Muthu v Australian Broadcasting Corporation

[2021] FCCA 1145

FEDERAL CIRCUIT COURT OF AUSTRALIA

Muthu v Australian Broadcasting Corporation [2021] FCCA 1145

File number(s):

SYG 283 of 2021

Judgment of:

JUDGE STREET

Date of judgment:

22 April 2021

Catchwords:

CONSUMER PROTECTION – whether there is an arguable case of action within the Court’s jurisdiction – where there was a failure to comply with courts orders - whether proceedings should be dismissed– no arguable cause of action identified – application dismissed for non-compliance with the Court’s orders.  

Legislation:

 Federal Circuit Court Rules 2001 (Cth) r 13.03B

Spencer v The Commonwealth (2010) 241 CLR 118

Number of paragraphs:

10

Date of hearing:

22 April 2021

Place:

Sydney

Solicitors for applicant:

In person

Solicitors for first respondent:

Ms R White

ORDERS

SYG 283 of 2021

BETWEEN:

CHRISTOPHER SILUVAI MUTHU

Applicant

AND:

AUSTRALIAN BROADCASTING CORPORATION

First Respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	22 APRIL 2021

THE COURT ORDERS THAT:

1.The request to file the application in a case and affidavit dated 16 March 2021 is refused.

2.The proceedings are dismissed under r 13.03B of the Federal Circuit Court Rules 2001 (Cth).

3.The applicant pay the respondents’ costs as taxed or agreed.

REASONS FOR JUDGMENT

JUDGE STREET:

1. These proceedings were commenced on 25 February 2021, without identifying any basis upon which the Court’s jurisdiction was invoked.  The proceedings made allegations in the application, supported by an affidavit, that did not identify any cause of action within the Court’s jurisdiction.

2. On 18 March 2021, this Court made orders giving the applicant an opportunity to file a proper statement of claim, identifying the nature of the cause of action he was seeking to bring against the parties.  The applicant has not done so.  The applicant has purported to try and file an application in a case, supported by an affidavit, in respect to which, leave to file the same has not been granted. 

3. The application in a case, was seeking final orders, of a kind, entirely inappropriate for an application in a case.  Leave to file the same was not granted by the Court as it was clearly an abuse of process. 

4. The proceedings were listed for hearing this morning.  The applicant did not join the hearing on the invitation, and the Court telephoned the applicant in order to join the hearing.  The applicant then engaged in an aggressive, rude and continuous interruption of the Court, as the Court was trying to ascertain why the applicant had failed to comply with the Court’s orders.  It is apparent that the applicant is seeking to agitate some alleged cause of action, in respect of events some 17 years ago.  It is not apparent on what basis it could possibly be said that there is still any cause of action. 

5. The applicant was told by the Court, if the applicant continued to behave in this way, the Court would not hear further from the applicant.  The applicant continued to interrupt the Court, and to prevent the Court hearing the matter in an orderly fashion. The Court endeavoured to give the applicant an opportunity to be heard, which in effect, the applicant by his inappropriate conduct prevented. The Court foreshadowed it would proceed to determine the consequences of the non-compliance and the applicant continued to interrupt the Court. But for the applicant’s conduct, the applicant had a meaningful opportunity to be heard on the consequences of the non-compliance with the Court’s orders. It is apparent on the face of the application that there is no arguable case for any relief within the Court’s jurisdiction and the applicant has not complied with the Court’s order to file a proper statement of claim. No satisfactory explanation for this failure was revealed by the applicant.

6. Accordingly, the Court identified that it would consider whether or not the proceedings are ones that should be dismissed for noncompliance with the Court’s order. The first respondent asked the Court to make an order dismissing the proceedings for noncompliance with the Court’s order, under r 13.03B of the Federal Circuit Court Rules 2001 (Cth).

7. The Court is satisfied the applicant is in default of the Court’s order.  The behaviour and conduct of the applicant was, entirely inappropriate and appeared intended by the applicant to prevent the Court determining the consequences of the non-compliance.

8. The Court has given consideration as to whether it should exercise its powers to dismiss the proceedings in circumstances where the applicant has not given any satisfactory explanation for the failure to comply with the Court’s orders.  The applicant’s conduct in defiance of the Court, and refusing to participate in the hearing in an orderly manner, is further conduct that supports a finding that there is no satisfactory explanation for the failure to comply with the Court’s orders. The Court has also taken this conduct into account in determining whether, in the interests of the administration of justice, the applicant should be given one further opportunity to file an amended statement of claim. 

9. Given the conduct by the applicant, and the apparent, complete absence of any arguable cause of action in respect of events 17 years ago, the Court is not satisfied that this is an appropriate matter in the interests of the administration of justice in which to give the applicant a further opportunity to file an amended process.  The Court is satisfied that there would be no utility in doing so as the application has failed to disclose any arguable case and the applicant has failed to take any steps to comply with the Court’s order. The Court has taken into account the principles in Spencer v The Commonwealth (2010) 241 CLR 118 as to the need for caution, great care and clarity required in the exercise of summary powers. The Court is satisfied that there is no arguable case and that the consequence of non-compliance with the Court’s orders in this case warrants dismissal under r 13.03B of the Federal Circuit Court Rules 2001 (Cth).

10. Accordingly, the proceedings are dismissed under r 13.03B of the Federal Circuit Court Rules 2001 (Cth).

I certify that the preceding ten (10) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 22 April 2021 and the parties were sent a sealed copy of the Court’s orders.

Associate:

Dated:       26 May 2021