Mondal v Transclean Facilities Pty Ltd (No 4)

[2021] FCCA 596

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

1. 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”).

2. 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)”).

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. 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

4. 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.

5. 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.

6. 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. 

7. 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

8. 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.

9. The approach that should be taken to the default provisions of the Rules has been considered by the Federal Court in University of New South Wales v Huang [2012] FCA 308.

10. I note that the issue as to whether the Court should exercise its power to dismiss proceedings, either for failure to comply with orders or for want of prosecution, has also been dealt with by decisions of the Federal Court of Australia, such as Winn v Yeo as former trustee of the estate of Goodwin (a bankrupt) [2020] FCA 552 where the Court said at paragraph [44]:

    …the history of the appellant’s non-compliance “is such as to indicate an inability or unwillingness to cooperate with the court and the other party” in having the appeal ready for hearing within an acceptable period: see Khera v Jones [2008] FCA 548 at [17] - [18], quoting Lenijamar Pty Ltd v AGC (Advances) Ltd [1990] FCA 520; (1990) 27 FCR 388 at 396 (Wilcox and Gummow JJ).

11. This decision referred to the decision of the Federal Court in Lenijamar Proprietary Limited v AGC (Advances) Limited [1990] FCA 520 (“Lenijamar”) which dealt with the discretion that is enlivened in the face of the demonstrated non-compliance and the inability of the applicant to do so and considered the matters that were relevant for that purpose. The statement in Lenijamar has been referred to and adopted in many subsequent cases such as Wu v Avin Operations Proprietary Limited (2006) FCA 36 where the Federal Court said at paragraphs [48] - [50] said:

    48Order 35A of the Rules collects together all the provisions relating to the Court’s procedures on default, including the former O 10 r 8. Order 10 r 8, which was introduced by the Federal Court Amendment Rules 2001 (No 3), elaborated on an existing power under Order 10 r 7. This rule provided that, if a party had failed to comply with an order of the Court directing the party to take a step in the proceeding, any other party could move the Court on notice for an order that the proceeding be stayed or dismissed as against an applicant in default, or for judgment or an order against a respondent in default.

    49In Lenijamar Pty Ltd v AGC (Advances) Ltd [1990] FCA 520; (1990) 27 FCR 388 ("Lenijamar"), Wilcox and Gummow JJ considered the nature of the Court’s power when a party is in default. Although Lenijamar concerned the former O 10 r 7, certain of their Honours’ observations can be applied to O 35A: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2004] FCA 1718 ("Cadbury Schweppes") at [22]-[23] per Ryan J. As with O 35A, the power given by the former O 10 r 7 is conditioned only upon the failure of the party to comply with an order of the Court directing that party to take a step in the proceeding. There is no requirement of intentional default or contumelious conduct, or of inordinate and inexcusable delay, or of prejudice to the other party: Lenijamar at 395-396. These are, however, usually important factors to be weighed in the exercise of the discretion. Further, the power conferred on the Court must be "administered sensibly and with an appreciation both of the fact that some delays are unavoidable, and unpredictable ... and of the likely serious consequences to [the party in default]": Lenijamar at 396.

    50In Lenijamar, Wilcox and Gummow JJ also observed that, while it was undesirable to make any exhaustive statement of the circumstances in which the power granted by O 10 r 7 would be appropriately exercised, there were two obvious candidates for such exercise: "cases in which the history of non-compliance ... is such as to indicate an inability or unwillingness to co-operate with the Court and the other party or parties in having the matter ready for trial within an acceptable period and cases ... in which the non-compliance is continuing and occasioning unnecessary delay, expense or other prejudice to the [other party]": Lenijamar at 396.

12. In Lenijamar, Wilcox and Gummow JJ when dealing with a power of dismissal for non-compliance with directions of the Court in the former Order 10, Rule 7 of the Federal Court Rules 2011 said (at paragraph [36]):

    The discretion conferred by order 10, r 7 is unconfined, except for the condition of non-compliance with a direction. As it is impossible to foresee all of the circumstances under which the rule might be sought to be used, it is undesirable to make any exhaustive statement of the circumstances under which the power granted by the rule will appropriately be exercised. We will not attempt to do so. But two situations are obvious candidates for the exercise of the power: cases in which the history of non-compliance by an applicant is such as to indicate an inability or unwillingness to co-operate with the Court and the other party or parties in having the matter ready for trial within an acceptable period and cases - whatever the applicant's state of mind or resources - in which the non-compliance is continuing and occasioning unnecessary delay, expense or other prejudice to the respondent. Although the history of the matter will always be relevant, it is more likely to be decisive in the first of these two situations. Even though the most recent non-compliance may be minor, the cumulative effect of an applicant's defaults may be such as to satisfy the judge that the applicant is either subjectively unwilling to co-operate or, for some reason, is unable to do so. Such a conclusion would not readily be reached; but, where it was, fairness to the respondent would normally require the summary dismissal of the proceeding.

13. These statements have been referred to and adopted in many subsequent cases[1] and in my respectful view are equally apposite in the present case.

    [1] Singh & Khan [2021] FCA 140

    CONSIDERATON

14. The matters referred to in Lenijamar have been taken into account. The conduct of this matter by the applicant has, on any description, been dilatory. When asked by the Court today, for an explanation for his ongoing non-compliance, the applicant said that since his former lawyer withdrew he has struggled to find a new lawyer.  He said he has tried, but he claimed that due of COVID, his working situation and his finances, he has been unable to do so.

15. The applicant acknowledged that he has been on notice of the need to file an amended statement of claim in conformity with the reasons set out in Mondal (No.2). He acknowledged that he has failed to do so and had time to get another lawyer.  He acknowledged he has also failed to (despite having the opportunity to do so) put evidence before the Court that would corroborate the claims made this day when being asked to explain the dilatory conduct of this matter by and on his behalf, and his ongoing non-compliance of orders made by the Court and he had failed to do so.

16. Not surprisingly, and as they have averted to on two previous occasions, both the first and second respondents urged the Court to exercise its power pursuant to Rules 13.03A and 13.03B of the Rules to dismiss the proceedings. The applicant has unfortunately placed himself in a position where, because of the history of this matter, his failure to comply with orders, the ineluctable conclusion that the Court is driven to is that the discretion set out in those Rules should be exercised because, having regard to the Federal Circuit Court of Australia Act 1999 (Cth) which governs the operation of this Court and the Rules which ensure that the Court (which should operate as informally and expeditiously as possible) is entitled to insist on compliance by parties with orders it makes.

17. The farrago of allegations made by the applicant in this matter has defied repeated attempts and orders directing him to put the material in proper form, so that all parties (and in particular, the Court) could have an opportunity to determine the controversy. The applicant has demonstrated an extraordinary inability to do so, despite him being given every opportunity to do so over an extended period.

18. In the circumstances, and given that the applicant had every opportunity to get a properly pleaded statement of claim before the Court, has acknowledged that he was ordered to do so some time ago and there is no acceptable explanation for why it has not been done, the Court makes orders this day dismissing the proceedings for those reasons.

19. As it has been foreshadowed today in submissions, the respondents may be instructed to making an application for costs. If they do so, then I would propose to deal with any such application in the same means as was set out in the orders made for the reasons set out in Mondal (No.2). Any application for costs, along with written submissions of no more than three pages, and any affidavit in support is to be filed and served within seven days and any response thereto, along with written submissions and any affidavit in support be filed and served seven days thereafter. Unless otherwise requested in those submissions and any such application will be considered on the papers.

    CONCLUSION

20. Therefore, for those reasons the Court will make the orders as set out at the beginning of these reasons for decision.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Sullivan.

Associate:

Dated:       12 March 2021