Marie Keller v Australian Postal Commission
[1997] FCA 177
•3 March 1997
C A T C H W O R D S
APPEAL - motion to dismiss for want of prosecution - more than two years elapsed since lodgement of notice of appeal - history of failure to attend appointments to settle appeal book index and callovers - appellant in apparently chronic ill-health and not legally represented - requested indefinite adjournment of appeal - appellant had demonstrated some ability to attend to the matter - had filed interlocutory motion at one stage - had forwarded a series of lengthy letters to the Court - appellant's correspondence enclosed medical certificates which were not contemporaneous - no evidence of any effort on appellant's part to take any steps to have appeal heard - power to dismiss appeal for want of prosecution not to be exercised lightly - relevant considerations - respondent's interest in achieving finality of dispute - appellant's case not reasonably arguable.
Van Reesema v. Giameos (1979) 27 ALR 525
MARIA KELLER v. AUSTRALIAN POSTAL CORPORATION
No. VG 449 of 1994
CARR, TAMBERLIN & SUNDBERG JJ
3 MARCH 1997
MELBOURNE
IN THE FEDERAL COURT )
OF AUSTRALIA )
VICTORIA DISTRICT REGISTRY ) No. VG 449 of 1994
GENERAL DIVISION )
On appeal from a single judge of the Federal Court of Australia
B E T W E E N : MARIA KELLER
Appellant
and
AUSTRALIAN POSTAL
CORPORATION
Respondent
CORAM: CARR, TAMBERLIN & SUNDBERG JJ.
PLACE: MELBOURNE
DATE: 3 MARCH 1997
MINUTE OF ORDERS
THE COURT ORDERS THAT:
The appeal be dismissed, pursuant to Order 52 rule 38(1)(a), for want of prosecution.
The appellant pay the respondent's costs of the appeal including the costs of this motion.
NOTE:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT )
OF AUSTRALIA )
VICTORIA DISTRICT REGISTRY ) No. VG 449 of 1994
GENERAL DIVISION )
On appeal from a single judge of the Federal Court of Australia
B E T W E E N : MARIA KELLER
Appellant
and
AUSTRALIAN POSTAL
CORPORATION
Respondent
CORAM: CARR, TAMBERLIN & SUNDBERG JJ.
PLACE: MELBOURNE
DATE: 3 MARCH 1997
REASONS FOR JUDGMENT
Introduction
CARR J:
The Court has before it a motion by the respondent under Order 52 rule 38(1)(a) of the Federal Court Rules, for an order that the appellant's appeal in this matter be dismissed for want of prosecution. On 21 November 1996 his Honour the Chief Justice made an order that this motion be heard by the Full Court this afternoon. An affidavit of service has been filed which shows that a copy of the respondent's amended notice of motion (returnable today), a copy of Merkel J's order, of 26 September 1996, giving the respondent leave to amend its notice of motion and a copy of a further affidavit sworn by the respondent's solicitor on 29 September 1996 were all served upon the appellant on 12 November 1996. The only amendments made to the respondent's notice of motion were to show on its face
that it would be returnable at the Full Court sittings commencing 3 March 1997.
The respondent has filed two affidavits in support of its motion to dismiss the appeal. In each case the deponent is Ms Neroli Jane Martin, the respondent's solicitor. The further affidavit, to which I have just referred, was sworn for the purposes of exhibiting a transcript of proceedings in the Administrative Appeals Tribunal on 8 August 1995. In Ms Martin's principal affidavit the transcript actually exhibited was one in respect of proceedings before that Tribunal held on 8 September 1995 although in the body of her affidavit that document was described as being the transcript of the earlier proceedings.
I shall now turn briefly to the subject matter of the appeal. The appeal is from a judgment of a single judge of this Court, Heerey J, given on 2 December 1994. His Honour, for reasons delivered on that date, ordered that the appellant's application, dated 7 November 1994, be dismissed. The respondent had sought that order under Order 20 rule 2 on the basis that no reasonable cause of action was disclosed, or that the proceeding was frivolous or vexatious or an abuse of the process of the Court.
In summary, the appellant's application at first instance was for an order of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth). The application was filed on 7 November 1994 in respect of three decisions. The first decision was one made by the respondent's claims manager on 4 March 1992 in respect of the appellant's claim for compensation for personal injury which she
claimed to have sustained on 12 September 1991. The second decision was made by an officer of the respondent on 26 February 1993 relating to compensation for personal injury said to have been sustained by the appellant "on or after 17 June 1992". The third decision was described as having been made by a Ms L Turner for K.A. Searson, Commissioner for Superannuation, on 29 June 1994 relating to an application for payment of total and permanent disablement benefits. In his ex tempore reasons for judgment, his Honour after identifying these three decisions, turned first to the second decision. His Honour noted that the appellant had commenced proceedings in the Administrative Appeals Tribunal seeking review of that decision. His Honour said that "Quite apart from the question that the present application to this Court is out of time ..." it was better that the appellant should have the full right of re-hearing of her claim for compensation before the Administrative Appeals Tribunal. His Honour noted "This Court can only review questions of law; it cannot re-hear her claim on the merits".
As to the third claim, his Honour observed that the respondent is not responsible for superannuation administration and that that "claim" was also out of time. Although his Honour did not expressly in his reasons relate the balance of those reasons to the first decision, in my view it is sufficiently plain that he intended to do so. His Honour noted that the appellant's two affidavits did not make out any case for extension of time. As mentioned above, the first decision was made some two years and eight months before the application was filed in this Court. For those reasons his Honour ordered that the application be dismissed.
The affidavits filed on behalf of the respondent in support of its motion disclose the following history of the appeal:
The appellant filed her notice of appeal on 15 December 1994.
On 22 February 1995 there was the usual appointment to settle the appeal book index. The appellant did not attend that appointment, but on that date sent a letter apologising for her absence and stating that this was due to medical reasons.
On 23 February 1995 a Deputy District Registrar prepared a draft index of documents for the appeal book and sent that draft to the appellant.
On 3 July 1995 the appellant wrote to the Victoria District Registry ("the Registry") asking that the case be adjourned indefinitely due to her ill-health.
On 15 September 1995 the appellant filed a motion seeking the release of certain papers relating to her superannuation claim.
On 16 September 1995 the appellant wrote a lengthy letter to the Registry asking for the hearing of this matter to be postponed indefinitely on the basis of medical reports (enclosed in her letter) from a Dr Epstein and a Dr Gras.
On 26 September 1995, the appellant's motion came before Olney J. The appellant did not appear. Olney J dismissed the appellant's motion and ordered the District Registrar to re-convene an appointment for settling the appeal papers.
An appointment for settlement of the appeal papers was made for 12 noon on 18 October 1995. On that date the appellant sent a fax to the Registry indicating that she was unfit to attend that appointment. On the same date
a Deputy Registrar directed the appellant to file and serve an appeal book on or before 30 November 1995.The appeal was included in the Callover for 30 November 1995.
On 30 November 1995 the appellant did not appear and the appeal was stood over to the next Callover to be held on 4 April 1996.
On 4 April 1996 the appeal was in the Callover before the Chief Justice. Again the appellant did not appear. The Chief Justice directed that the appeal not be put in the list for the June 1996 Full Court sittings, but depending upon the outcome of the respondent's motion (which presumably was foreshadowed by the respondent at that time) it might be possible to reserve a place in the list if the situation changed.
The matter was placed in the Callover on 15 August 1996 when it again came before the Chief Justice. The appellant did not appear. The Chief Justice adjourned the matter to the next Callover.
On 6 September 1996 the Respondent filed its notice of motion seeking an order that the appeal be dismissed.
On 26 September 1996, Merkel J ordered that the respondent have leave to amend its motion which was to be made returnable before a Full Court on a date to be fixed by the Registry. Merkel J also ordered that the amended notice of motion and an explanatory letter be served on the appellant within 14 days of filing of the amended notice of motion, and this afternoon we were supplied with a copy of that letter.
On 21 November 1996 the Chief Justice ordered that the matter or matters may be set down for hearing in the March 1997 sittings of the Melbourne
Full Court. His Honour the Chief Justice also ordered that once the date of the hearing was fixed, an order should be taken out by the respondent and served on the appellant. Evidence was filed in Court this afternoon to the effect that this step was taken about a week ago after several earlier unsuccessful attempts at such service.
From the documents exhibited to Ms Martin's affidavit sworn on 4 September 1996 it appears that the appellant is not in good health. The appellant has sent other documents at various times to the Court in which the appellant has, on the basis of her ill-health and inability to obtain legal representation, asked that the appeal be postponed indefinitely.
The respondent points to various documents prepared by the appellant and exhibited to Ms Martin's affidavit as evidencing the fact that the appellant is quite capable of preparing some documents relating to her case. The respondent also makes the point that the appellant has not produced any evidence to indicate that she is continuously unfit to "run her case". In my view, there is some substance in what the respondent says. The appellant has over the two years since this appeal was instituted, demonstrated an ability to generate a considerable volume of correspondence with the Court. She was also able to file her notice of motion dated 6 September 1996. The most recent medical certificate upon which she relies is some 17 months old. On 29 July 1996 the appellant wrote to the Court stating that her preferred date for the hearing of the appeal would be in March 1997 i.e. this month. It can be seen that her preference has been accommodated,
but there is no evidence of any effort on the appellant's part to take the preparatory steps necessary to have the appeal heard. In this matter those steps are not complicated. The Court itself (thanks to the good offices of Deputy District Registrar L.K.Young) has prepared a draft appeal book index. All that was required was the photocopying of relatively few documents and assembling them, if necessary, into folders.
In my opinion, it is not necessary to decide whether the appellant is unable to prosecute her appeal either through ill-health or for lack of legal representation. I think that justice can be done in respect of the respondent's motion by assuming, in favour of the appellant, that such is the case.
Even in those circumstances, in my view, it is not in the interests of justice that this appeal should be postponed indefinitely in the hope either that the appellant will recover or that she will obtain legal representation, or both. On the former aspect, the medical reports which the appellant has forwarded to the Court indicate that she has a psychiatric condition which is permanent.
I think it is important to take into account and give considerable weight to the fact that the notice of appeal in this matter was lodged well over two years ago. The respondent's interest in achieving finality in respect of the dispute forming the subject matter of the application before Heerey J must also be recognised.
On the other hand, the power to dismiss appeals for want of prosecution must not
be lightly exercised: Van Reesema v. Giameos (1979) 27 ALR 525 at p.530. That was a decision of the Full Court of this Court. One of the reasons which the Full Court gave for justifying the order dismissing the appeal in that matter for want of prosecution was that it was satisfied that there was no reasonably arguable case for the appellant on the appeal. I have read the papers in both the proceedings at first instance and the papers filed in this appeal, including the judgment of Heerey J and I have come to a similar conclusion in the present matter. In my view the appellant does not have a reasonably arguable case in her appeal against Heerey J's judgment.
For the foregoing reasons I would grant the respondent's motion and order that the appeal be dismissed with costs.
I certify that this and the preceding seven
(7) pages are a true copy of the Reasons
for Judgment of Justice Carr.Associate:
Date: 3 March 1997
IN THE FEDERAL COURT )
OF AUSTRALIA )
VICTORIA DISTRICT REGISTRY ) No. VG 449 of 1994
GENERAL DIVISION )
On appeal from a single judge of the Federal Court of Australia
B E T W E E N : MARIA KELLER
Appellant
and
AUSTRALIAN POSTAL
CORPORATION
Respondent
CORAM: CARR, TAMBERLIN & SUNDBERG JJ.
PLACE: MELBOURNE
DATE: 3 MARCH 1997
REASONS FOR JUDGMENT
TAMBERLIN J:
In this matter the decision of Heerey J under appeal was delivered on 2 December 1994. This appeal was granted on 15 December 1994. Since that date there have been a series of non‑attendances, adjournment requests and a general reluctance to prosecute the appeal. Largely these were based on matters relating to medical reasons, and in some instances lack of legal representation. In July 1995 the appellant sought that all actions be adjourned. In September 1995 a request was made for the hearing of this appeal to be postponed indefinitely on the basis of reports from Dr Epstein and Dr Gras.
While the court appreciates the difficulties with which the appellant has been confronted, it is necessary for the proper and efficient administration as a
matter of public interest of this court that appeals should be dealt with as expeditiously as possible. Such an approach must, of course, be consistent with the application of fair and even‑handed treatment for both parties. It is not consistent with these principles to allow appeals to be postponed indefinitely, or for unduly long periods of time.
In August 1996 when the matter was adjourned to a later callover it was made clear by the Chief Justice that it was unlikely that any further delay in the matter would be accepted. In September and October 1996 the appellant sought yet further adjournments. The matter was set down for callover on 21 November 1996 when the matter was listed for the March sittings of the Full Court. Prior to that callover the appellant had again requested an indefinite postponement but this was not acceded to.
On 19 and 25 February 1997 the appellant sought a further adjournment. The letter of 25 February 1997 requested an indefinite adjournment because of her medical condition and the lack of legal representation. Her position was confirmed by the letter written this morning received by the members of the court today seeking that the matter be adjourned indefinitely.
In my view, there has been a clear and continuing reluctance manifested by the appellant to bring her appeal to hearing. This strong and enduring reluctance persuades me that the appeal should be dismissed for want of prosecution. She has consistently failed to properly pursue the matter. Every case must turn on
its own circumstances, but in this case, after the lapse of more than two years and a number of earlier warnings clearly advanced by the court in what is a relatively short and simple appeal on its face, the applicant has been given more than a fair
and reasonable time within which to act.
I would accordingly dismiss the appeal with costs. In doing so I bear in mind the principle adverted to by the Full Court in the case of Jess v. Scott 1986 70 ALR 185 at 192 where the court referred to the principle that the rules of court and particularly those relating to time should never be allowed to be an instrument of tyranny. They do, however, have purposes, one of which is that the parties may know where they stand and regulate their affairs accordingly.
Where genuine issues ought to be litigated, and that can be done with fairness to all concerned, it is appropriate to take a benign view of applications to extend time. However, in this case even taking the most benign view to the manner in which this litigation has been conducted on the part of the applicant, I am unable to resist the application to dismiss the appeal for want of prosecution.
I should add that on the material placed before Heerey J I cannot detect any error of law in his Honour's decision. The applicant as clearly out of time, and his Honour's decision to dismiss the appeal was made in the exercise of a wide discretion, and his decision was well open to him on the material before him.
I agree with the order which has been expressed by the presiding judge that the application should be granted and the appeal dismissed with costs.
I certify that this and the preceding three
(3) pages are a true copy of the Reasons
for Judgment of Justice Tamberlin.
Associate:
Date: 3 March 1997
IN THE FEDERAL COURT )
OF AUSTRALIA )
VICTORIA DISTRICT REGISTRY ) No. VG 449 of 1994
GENERAL DIVISION )
On appeal from a single judge of the Federal Court of Australia
B E T W E E N : MARIA KELLER
Appellant
and
AUSTRALIAN POSTAL
CORPORATION
Respondent
CORAM: CARR, TAMBERLIN & SUNDBERG JJ.
PLACE: MELBOURNE
DATE: 3 MARCH 1997
REASONS FOR JUDGMENT
SUNDBERG J:
I agree with the orders proposed by Carr J and with his Honour's reasons. I also agree with the additional observations made by Tamberlin J.
I certify that is a true copy of the Reasons
for Judgment of Justice SundbergAssociate:
Date: 3 March 1997
There was no appearance for the appellant.
Counsel for the Respondent: Mr A. Moulds
Solicitors for the Respondent: Wisewoulds
Date of Hearing: 3 March 1997
Date of Judgment: 3 March 1997
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