Matthews v Hargreaves (No.3)

[2011] FMCA 254

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MATTHEWS v HARGREAVES (No.3) [2011] FMCA 254

HUMAN RIGHTS – Alleged discrimination – disability.

PRACTICE AND PROCEDURE – Application for default judgment for alleged non-compliance with Court orders.

Federal Magistrates Court Rules 2001 (Cth), rr.13.03A(2)(b)(iii), 13.03B(2)(d)

Huang v Abayawickrama & Anor [2011] FMCA 235

R Allen, Allen’s Dictionary of English Phrases (London: Penguin Books, 2006)

Applicant: KELVIN JOHN MATTHEWS

Respondent: TIMOTHY WYNN HARGREAVES

File Numbers:

PEG 144 of 2010

PEG 168 of 2010

Judgment of: Lucev FM

Hearing date: 13 April 2011

Date of Last Submission: 13 April 2011

Delivered at: Perth

Delivered on: 13 April 2011

REPRESENTATION

The Applicant: In person (by telephone link)

The Respondent: In person (by telephone link)

ORDERS

1. That the applicant’s Application in a Case for default judgment be dismissed.

2. That there be no order as to costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PERTH

PEG 144 of 2010

PEG 168 of 2010

KELVIN JOHN MATTHEWS

Applicant

And

TIMOTHY WYNN HARGREAVES

Respondent

REASONS FOR JUDGMENT

(Edited from ex tempore reasons)

Introduction

1. There is before the Court an Application in a Case by the applicant, Mr Matthews, for default judgment against the respondent, Mr Hargreaves, in relation to Mr Matthews’ human rights complaint on the ground of alleged disability discrimination.

2. The Application in a Case was made on 8 March 2011, and whilst relying on the wrong provisions in the Federal Magistrates Court Rules 2001 (Cth)[1] it is easily understood to be an application for default judgment under r.13.03B(2)(d) by reason of an alleged failure by Mr Hargreaves to comply with an order of the Court.[2] That order was an order (Order 3) made by the Court on 29 November 2010 which relevantly provided that:

   3. The respondent file electronically and serve by registered post any affidavits, including all documents, to be relied upon at hearing by 28 February 2011.

   [1] “FMC Rules”.

   [2] See FMC Rules, r.13.03A(2)(b)(iii).

3. The order is not an absolute one. That is, it does not oblige Mr Hargreaves to file an affidavit and documents, but rather to file “any” affidavit and documents he intends to rely on at hearing.

4. The failure by Mr Hargreaves to file any affidavit and documents in accordance with Order 3 might mean that he does not intend to lead any evidence, or rely upon any documents, at the hearing. If that be so it may cause Mr Hargreaves some evidentiary difficulties, the hearing being one to be conducted by way of affidavits to stand as examination-in-chief. It may be, however, that Mr Hargreaves is simply heeding Oliver Cromwell’s advice, and keeping his powder dry,[3] until mediation was over (which it now is, having been terminated by the Registrar), and that he will file, in accordance with Order 5(b)(i) of the orders of 29 November 2010 further affidavits and documents upon which he intends to rely by 24 May 2011. If Mr Hargreaves does not do so then, as indicated above, he will have significant difficulties in running an affirmative evidentiary case. In any event, the failure to file affidavits and documents under Order 3 does not itself entitle Mr Matthews to default judgment, because it is not of itself a default, as Mr Hargreaves was not obliged to file affidavits and documents pursuant to that order. Further, it may be that affidavits and documents will be filed by Mr Hargreaves by 24 May 2011 in accordance with Order 5(b)(i).

   [3] When his army was about to cross a river Oliver Cromwell (1599-1658), the English soldier and statesman, was alleged to have said: “Put your trust in God, my boys, and keep your powder [gunpowder] dry”: R Allen, Allen’s Dictionary of English Phrases (London: Penguin Books, 2006) page 574.

5. It may be that Mr Hargreaves is not, or will not, be going into evidence. It may be that he has some so far hidden legal point that he believes will win him the case, and which will emerge when he files an outline of submissions in accordance with Order 5(b)(ii) by 24 May 2011. These options are all courses of action still open to Mr Hargreaves, and which, together with the fact that there is presently no actual failure to comply with an order of the Court, make it inappropriate to grant the Application in a Case for default judgment.[4]

   [4] In Huang v Abayawickrama & Anor [2011] FMCA 235 it was said that: “Orders dismissing proceedings for default in compliance with earlier orders of the Court should only be made where the step which is required to be taken is one which is necessary for the forward conduct of the matter…” at para.4 per Cameron FM.

6. If as a consequence of the filing of any affidavits and documents by Mr Hargreaves by 24 May 2011, the Court is of the view that it has been done to obtain a tactical advantage in the litigation, or the filing by 24 May 2011, in the Court’s view, disadvantages Mr Matthews for any reason, it will be open to the Court to remedy that disadvantage by making further orders at, or prior to, the hearing which might include allowing Mr Matthews to give oral evidence in addition to any affidavit evidence he has filed.

7. Mr Matthews’ Application in a Case for default judgment will therefore be dismissed. Given that both parties are self-represented, and the hearing has been a very short one conducted by telephone, there will be no order as to costs.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Lucev FM

Date:  13 April 2011