FEDERAL CIRCUIT COURT OF AUSTRALIA
Mondal v Transclean Facilities Pty Ltd (No 4) [2021] FCCA 596
File number(s): MLG 744 of 2019 Judgment of: JUDGE O’SULLIVAN Date of judgment: 12 March 2021 Catchwords: INDUSTRIAL LAW – failure by the applicant to comply with orders of the Court – whether the applicant is in default – whether the proceedings should be dismissed – proceedings dismissed. Legislation: Federal Circuit Court Rules 2001 (Cth) rr 13.03A(1), 13.03B(1), 7, 21
Federal Court Rules 2011 (Cth)
Federal Circuit Court of Australia Act 1999 (Cth)
Cases cited: Mondal v Transclean Facilities Proprietary Limited & Anor (2020) FCCA 1334
Mondal v Transclean Facilities Proprietary Limited & Anor (No.2) (2020) FCCA 2944
Mondal v Facilities Proprietary Limited & Anor (No.3) (2020) FCCA 3348
University of New South Wales v Huang [2012] FCA 308
Winn v Yeo as former trustee of the estate of Goodwin (a bankrupt) [2020] FCA 552
Lenijamar Proprietary Limited v AGC Advances Limited (1990) FCA 520
Wu v Avin Operations Proprietary Limited (2006) FCA 36
Number of paragraphs: 20 Date of hearing: 12 March 2021 Place: Melbourne (by telephone link) Applicant: Self-Represented Solicitor for the First Respondent: Stephen Peter Byrne Solicitor for the Second Respondent: Neesham White Gentle ORDERS
MLG744 of 2019 BETWEEN: SUBRATA MONDAL
Applicant
AND: TRANSCLEAN FACILITIES PTY LTD
First Respondent
SHAYAN DATTA
Second Respondent
ORDER MADE BY:
JUDGE O'SULLIVAN
DATE OF ORDER:
12 MARCH 2021
THE COURT ORDERS THAT:
1.Pursuant to Rules 13.03A(1)(a) and (e) and 13.03B(1)(a) of the Federal Circuit Court Rules 2001, the proceedings be dismissed.
2.Any application for costs (along with any affidavit and submissions of no more than three pages) be filed and served within seven days and any response thereto (along with any affidavit and submissions of no more than three pages) be filed and served seven days thereafter.
AND THE COURT NOTES THAT:
A.The applicant failed to comply with the orders made for the reasons set out in Mondal v Transclean Pty Ltd & Anor [2020] FCCA 1334 and Mondal v Transclean Pty Ltd & Anor (No.2) [2020] FCCA 2944.
B.Any application for costs made pursuant to order 2 will be considered on the papers unless requested otherwise in submissions.
REASONS FOR JUDGMENT
(Revised from transcript)INTRODUCTION
Before the Court today are proceedings between Subrata Mondal (“the applicant”), Transclean Facilities Proprietary Limited (“the first respondent”) and Mr Shayan Datta (“the third respondent”).
The background to these proceedings is set out in three decisions of the Court published as Mondal v Transclean Facilities Proprietary Limited & Anor (2020) FCCA 1334 (“Mondal (No.1)”), Mondal v Transclean Facilities Proprietary Limited & Anor (No.2) (2020) FCCA 2944 (“Mondal (No.2)”), and finally, Mondal v Facilities Proprietary Limited & Anor (No.3) (2020) FCCA 3348 (“Mondal (No.3)”).
The Court made orders on 28 May 2020 for the reasons set out in Mondal (No.1). The applicant did not comply. The Court made orders for the reasons set out in Mondal (No.2) on 30 October 2020.…
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Details
- Case
- [2021] FCCA 596
- Decision Date
CaseChat Overview and Summary
In *Mondal v Transclean Facilities Pty Ltd (No 4)*, O’Sullivan J of the Federal Circuit Court of Australia considered the applicant's persistent failure to comply with court orders and file an adequate amended statement of claim. The proceedings had a protracted and difficult history, with previous statements of claim being struck out and multiple opportunities granted to the applicant to rectify the pleadings, even after his solicitors withdrew and he became unrepresented.
The central legal issue before the Court was whether it should exercise its power under Rules 13.03A(1) and 13.03B(1) of the *Federal Circuit Court Rules 2001* (Cth) to dismiss the proceedings due to the applicant's default. The Court noted that the applicant had failed to comply with court orders, file required documents, and prosecute the proceeding with due diligence, all of which constitute default under Rule 13.03A(1).
O’Sullivan J reasoned that the applicant had demonstrated a singular inability or unwillingness to cooperate with the court and the respondent in progressing the matter. Despite repeated warnings and opportunities, the applicant had not complied with court orders, nor had he provided any evidence to explain or excuse his non-compliance. The Court found that the applicant was in default under the Rules.
Consequently, the Court ordered that the proceedings be dismissed for failure to comply with court orders and failure to prosecute the proceeding with due diligence.
The central legal issue before the Court was whether it should exercise its power under Rules 13.03A(1) and 13.03B(1) of the *Federal Circuit Court Rules 2001* (Cth) to dismiss the proceedings due to the applicant's default. The Court noted that the applicant had failed to comply with court orders, file required documents, and prosecute the proceeding with due diligence, all of which constitute default under Rule 13.03A(1).
O’Sullivan J reasoned that the applicant had demonstrated a singular inability or unwillingness to cooperate with the court and the respondent in progressing the matter. Despite repeated warnings and opportunities, the applicant had not complied with court orders, nor had he provided any evidence to explain or excuse his non-compliance. The Court found that the applicant was in default under the Rules.
Consequently, the Court ordered that the proceedings be dismissed for failure to comply with court orders and failure to prosecute the proceeding with due diligence.
Orders
Orders of the court
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Background
Background to the litigation
The Court made orders on 28 May 2020 for the reasons set out in Mondal (No.1). The applicant did not comply. The Court made orders for the reasons set out in Mondal (No.2) on 30 October 2020. The applicant did not comply. The applicant was reminded of the need to comply with those orders when the Court made orders for the reasons set out in Mondal (No.3) on 10 December 2020. The applicant did not, and still has not complied and has provided no evidence to explain or seek to excuse that non-compliance. BACKGROUND For the reasons set out in Mondal (No.2), the proceedings were adjourned to today to give the applicant another opportunity to file an amended statement of claim. The previous statement of claim having been struck out for the reasons set out in Mondal (No.1). That decision sets out the history of the matter prior to those orders. To describe these proceedings as having an unfortunate history does not even come close. Matters have also been further complicated by virtue of the fact that, since the Court made orders for the reasons set out in Mondal (No.2), the applicant has been unrepresented. The solicitors who previously acted for him had by then withdrawn. However, the un-contradicted background shows that throughout these proceedings (and whether he was represented or not) the applicant has shown a singular inability to get before the Court an adequate set of pleadings. The Court has allowed and granted leave to the applicant to attempt to do so because of the factual morass that had been set out by the applicant suggested there may have been a tenable cause of action, at least in relation to some of the period traversed, in the various iterations of the (to date flawed) pleadings. However, as the three decisions that have been referred to earlier in these reasons make clear the conduct of this matter by or behalf of the applicant demonstrates an inability or unwillingness to cooperate with the Court and the other parties in having this matter dealt with within an acceptable period. This gave rise to the need to raise with the parties (although this had been raised over five months ago) and at the time that the reasons for decision in Mondal (No.2) were handed down in October 2020 that the proceedings may be dismissed for non-compliance. This was again raised at the time that the reasons in Mondal (No.3) were handed down in December 2020. That is why today the Court told the parties when they announced their appearances that they needed to make submissions as to whether the Court should exercise the power available to it, in the face of that non-compliance, to dismiss the proceedings under Rule 13.03A(1) and 13.03B(1) of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”). It is not controversial that the applicant has failed to comply with Court orders.DEFAULT UNDER RULES The relevant provisions of the Rules and in particular 13.03A(1), 13.03B(1) and 13.03B(6) provide for the Court to take steps in the event of a default by the applicant. The Rules provide (inter alia):Rule 13.03A:(1) For rule 13.03B, an applicant is in default if the applicant fails to:(a) comply with an order of the Court in the proceeding; or (b) file and serve a document required under these Rules; or (c) produce a document as required by Part 14; or (d) do any act required to be done by these Rules; or (e) prosecute the proceeding with due diligence. (2) For rule 13.03B, a respondent is in default if the respondent:(a) has not satisfied the applicant's claim; and(b) fails to:(i)give an address for service before the time for the respondent to give an address has expired; or (ii)file a response before the time for the respondent to file a response has expired; or (iii) comply with an order of the Court in the proceeding; or (iv) file and serve a document required under these Rules; or Rule13.03B(1) If an applicant is in default, the Court may order that: (a)the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the applicant; or (b)a step in the proceeding be taken within the time limited in the order; or (c)if the applicant does not take a step in the time mentioned in paragraph (b) -- the proceeding be stayed or dismissed, as to the whole or any part of the relief claimed by the applicant. (2) If a respondent is in default, the Court may: (a)order that a step in the proceeding be taken within the time limited in the order; or (b)if the claim against the respondent is for a debt or liquidated damages -- grant leave to the applicant to enter judgment against the respondent for: (i) the debt or liquidated damages; and (ii) if appropriate -- costs; or (c)if the proceeding was commenced by an application supported by a statement of claim or the Court has ordered that the proceeding continue on pleadings - give judgment against the respondent for the relief that:(i) the applicant appears entitled to on the statement of claim; and (ii) the Court is satisfied it has power to grant; or (d) give judgment or make any other order against the respondent; or (e)make an order mentioned in paragraph (b), (c) or (d) to take effect if the respondent does not take a step ordered by the Court in the proceeding in the time limited in the order.(3) The Registrar must enter judgment for the debt or liquidated damages, costs and interest against the respondent as specified in leave granted under paragraph (2) (b), without giving notice, or further notice, to the respondent, if the applicant has filed in the Registry: (a) an affidavit, or affidavits, proving: (i)service of the application claiming judgment for the debt or liquidated damages; and (ii) that the respondent is in default; and (b)an affidavit for the debt or liquidated damages in accordance with the approved form. (4) Unless the Court otherwise orders, if a respondent to a cross-claim is in default: (a)a judgment or decision on any claim, question or issue in the proceeding on the originating process; or (b) any other cross-claim in the proceeding;is binding as between the cross-claimant and the respondent to the cross-claim, to the extent that the judgment or decision is relevant to any claim, question or issue in the proceeding on the cross-claim. (5) In subrule (4): decision includes a decision by consent. judgment includes a judgment by default or by consent. (6) The Court may make an order of the kind mentioned in subrule (1), (2) or (4), or any other order, or may give any directions, and specify any consequences for non-compliance with the order, that the Court thinks just.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
The relevant provisions of the Rules and in particular 13.03A(1), 13.03B(1) and 13.03B(6) provide for the Court to take steps in the event of a default by the applicant. The Rules provide (inter alia):Rule 13.03A:(1) For rule 13.03B, an applicant is in default if the applicant fails to:(a) comply with an order of the Court in the proceeding; or (b) file and serve a document required under these Rules; or (c) produce a document as required by Part 14; or (d) do any act required to be done by these Rules; or (e) prosecute the proceeding with due diligence. (2) For rule 13.03B, a respondent is in default if the respondent:(a) has not satisfied the applicant's claim; and(b) fails to:(i)give an address for service before the time for the respondent to give an address has expired; or (ii)file a response before the time for the respondent to file a response has expired; or (iii) comply with an order of the Court in the proceeding; or (iv) file and serve a document required under these Rules; or Rule13.03B(1) If an applicant is in default, the Court may order that: (a)the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the applicant; or (b)a step in the proceeding be taken within the time limited in the order; or (c)if the applicant does not take a step in the time mentioned in paragraph (b) -- the proceeding be stayed or dismissed, as to the whole or any part of the relief claimed by the applicant. (2) If a respondent is in default, the Court may: (a)order that a step in the proceeding be taken within the time limited in the order; or (b)if the claim against the respondent is for a debt or liquidated damages -- grant leave to the applicant to enter judgment against the respondent for: (i) the debt or liquidated damages; and (ii) if appropriate -- costs; or (c)if the proceeding was commenced by an application supported by a statement of claim or the Court has ordered that the proceeding continue on pleadings - give judgment against the respondent for the relief that:(i) the applicant appears entitled to on the statement of claim; and (ii) the Court is satisfied it has power to grant; or (d) give judgment or make any other order against the respondent; or (e)make an order mentioned in paragraph (b), (c) or (d) to take effect if the respondent does not take a step ordered by the Court in the proceeding in the time limited in the order.(3) The Registrar must enter judgment for the debt or liquidated damages, costs and interest against the respondent as specified in leave granted under paragraph (2) (b), without giving notice, or further notice, to the respondent, if the applicant has filed in the Registry: (a) an affidavit, or affidavits, proving: (i)service of the application claiming judgment for the debt or liquidated damages; and (ii) that the respondent is in default; and (b)an affidavit for the debt or liquidated damages in accordance with the approved form. (4) Unless the Court otherwise orders, if a respondent to a cross-claim is in default: (a)a judgment or decision on any claim, question or issue in the proceeding on the originating process; or (b) any other cross-claim in the proceeding;is binding as between the cross-claimant and the respondent to the cross-claim, to the extent that the judgment or decision is relevant to any claim, question or issue in the proceeding on the cross-claim. (5) In subrule (4): decision includes a decision by consent. judgment includes a judgment by default or by consent. (6) The Court may make an order of the kind mentioned in subrule (1), (2) or (4), or any other order, or may give any directions, and specify any consequences for non-compliance with the order, that the Court thinks just.
Ratio Decidendi
Legal Principle Established
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