FEDERAL COURT OF AUSTRALIA
Moss v Aquisite Pty Ltd [2024] FCA 455
Appeal from: Aquisite Pty Ltd v Moss [2023] FCA 410 File number(s): VID 398 of 2023 Judgment of: O’CALLAGHAN J Date of judgment: 2 May 2024 Date of publication of reasons: 3 May 2024 Catchwords: PRACTICE AND PROCEDURE – application to dismiss appeal for want of prosecution and failure to comply with directions – appeal dismissed Legislation: Federal Court of Australia Act 1976 (Cth) ss 25(2B), 25(2B)(ba), 25(2B)(bb)(i), 37M
Federal Court Rules 2011 (Cth) rr 36.11(2), 36.11(2)(h), 36.11(2)(j)(i), 36.74, 36.74(1)(a), 36.74(1)(d), 36.74(2)
Cases cited: Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388
Division: General Division Registry: Victoria National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Number of paragraphs: 50 Date of hearing: 2 May 2024 Counsel for the Appellant: B J Murphy Solicitor for the Appellant: Bancroft Lawyers Counsel for the Respondent: S J Maiden KC with L H O’Rorke Solicitor for the Respondent: Aitken Partners ORDERS
VID 398 of 2023 BETWEEN: PAUL ROBERT MOSS
Appellant
AND: AQUISITE PTY LTD
Respondent
ORDER MADE BY:
O’CALLAGHAN J
DATE OF ORDER:
2 MAY 2024
THE COURT ORDERS THAT:
1.The respondent be granted leave to amend its interlocutory application dated 19 April 2024 by adding “and section 25(2B)(bb)(i)” to paragraph 1 between the words “section 25(2B)(ba)” and “of the Federal Court Act 1976 (Cth)”.
2.The appeal be dismissed pursuant to sections 25(2B)(ba) and 25(2B)(bb) of the Federal Court of Australia Act 1976 (Cth).
3.The assessment of the respondent’s costs of the appeal be referred to a Registrar of this court for determination.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
ORDERS
VID 398 of 2023 BETWEEN: PAUL ROBERT MOSS
Appellant
AND: AQUISITE PTY LTD
Respondent
ORDER MADE BY:
O’CALLAGHAN J
DATE OF ORDER:
3 MAY 2024
THE COURT ORDERS THAT:
1.Pursuant to rule 40.02(a) of the Federal Court Rules 2011 (Cth), the appellant pay the respondent’s costs of the appeal and of the interlocutory application dated 19 April 2024 on an indemnity basis.
2.The assessment of the respondent’s costs be determined on a lump sum basis.
[Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011]
REASONS FOR JUDGMENT
O’CALLAGHAN J:
INTRODUCTION
By interlocutory application dated 19 April 2024, the respondent sought orders:
(a)dismissing the appeal for want of prosecution or failure to comply with directions;
(b)requiring the appellant to pay the respondent’s costs of the appeal on an indemnity basis; and
(c)fixing the costs in a lump sum to be determined, or for the assessment of costs on such other basis as the court sees fit.
The respondent relied on affidavits sworn by its solicitor, Oren Polichtuk, on 19 April 2024 and 30 April 2024 respectively.
The appellant relied on an affidavit…
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- AGLC
- Moss v Aquisite Pty Ltd [2024] FCA 455
- Case
- [2024] FCA 455
- Decision Date
CaseChat Overview and Summary
The court had to decide whether the appellant's lack of cooperation and persistent non-compliance justified dismissing the appeal. The court considered the appellant's history of non-compliance, which included delays in filing the appeal book and other required documents, despite being represented by legal counsel. The respondent's ability to prepare for the appeal and the ongoing financial burden placed on them due to the delays were also factors the court considered.
The court concluded that the appellant's conduct demonstrated an inability or unwillingness to cooperate with the court and the respondent, which prejudiced the respondent's ability to prepare for the appeal. The court found that the exercise of its discretion to dismiss the appeal was warranted given the appellant's persistent non-compliance and the resulting delays and costs incurred by the respondent. The court dismissed the appeal and ordered the appellant to pay the respondent's costs on an indemnity basis.
Orders
Orders of the court
1. Pursuant to rule 40.02(a) of the Federal Court Rules 2011 (Cth), the appellant pay the respondent’s costs of the appeal and of the interlocutory application dated 19 April 2024 on an indemnity basis.
2. The assessment of the respondent’s costs be determined on a lump sum basis.
[Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011]
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
The respondent also sought leave, which I granted yesterday, to amend paragraph 1 of its interlocutory application permitting it also to rely on s 25(2B)(bb)(i) of the Act.CONSIDERATION The appellant has failed to prosecute his appeal at every turn. In all the circumstances, in my view, 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, or at all. See Khera v Jones [2008] FCA 548 at [17]–[18] (Buchanan J), quoting Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388 at 396 (Wilcox and Gummow JJ) as follows:The discretion conferred … 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 cooperate 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 cooperate 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. Further, the power to dismiss an appeal for want of prosecution “must not be lightly exercised”. See Van Reesema v Giameos (1979) 27 ALR 525 at 530 (Bowen CJ, Fisher and Lockhart JJ). In my view, in this case the nature of the appellant’s conduct — or rather lack of it — makes the exercise of that power appropriate. As the respondent submitted, the following factors weigh strongly in favour of dismissing the appeal:(a)The failure of the respondent to file an outline of submissions or the appeal book on time, and the continued failure to do so nearing two weeks prior to the date set down for hearing is something that, self-evidently, prejudices the respondent’s ability to draw its own submissions and prepare for the appeal;(b)The timetabling orders imposed by the court were made in consultation with the parties and are not unreasonable in any respect;(c)Until the day before the hearing, the appellant had not provided the court with any explanation for his non-compliance, sought further time to comply with the relevant requirements, or applied for any adjournment of the 16 May 2024 hearing;(d)The appellant has been represented by a solicitor and counsel, so the court can infer that he has been properly advised of his rights and obligations in connection with the appeal;(e)The final orders made below have not been stayed, such that the appellant now owes the respondent a judgment debt of $801,743.57, and the appeal is delaying the progress of the respondent’s bankruptcy proceedings and has caused the respondent to incur the costs of multiple adjournments of that proceeding.