Peek v CEO, Australian Government Solicitor (No. 4)
[2006] FCA 1157
•28 JULY 2006
FEDERAL COURT OF AUSTRALIA
Peek v CEO, Australian Government Solicitor (No. 4) [2006] FCA 1157
GREGORY JAMES PEEK v CHIEF EXECUTIVE OFFICER, AUSTRALIAN GOVERNMENT SOLICITOR AND MEGAN PITT
NSD 880 OF 2005EDMONDS J
30 AUGUST 2006
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 880 OF 2005
BETWEEN:
GREGORY JAMES PEEK
ApplicantAND:
CHIEF EXECUTIVE OFFICER, AUSTRALIAN GOVERNMENT SOLICITOR
First RespondentMEGAN PITT
Second RespondentJUDGE:
EDMONDS J
DATE OF ORDER:
28 JULY 2006
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The applicant’s motion, notice of which was filed on 13 December 2005, be dismissed.
2.The costs of that motion be reserved to 30 August 2006.
3.The respondents’ motion, notice of which was filed on 26 May 2006, be adjourned to 9:30 am on Wednesday, 30 August 2006 for hearing.
4.The application also be listed for final hearing at 9:30 am on Wednesday, 30 August 2006.
5.The applicant file and serve any further evidence upon which he intends to rely at the hearing of the respondents’ motion and, in addition, any further evidence upon which he intends to rely at the hearing of the application on or before Friday, 11 August 2006.
6.The respondents file and serve any evidence upon which they intend to rely in response to the evidence of the applicant referred to in order 5 hereof on or before Friday, 18 August 2006.
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
NSD 880 OF 2005
BETWEEN:
GREGORY JAMES PEEK
ApplicantAND:
CHIEF EXECUTIVE OFFICER, AUSTRALIAN GOVERNMENT SOLICITOR
First RespondentMEGAN PITT
Second Respondent
JUDGE:
EDMONDS J
DATE:
30 AUGUST 2006
PLACE:
SYDNEY
REASONS FOR JUDGMENT
On 28 July 2006 I dismissed a motion by the applicant seeking orders set out in a notice filed on 13 December 2005. I had previously dismissed the applicant’s motion for certain other orders and undertakings following a hearing on 15 December 2005, the reasons for which were subsequently published on 11 January 2006: Peek v CEO, Australian Government Solicitor (No. 3) [2005] FCA 1925.
The remaining orders sought in the applicant’s motion dismissed on 28 July 2006 related to, inter alia, leave to amend his application by way of re-pleading parts of the application and by way of including ‘fresh matters arising’. The notice of motion stated ‘that the applicant [sought] leave to amend the application in these proceedings, to the form attached to this Notice of Motion’, but no form was attached to the notice and no form of amended application, providing a basis for his motion seeking leave to amend, has ever been filed or otherwise provided to the Court despite the applicant being given many opportunities over the period from December 2005 to July 2006 to do so.
I did not intend to write reasons for the order I made on 28 July 2006 dismissing the applicant’s motion however, I understand the applicant has filed and intends to prosecute an application for leave to appeal the order I made on that occasion and what follows is more for the benefit of the judge of this Court who might hear the applicant’s application for leave to appeal than for the benefit of the parties, who are well aware of both the underlying events and the resulting reasons giving rise to my dismissal of the applicant’s motion.
At the hearing on 15 December 2005, the applicant indicated that he did not, on that day, wish to press the amendment of his application. At the time, I was unconcerned that the notice of motion did not attach a proposed form of amended application because, having regard to an anterior order made on 6 December 2005 namely, that the applicant file and serve any further amended application upon which he sought to rely within 14 days of 13 December 2005, I anticipated that such an amended application would be forthcoming within an early timeframe.
As no such amended application had been filed and served when the matter came before me on 7 February 2006, and despite the absence of an appearance by the applicant on that occasion, I extended the time for filing and serving any such amended application until 7 March 2006.
As no such amended application had been filed and served when the matter came before me on 14 March 2006, at the applicant’s request, I extended the time for filing and serving any such amended application until 4 April 2006.
As no such amended application had been filed and served when the matter came before me on 18 April 2006, and in the absence of an appearance by the applicant, I adjourned the matter for further directions on 9 May 2006.
When the matter came before me on 9 May 2006, there was again no appearance by the applicant. On the application of counsel for the respondents, I made the following orders:
‘1.Subject to order 2 hereof, the respondents have leave to file a notice of motion to, inter alia, dismiss the application, returnable for hearing at 2.15 pm on Wednesday, 7 June 2006.
2.The respondents are to file and serve notice of any such motion on or before Friday, 26 May 2006.’
On the return date of the respondents’ motion, viz., 7 June 2006, and in that context, I acceded to a submission by the applicant to stand the respondents’ motion over to 22 June 2006 to enable the applicant to file an affidavit explaining his delay in filing and serving any amended application upon which he proposed to rely and to explain his failure to appear at directions hearings on 7 February, 18 April and 9 May 2006.
When the matter came before me on 22 June 2006 I gave the applicant leave to file in Court an affidavit affirmed by him on 21 June 2006 which, in his own words: ‘… goes to the reasons for my failure to attend on the previous occasions and the other issues that appeared to me at the time at least to have been raised in the affidavit of the respondents’ solicitor’.
At the conclusion of that hearing I made the following orders:
‘THE COURT NOTES THAT:
A.On 13 December 2005 the applicant filed notice of a motion and a supporting affidavit.
B.On 15 December 2005 certain changes to the form of the relief sought in that motion were agreed upon at a hearing of part of the motion.
C.There remains to be determined, as part of that motion, the question of a grant of leave to the applicant to rely upon an amended application.
THE COURT ORDERS THAT:
1.The applicant file and serve notice of an amended motion incorporating those changes referred to in recital B hereof and deleting any matters which have been disposed of by Friday, 7 July 2006.
2.The applicant file and serve the amended application in respect of which he seeks leave by Friday 7 July 2006.
3.The applicant’s amended motion be listed for hearing at 9:30 am on Friday, 28 July 2006.
4.If the applicant wishes to rely upon any written submissions for the purposes of the hearing of his amended motion he file and serve those submissions by Monday, 24 July 2006.
5.If the respondents wish to rely upon any written submissions for the purposes of the hearing of the applicant’s amended motion they file and serve those submissions by Thursday, 27 July 2006.
6.The hearing of the respondents’ motion, notice of which was filed on 26 May 2006, be adjourned to 9:30 am on Friday 28 July 2006.
7.The proceedings in Gregory James Peek v CEO, Australian Government Solicitor NSD 1567 of 2005 be stood over to Friday, 28 July 2006 for mention.’
The applicant failed to comply with orders in 1 and 2 above and, indeed, when the matter came before me on 28 July 2006 for hearing of the applicant’s unfiled and unserved amended motion, the applicant was still in a state of non-compliance with orders 1 and 2. The applicant conceded as much and, in consequence, I dismissed the applicant’s motion for leave to amend his application in these proceedings.
The matters I took into account in dismissing the applicant’s motion for leave to amend his application were:
(i)His repeated failure to comply with orders offering him the opportunity to file or otherwise provide to the Court, a form of amended application.
(ii)That those failures and his non-appearance at three directions hearings referred to in [9] supra, exemplified a lack of co-operation, on the part of the applicant, in ensuring that the processes of the Court were complied with on a timely basis.
(iii)That dismissal of the applicant’s motion to amend his application did not deny the applicant the right to prosecute his application as amended by the orders I made on 24 August 2005: Peek v CEO, Australian Government Solicitor (No. 2) [2005] FCA 1343.
I certify that the preceding thirteen (13) numbered Paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds. Associate:
Dated: 30 August 2006
Solicitor for the Applicant: The applicant appeared in person Counsel for the Respondents: Ms K Eastman Solicitor for the Respondents: Carroll & O’Dea
Date of Hearing: 28 July 2006 Date of Judgment: 30 August 2006
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