Murabito v Westview Frames and Trusses (NSW) Pty Ltd

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FEDERAL COURT OF AUSTRALIA

Murabito v Westview Frames and Trusses (NSW) Pty Ltd [2024] FCA 1385

Appeal from: Westview Frames and Trusses (NSW) Pty Ltd v Murabito [2022] FedCFamC2G 897
File number(s): NSD 1031 of 2022
Judgment of: CHEESEMAN J
Date of judgment: 5 December 2024
Catchwords: PRACTICE AND PROCEDURE – application to dismiss appeal for want of prosecution and/or failure to comply with directions of the Court – where appellant has repeatedly failed to comply with the timetable entered by the Court, including where extensions in favour of the appellant had been granted – where appellant has failed to attend before a Registrar to settle appeal books – whether to dismiss the appeal under s 25(2B) of the Federal Court of Australia Act 1976 (Cth) – Held: Application granted, appeal dismissed.
Legislation:

Federal Court of Australia Act 1976 (Cth) ss 25(2B), 37M, 37N

Federal Court of Australia Rules 2011 (Cth) rr 1.34, 5.23, 36.11, 36.74

Federal Court Rules 1967 (Cth) O 10 r 7
Cases cited:

Eep18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 793

Lenijamar Pty Ltd v AGC (Advances) Ltd [1990] FCA 745; 27 FCR 388

Nandutu v Chapman (No 2) [2021] FCA 45

Nepal v Minister for Immigration and Border Protection [2015] FCA 366

Van Reesema v Giameos (1979) 27 ALR 525

Wade v AMI Australia Holdings Pty Ltd [2010] FCAFC 120; 274 ALR 431

Westview Frames and Trusses (NSW) Pty Ltd v Murabito [2022] FedCFamC2G 897

Winn v Yeo as former trustee of the estate of Goodwin (a bankrupt) [2020] FCA 552
Division: General Division
Registry: New South Wales
National Practice Area: Commercial and Corporations
Sub-area: General and Personal Insolvency
Number of paragraphs: 87
Date of hearing: 31 October 2024
Counsel for the Appellant: The appellant appeared in person, with the assistance of a McKenzie friend
Counsel for the First Respondent: Mr R Parsons
Solicitor for the First Respondent: O’Neill Partners Commercial Lawyers
Counsel for the Second Respondent:  Mr D C Eardley

ORDERS

NSD 1031 of 2022
BETWEEN:

STEVEN SAMUEL MURABITO

Appellant
AND:

WESTVIEW FRAMES AND TRUSSES (NSW) PTY LTD ACN 150 774 628

First Respondent

ANDREW BARDEN

Second Respondent

ORDER MADE BY:

CHEESEMAN J

DATE OF ORDER:

5 DECEMBER 2024

THE COURT ORDERS THAT:

1.The requirement in relation to service of the interlocutory application dated 2 October 2024 pursuant to r 36.74(2) of the Federal Court of Australia Rules 2011 (Cth) be dispensed with pursuant to r 1.34 of the Rules.

2.The appeal be dismissed pursuant to s 25(2B)(ba) and s 25(2B)(bb) of the Federal Court of Australia Act 1976 (Cth).

3.The appellant pay the respondents’ costs of the appeal.

4.The appellant pay the first respondent’s costs of the interlocutory application.

5.In the absence of agreement on the costs payable pursuant to order 3 and or 4, costs are to be determined by a Registrar on a lump sum basis.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

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Details
Case
[2024] FCA 1385
Decision Date

CaseChat Overview and Summary

The matter of Murabito v Westview Frames and Trusses (NSW) Pty Ltd involved an appeal filed by Mr Murabito against a sequestration order made by a Registrar. Westview, the respondent, applied to dismiss the appeal for want of prosecution and failure to comply with court directions. The Federal Circuit and Family Court heard the application, which was made outside the presence of Mr Murabito who arrived late, accompanied by his wife acting as his McKenzie friend. The procedural history revealed multiple instances of Mr Murabito's failure to comply with court orders, extensions granted, and missed deadlines.

The legal issues before the court were whether to dismiss the appeal under s 25(2B) of the Federal Court of Australia Act 1976 (Cth) for want of prosecution and failure to comply with court directions. The court balanced the interests of Mr Murabito in maintaining his right to appeal against the respondent's interest in concluding the matter efficiently. The court noted that dismissal of an appeal is a drastic remedy and should be sparingly used, but also emphasised the importance of efficient use of court resources and the overarching purpose of facilitating just resolution of disputes.

The court found that Mr Murabito's conduct demonstrated an unwillingness to cooperate with the court and the respondents, causing unnecessary delays and expenses. His multiple failures to comply with court orders and the lack of progress towards hearing the appeal justified the dismissal. The court held that dismissing the appeal was appropriate given the circumstances and granted the application. The final orders included dismissing the appeal, requiring Mr Murabito to pay the respondents' costs, and allowing the costs of the interlocutory application to be determined by a Registrar if the parties could not agree.

In conclusion, the court dismissed Mr Murabito's appeal for want of prosecution and failure to comply with directions, and ordered him to pay the respondents' costs. This decision reflects the court's balanced approach in considering the interests of both parties and the importance of efficient use of judicial resources.

Orders

Orders of the court

1. The requirement in relation to service of the interlocutory application dated 2 October 2024 pursuant to r 36.74(2) of the Federal Court of Australia Rules 2011 (Cth) be dispensed with pursuant to r 1.34 of the Rules.

2. The appeal be dismissed pursuant to s 25(2B)(ba) and s 25(2B)(bb) of the Federal Court of Australia Act 1976 (Cth).

3. The appellant pay the respondents’ costs of the appeal.

4. The appellant pay the first respondent’s costs of the interlocutory application.

5. In the absence of agreement on the costs payable pursuant to order 3 and or 4, costs are to be determined by a Registrar 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

The interests that must be balanced in exercising this power are relevantly summarised by Stewart J in Nandutu v Chapman (No 2) [2021] FCA 45 at [22]-[23]:22 On the authorities, I accept that dismissal of an appeal for want of prosecution is a drastic remedy that should be sparingly resorted to, that a court should not lightly deprive a litigant of their right of appeal, and that each case turns on its own facts and circumstances. It is also the case that the respondent to an appeal has a key interest in being able to enjoy the fruits of the judgment that is appealed from and to bring the appeal to a reasonably quick and efficient conclusion. These divergences in interests must be balanced. 23 However, there are also other interests that must be brought into consideration. These include the overarching purpose of the civil practice and procedure of the Court which is to facilitate the just resolution of disputes “as quickly, inexpensively and efficiently as possible”: s 37M(1) of the Act. Parties to a civil proceeding, including an appeal, must conduct the proceeding in a way that is consistent with the overarching purpose: s 37N(1) of the Act. These provisions, and the jurisprudence of the Court, recognise the broader public interest and the interest of other litigants in other cases in having proceedings brought to a just and efficient conclusion: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 at [5] and [30] per French CJ, [93]-[98] per Gummow, Hayne, Crennan, Kiefel and Bell JJ.BACKGROUND The act of bankruptcy which formed the basis of the sequestration order was Mr Murabito’s failure to comply with a bankruptcy notice in respect of payment of a judgment debt issued on the application of Westview against Mr Murabito on 10 March 2021. A sequestration order was made by a Registrar on 7 April 2022. Mr Murabito applied to the Federal Circuit and Family Court for review of the sequestration order. The application was heard on 14 and 28 June 2022 and 31 October 2022. The application for review was dismissed on 2 November 2022. The present appeal was filed on 30 November 2022.PROCEDURAL HISTORY Westview’s application to dismiss the appeal was heard on 31 October 2024. The matter was called outside the Court and commenced in the absence of Mr Murabito. Mr Murabito arrived around ten minutes later, accompanied by his wife. Mrs Murabito acted as his McKenzie friend (see generally Nepal v Minister for Immigration and Border Protection [2015] FCA 366 at [14]-[16] (Edelman J)). I considered it to be in the interests of justice to permit Mrs Murabito to act as a McKenzie friend to Mr Murabito. The following is an abbreviated chronological narrative of the procedural history which lead to this application. At the time of Mr Murabito filing the notice of appeal on 30 November 2022, the solicitor acting for Mr Murabito was Nazley Khan of Blackstone Legal. At the first case management hearing on 16 March 2023, Mr Ardino, a solicitor of Di Lizio & Associates, appeared for Mr Murabito. Mrs Murabito was employed as Mr Ardino’s law clerk. It later transpired that a notice of appearance had not been filed by Mr Ardino. I made orders requiring Mr Murabito to file and serve any evidence on which he sought to rely for the interim relief sought in the notice of appeal. Mr Murabito did not provide any evidence within the time required, or at all.

Evidence

Evidence Before The Court

For the reasons which follow, I am satisfied that it is appropriate to make orders substantially as sought by Westview and to dismiss the appeal. EVIDENCE Westview relies upon two affidavits of Edwina Hall, solicitor at O’Neill Partners Commercial Lawyers, affirmed on 2 October 2024 and 21 October 2024. Ms Hall is the solicitor with the day-to-day carriage of the appeal for Westview. Mr Murabito relies upon a bundle of documents including a document styled as an affidavit, dated 31 October 2024. Mr Murabito was sworn in and adopted the contents of the “affidavit” on his oath in the witness box. Westview objected to several paragraphs of the affidavit, which in the main were resolved on the basis that those parts would be subject to a state of mind limitation and otherwise be treated as submissions. I upheld Westview’s objections in relation to Mr Murabito expressing conclusions as to his medical condition, which were not supported by medical evidence, and the probative value of which was substantially outweighed by the danger that the evidence might unfairly prejudice Westview and unduly waste time. An application for leave to cross-examine Mr Murabito was made during the hearing. In the circumstances of this application, I was not persuaded that leave should be granted. Given that I refused leave to cross-examine, I make no inferences of the type recognised in Browne v Dunn as a result of Westview not asking questions of Mr Murabito, including in relation to any inconsistency between the material in his affidavit and his other communications sent to the Court. Westview tendered a bundle of email correspondence between Mr Murabito, the Registry and the solicitors for Westview during the period 2 October 2024 to 31 October 2024. I will address these email exchanges to the extent they are relevant below. APPLICABLE PRINCIPLES The power to make an order that an appeal be dismissed pursuant to s 25(2B) of the FCA Act may be exercised by a single judge exercising appellate jurisdiction. Section 25(2B) relevantly provides:A single Judge (sitting in Chambers or in open court) or a Full Court may:…(ba)make an order that an appeal to the Court be dismissed for want of prosecution; or (bb)make an order that an appeal to the Court be dismissed for:(i) failure to comply with a direction of the Court; or (ii)failure of the appellant to attend a hearing relating to the appeal; or … The procedure by which a respondent may apply for such an order is found in r 36.74 of the Federal Court of Australia Rules 2011 (Cth) which provides:Application to dismiss appeal(1)A respondent may apply to the Court for an order that the appeal be dismissed for the failure by an appellant to do any of the following:(a) comply with a direction of the Court;(b) comply with these Rules;(c) attend a hearing relating to the appeal;(d) prosecute the appeal.(2) An application under subrule (1) must be served on the appellant:(a) at the appellant's address for service; or (b) personally.

Decision

Reasons for decision

Finally, pursuant to r 1.34 of the Rules I will make an order dispensing with the requirement in relation to service of the interlocutory application dated 2 October 2024 pursuant to r 36.74(2) of the Rules. I am satisfied that Mr Murabito was provided with unsealed documents on 2 October 2024, and sealed documents on 30 October 2024. The substantive content of the sealed documents was the same as the unsealed documents that had been provided earlier. The documents were provided to both Mr Ardino and to Mr Murabito by email. Mr Murabito was copied on the emails by which the date for hearing was settled. In these circumstances having regard to the procedural history, I am satisfied that it is appropriate to dispense with strict compliance with the formal requirements in relation to service.CONCLUSION Taken as a whole, Mr Murabito’s conduct demonstrates an inability or unwillingness to cooperate with the Court and the respondents in readying his appeal for hearing within an acceptable period. Mr Murabito’s conduct has occasioned unnecessary delay and expense to the respondents, who have continued to engage with the Registry in an effort to finalise the appeal books and prepare for hearing. To dismiss Westview’s application would have the likely consequence of imposing further delay and further cost exposure on the respondents, and also likely result in a further drain the limited resources of the Court, to the detriment of other litigants in the Court. Having regard to the overarching purpose in ss 37M and 37N of the FCA Act, I am satisfied that it is appropriate to exercise my direction to dismiss the proceedings for want of prosecution and for failure to comply with directions of the Court. I am satisfied that Westview has made out both grounds and I will exercise my discretion accordingly. Costs of the present application will follow the event. Having regard to the reasons for dismissing the appeal, it is appropriate that Mr Murabito pay the respondents’ costs of the appeal.

Ratio Decidendi

Legal Principle Established

On 30 October 2024, Westview emailed a sealed copy of the interlocutory application and supporting affidavit of Ms Hall to Mr Murabito. On 31 October 2024, Mr Murabito emailed Registry and Westview shortly before the commencement of the hearing stating he had not been properly served, had sought legal advice and requested an adjournment. Mr Murabito arrived at the hearing late, but as mentioned above, appeared to oppose the application with the assistance of his wife.CONSIDERATION Dismissal of an appeal for want of prosecution is a remedy that by its nature should be used sparingly. The Court is faced with balancing whether to deprive a litigant of their right of appeal against the interests of the respondent to an appeal in being able to enjoy the fruits of the judgment. The Court must also be conscious that the respondent also has an interest in bringing the appeal to a reasonably quick and efficient conclusion. More broadly, that interest is shared by other litigants in the Court and the public in efficiently using Court resources and promoting the objective of facilitating the just resolution of disputes “as quickly, inexpensively and efficiently as possible” in accordance with s 37M(1) of the FCA Act. Each case will turn on its own facts and circumstances. Having regard to the procedural history, which is outlined fulsomely above, I am satisfied that in the facts and circumstances of this appeal, it is appropriate to grant the relief sought by Westview and to dismiss the appeal under ss 25(2B)(ba) and 25(2B)(bb) of the FCA Act. My reasons are as follows. Mr Murabito first indicated through his counsel on 24 November 2023 that he intended to apply for leave to amend his notice of appeal and that that would be done within seven days. Timetabling orders which required Mr Murabito to serve his proposed amended notice of appeal were put in place, and repeatedly extended, and repeatedly breached. Although a proposed amended notice of appeal was circulated in March 2024, it was entirely unclear whether Mr Murabito intended to proceed on that version, which differed in material respects from the form of the proposed amended notice of appeal that had been foreshadowed in his counsel’s submissions in November 2023. When the amendment application was ultimately listed for hearing, Mr Murabito instructed his solicitor not to attend the hearing and declined to identify the proposed amended notice of appeal. Since his amendment application was dismissed, he has not engaged with the steps taken by the Court to assist him in bringing the appeal forward for determination. His solicitor filed a notice of ceasing to act. There is presently no solicitor on the record for Mr Murabito and he has not attended before the Registrar for the purpose of settling the appeal books. The procedural history which I have addressed in detail above demonstrates that: (1)The elapse of time since the notice of appeal was filed in November 2022 has been substantial and there has been little in the way of material progress towards a hearing date;(2)Mr Murabito has, on multiple occasions, failed to comply with Court orders;(3)His non-compliance with Court orders has been productive of: (a)delay in the efficient progress of the proceeding;(b)wasted Court time and the incurring of wasted costs arising from unnecessary or vacated case management hearings;(c)wasted costs arising from unnecessary or vacated conferences before a Registrar; and(d)the proceedings being temporarily stayed in the period when Mr Murabito was late in providing additional security, to which he had agreed.