O'Meara v Lott

[2004] FCA 548

FEDERAL COURT OF AUSTRALIA

O’Meara v Lott [2004] FCA 548

KENNETH IAN O’MEARA v PATRICK LOTT AND OTHERS
N 174 of 2003

WHITLAM J
4 MAY 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N174 OF 2003

BETWEEN:

KENNETH IAN O'MEARA
APPLICANT

AND:

PATRICK LOTT
FIRST RESPONDENT

JULIE COLE
SECOND RESPONDENT

P MORGAN
THIRD RESPONDENT

RICHARD GRIGG
FOURTH RESPONDENT

JUDGE:

WHITLAM J

DATE OF ORDER:

7 APRIL 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1. The proceeding is dismissed with costs.
2. This order is not to be entered for 30 days.
3. Leave is granted to the applicant to apply in writing within 10 days to vacate this order with a copy of any such application to be sent to the Australian Government Solicitor.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N174 OF 2003

BETWEEN:

KENNETH IAN O'MEARA
APPLICANT

AND:

PATRICK LOTT
FIRST RESPONDENT

JULIE COLE
SECOND RESPONDENT

P MORGAN
THIRD RESPONDENT

RICHARD GRIGG
FOURTH RESPONDENT

JUDGE:

WHITLAM J

DATE OF ORDER:

4 MAY 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1. Notice of any motion for leave to appeal from the orders made on 7 April 2004 may be filed and served within seven days from today.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N174 OF 2003

BETWEEN:

KENNETH IAN O'MEARA
APPLICANT

AND:

PATRICK LOTT
FIRST RESPONDENT

JULIE COLE
SECOND RESPONDENT

P MORGAN
THIRD RESPONDENT

RICHARD GRIGG
FOURTH RESPONDENT

JUDGE:	WHITLAM J
DATE:	4 MAY 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. These are my reasons for making orders on 7 April 2004 dismissing this proceeding with costs and for not disturbing those orders.

2. This proceeding was commenced on 3 March 2003 by the applicant in person.  His claim related to the execution on 26 February 2003 by the first and second respondents of search warrants issued under the Crimes Act 1914 (Cth). The warrants were issued by the third and fourth respondents who have entered submitting appearances. Two computers were seized in the search.

3. Directions hearings were held on 26 March and 2 May 2003.  The evidence of witnesses in chief was to be given by affidavit, and those affidavits were filed by 3 July 2003.

4. The applicant did not appear at the directions hearing on 4 July 2003 so I fixed a further directions hearing for 8 August 2003.  Later on the afternoon of 4 July 2003, the District Registrar received a fax from the applicant, in which (1) he said that he would be unable to attend court on 8 August 2003, (2) he requested that ‘the matter be stood over generally to be brought on again with seven days notice’, and (3) he purported to notify a post office box as his ‘new address for correspondence’.

5. On 1 August 2003 the applicant was sentenced to a term of imprisonment, and he remains in lawful custody.

6. On 8 August 2003 I stood the matter out of the list.  My Associate wrote to the applicant indicating that the Court may re-list the matter on its own initiative.

7. On 16 March 2004 the parties were informed that the matter was re-listed for 7 April.  The applicant did not seek an order for his production from prison.  Instead, he wrote to my Associate on 29 March.  In that letter the applicant said that the ‘computers, subject of the application,’ had been returned and he suggested the following course of action:

   ‘1)      The claim for return of the computers be made by consent.

   2)The court order that the timing and circumstances of the computers [sic] seizure be referred to the Attorney General (NSW) for determination:

   (a)       If that timing and circumstance constituted the offence of:

   (i)        Steal court documents, and/or

   (ii)Pervert the course of justice

   3)Expenses of the application to date be ordered payable to the applicant.  Amount to be determined by the Registrar.

   4)The prosecution of the balance of the application be available to the applicant when he is in a position to proceed.’

8. At the hearing on 7 April I made a copy of the applicant’s letter available to the solicitor for the first and second respondents.  I indicated to Ms Pownall that in the circumstances it seemed to me that the most sensible course would be for the Court of its own motion to dismiss the proceeding with costs but, in view of the absence of the applicant, to give him an opportunity to have such an order set aside before it was entered.  Accordingly I made orders to that effect.

9. The applicant wrote to my Associate by letter dated 12 April, seeking to have the costs order vacated on the basis that he was deceived by a letter dated 2 April from the  solicitor for the first and second respondents .  Ms Pownall subsequently sent my Associate a copy of that letter.  I have looked at it and it provides no foundation for the allegation made by the applicant.  In the circumstances I do not propose to discharge the orders made on 7 April, and they may be entered in due course.

10. The applicant did not pursue his application.  The relief he sought would be futile.  The relief that he foreshadowed seeking was ridiculous.  The proposal that the prosecution of ‘the balance of the application’ (whatever that might be) should lie in limbo until he was ‘in a position to proceed’ was hopelessly vague.  No good reason was shown why the matter should remain on foot.  The respondents are entitled to be rid of the threat of this proceeding being revived at some indeterminate time in the future.  The time of the Court, its officers and staff is also not to be wasted in monitoring comatose proceedings.

11. Since I made my orders in the absence of the applicant, it is open to him to apply to have them set aside.  However, I shall also allow notice of any motion for leave to appeal from the orders made on 7 April 2004 to be filed within 7 days from today.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.

Associate:

Dated:             4 May 2004

No appearance for the applicant
Solicitor for the first and second respondents	Ms Judy Pownall of the Australian Government Solicitor
Date of hearing:	7 April 2004
Date of reasons and further order:	4 May 2004