Court with proposed consent orders, seeking that the case management hearing be adjourned to a later date, and allowing for the applicant to file an amended application for judicial review. Orders were made adjourning the case management hearing to 29 April 2019.
On 25 March 2019, the applicant’s lawyers, Shayne Daley & Associates, filed a notice of ceasing to act.
At the case management hearing on 29 April 2019, the applicant did not appear. The second respondent sought an order that the proceeding be dismissed pursuant to s 37P(6)(a) of the Federal Court of Australia Act 1976 (Cth), due to the applicant’s lack of attendance at the case management hearing, and failure to file an amended application for judicial review. I declined to hear that application at that time in the absence of formal notice to the applicant. Subsequently, I made orders on 2 May 2019 adjourning the case management hearing to 31 May 2019, and listing any interlocutory application by the respondent for hearing on 31 May 2019. The orders required that any interlocutory application made by the respondents be filed and served by 17 May 2019.
On 17 May 2019, the respondents filed an interlocutory application and supporting affidavit of Jonathan Hutton, affirmed on 17 May 2019, together with written submissions. This application sought summary judgment pursuant to r 26.01 of the Federal Court Rules on the ground that the proceeding had no reasonable prospects of success.
At the interlocutory hearing listed on 31 May 2019, the applicant again failed to appear. I declined to hear the second respondent’s application for summary judgment on the ground that this was not an efficient use of Court time. Instead, I decided in the exercise of the Court’s powers under r 1.40(a) to adjourn the second respondent’s application to a date to be fixed, and to adjourn the case management hearing to today to hear submissions as to why the proceeding should not be dismissed under r 5.23(1) on the ground that the applicant had failed to attend case management hearings, and had failed to prosecute the proceeding with due diligence. I made orders in the following terms –
1.The interlocutory application of the second respondent filed 17 May 2019 is adjourned to a date to be fixed.
2.The case management hearing is adjourned to 10.15am on 20 June 2019 for the hearing of submissions as to why the application should not be dismissed in the exercise of the Court’s powers under r 1.40 and r 5.23 of the Federal Court Rules 2011 (Cth), on the ground that the applicant is in default (as defined in r 5.22) in that it has failed to attend a hearing in the proceeding or has failed to prosecute the proceeding with due diligence.
3.The second respondent serve a copy of this order on the applicant addressed to the following addresses:
a.Native Title Office, Level 1, Torres Strait Haus, 46 Victoria Parade, Thursday Island QLD 4875;
b.56 Douglas Place, Thursday Island, Queensland 4875;
c.and by email to [email protected];
and by 4.00pm on 18 June 2019 file an affidavit of service with the Court.
The second respondent has filed an affidavit of service deposing to the fact that on 3 June 2019 letters were sent by the Australian Government Solicitor by express post to the two addresses set out above enclosing sealed copies of the orders, and that also on 3 June 2019 an email was sent to the email address specified in the orders attaching a covering letter and a sealed copy of the orders of 31 May 2019.
There was no appearance for the applicant today. I infer from the procedural history of this application that the applicant does not propose to pursue this proceeding. I am satisfied that it is in the interests of justice that an order be made pursuant to r 5.23(1) of the Federal Court Rules that the application be dismissed on the ground that the applicant is in default (as defined in r 5.22) in that it has failed to attend a hearing in the proceeding and on the further ground that it has failed to prosecute the proceeding with due diligence.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wheelahan. Associate:
Dated: 20 June 2019
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