Sambastian v Australian Postal Corporation
[2017] FCA 1232
•13 October 2017
FEDERAL COURT OF AUSTRALIA
Sambastian v Australian Postal Corporation [2017] FCA 1232
File number: SAD 191 of 2017 Judge: WHITE J Date of judgment: 13 October 2017 Catchwords: PRACTICE AND PROCEDURE – application for extension of time in which to appeal against Administrative Appeals Tribunal decision – Applicant seeks adjournment – Respondent opposes adjournment and seeks dismissal of application under Federal Court Rules 2011 rr 5.22 and 5.23 – adjournment refused – Applicant in default – application for extension of time dismissed. Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 44(2A)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Federal Court Rules 2011 (Cth) rr 5.22, 5.23, 33.12, 33.13
Date of hearing: 13 October 2017 Registry: South Australia Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 25 Counsel for the Applicant: The Applicant did not appear Counsel for the Respondent: Mr N Swan Solicitor for the Respondent: Sparke Helmore Lawyers ORDERS
SAD 191 of 2017 BETWEEN: ARMAND SAMBASTIAN
Applicant
AND: AUSTRALIAN POSTAL CORPORATION
Respondent
JUDGE:
WHITE J
DATE OF ORDER:
13 OCTOBER 2017
THE COURT ORDERS THAT:
1.The Applicant’s request for an adjournment is refused.
2.The application for an extension of time filed on 19 July 2017 is dismissed.
3.The Applicant is to pay the Respondent’s costs of and incidental to the application filed on 19 July 2017.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
EX TEMPORE REASONS FOR JUDGMENT
WHITE J:
On 19 July 2017, the Applicant filed an application for an extension of time in which to appeal against a decision of the Administrative Appeals Tribunal (the Tribunal) delivered on 7 April 2017. By that decision, the Tribunal had determined five applications for a review commenced by the Applicant concerning his claim to entitlements under the Safety, Rehabilitation and Compensation Act 1988 (Cth).
Section 44(2A) of the Administrative Appeals Tribunal Act 1975 (Cth) requires that an appeal to this Court be commenced within 28 days of the receipt by the applicant of the document setting out the terms of the Tribunal’s decision. It is not clear when the Applicant did receive the Tribunal’s decision, but he accepts that he did not commence his application within the 28 day period.
The Court has the power to extend the time for the commencement of an appeal from a decision of the Tribunal. Rule 33.13 of the Federal Court Rules 2011 (Cth) (FCR) contains procedural rules with respect to the making of an application for an extension of time. Amongst other things, it requires that an application for an extension of time be accompanied: (a) by an affidavit stating briefly, but specifically, the facts on which the application relies and why the appeal was not filed within time; and (b) by a draft notice of appeal in a form which complies with r 33.12. The applicant did not file either of those documents. He filed only the application for the extension of time.
Today is the second directions hearing which the Court has held in relation to the Applicant’s application. The first directions hearing occurred on 8 September 2017. The Applicant, who is unrepresented, has not appeared at the directions hearings. The Respondent has appeared by counsel at each of the hearings.
At the hearing on 8 September 2017, the Court ordered that the Applicant file and serve the affidavit and draft notice of appeal required by r 33.13 and that he do so by 29 September 2017. The Applicant has not complied with that order at all, let alone within the time fixed by the Court.
By an interlocutory application filed on 9 October 2017, the Respondent applies for an order pursuant to r 5.23 of the FCR that the proceeding be dismissed by reason of the Applicant’s non‑compliance with the Court’s order of 8 September 2017, by reason of the Applicant’s failure to prosecute his application with reasonable diligence, or by reason of his non‑attendance at the two directions hearings.
It is apparent that the reason for the Applicant’s non-attendance personally is that he is presently somewhere in the United States (he has not provided his address). There is evidence that he may have been in the United States since 2014. The Applicant says that he has applied for citizenship in the United States, to which he refers as a “green card”, and that he does not wish to return to Australia for the hearing of this matter until that application has been determined. He considers that an absence from the United States may jeopardise his prospects of obtaining citizenship there.
Application for adjournment
In a number of emails, the Applicant has sought an adjournment of today’s hearing. The most recent request for an adjournment was made by an email addressed to my Associate and to the Respondent’s solicitor which arrived only after the commencement of today’s hearing. The reasons for that email request being made so belatedly have not been made apparent, especially given that the Applicant was informed on 5 October 2017 that, in view of the Respondent’s opposition, the Court would not adjourn today’s hearing administratively. It is apparent that the Applicant seeks an adjournment of indefinite duration, that is, until such time as his application for citizenship in the United States has been determined. He says that he has been told that this may take 6‑8 weeks but does not indicate the source of that information.
The Applicant has provided some evidence, albeit limited, that he has made an application for citizenship in the United States and that he has satisfied one of the conditions for such citizenship, being satisfaction of the tests relating to US history and government and English. The Applicant has not provided evidence as to the likely subsequent progress of his application. As at 29 September, he informed the Court that he was unable to get information on his United States immigration status but held out the prospect that he might be given an appointment for an oath ceremony at any time. It is reasonable for the Court to infer that some further administrative steps will have to occur in the United States before any oath ceremony can take place. At the very least, it seems probable that the Applicant will have to be informed that he has satisfied all other requirements for US citizenship. Apart from the period of 6‑8 weeks referred to earlier, no information has been given to the Court as to when or whether that is likely to occur.
As indicated, the Respondent opposes the grant of the adjournment.
I am satisfied that it would be inappropriate to grant the adjournment, and I refuse it. I do so for a number of reasons. First, it is incumbent on those persons seeking an extension of time in which to commence proceedings to prosecute their application with expedition. The Applicant is not doing so.
Secondly, the period of the adjournment sought is uncertain. This is not a case of a litigant seeking a short adjournment only. Even the material which the Applicant provided to the Court partway through this morning’s hearing makes it plain that the Applicant still does not know the period for which he seeks the adjournment.
Thirdly, the Applicant has been informed more than once that, if he is unable to attend the hearing personally, he should obtain legal representation. He has not done so. More than six months have now elapsed since the Tribunal decision, and just on three months since the Applicant commenced the application for the extension of time. The Applicant has had more than a reasonable opportunity in which to obtain legal representation. No reasonable explanation for his failure to do so has been provided. Some of the Applicant’s emails may convey an expectation by the Applicant that it is for the Court to arrange legal representation for him. There is no reasonable basis upon which the Applicant could have such an expectation, and it has been made plain to him more than once that that is not the case.
The Applicant has referred to attempts himself to arrange a lawyer to attend on the application for the extension of time, giving a list of lawyers who he says he has approached. It is not easy to understand why the Applicant has not been able, if a genuine attempt has been made, to retain a lawyer in connection with these proceedings, subject, of course, to the Applicant being willing to enter into appropriate and reasonable retainer arrangements. There is no evidence that the Applicant is willing to enter into retainer arrangements of this kind, and yet has been unable to obtain legal representation.
The fourth matter is that the Applicant has done nothing since commencing the proceeding on 19 July 2017 by way of furthering his prosecution. In particular, he has not complied with the Court’s order of 8 September 2017 and has made no attempt to do so.
Finally, I have taken into account the prejudice to the Respondent. It is entitled to know in reasonable time the fate of the application for the extension of time, and, in the event that an extension is granted, the fate of the appeal. The prospect that it may have to wait indefinitely for those matters is a relevant form of prejudice.
For these reasons, I refuse the application for the adjournment.
Application to dismiss the proceeding
Next, I turn to the Respondent’s application seeking the dismissal of the Applicant’s application. Rule 5.23 of the FCR empowers the Court to dismiss a proceeding if a party is in default. Rule 5.22 identifies the circumstances in which a party will be in default for the purposes of r 5.23. It provides:
A party is in default if the party fails to: –
(a)do an act required to be done, or to do an act in the time required, by these Rules; or
(b)comply with an order of the Court; or
(c)attend a hearing in the proceeding; or
(d)prosecute or defend the proceeding with due diligence.
Plainly the Applicant is a party in default within the meaning of this rule. He has not complied with the Court’s order of 8 September 2017; he has not attended the hearings on 8 September 2017 or today; and he has not taken any step to prosecute his application, let alone to do so with reasonable diligence.
I mention again the Applicant’s claims in his emails that he has had difficulty in retaining a lawyer to appear for him. He also asserts that he is not able to draft a notice of appeal “through fear of getting it wrong and not knowing what [he’s] doing”. I am not willing to accept that the Applicant could not have retained a lawyer, whether to assist him in the preparation of a notice of appeal or to appear on his behalf before this Court had he been willing to enter into a proper retainer on reasonable terms. At the least, the Applicant has not shown a proper basis upon which the Court could conclude that, through no fault of his own, he has been unable to obtain legal representation.
The Applicant has been on notice since 8 September 2017 of the prospect that an application for dismissal of his application may be made today. The Respondent informed the Applicant on 11 September 2017 that it would make such an application if he did not comply with the Court’s orders of 8 September 2017.
By an email of 4 October 2017, the Respondent’s solicitors confirmed that, in view of the Applicant’s non-compliance with the Court’s order of 8 September 2017, it would seek the dismissal of his application. The solicitors also put the Applicant on notice that, if he did not appear at today’s hearing, that too would be relied upon in support of an application for dismissal of the proceedings. The Respondent’s interlocutory application seeking dismissal was served on the applicant on 9 October 2017. Despite this notice, it is apparent that the Applicant has done nothing to prosecute his application.
In short, the situation before the Court is this: although seeking a favourable exercise of the discretion concerning an extension of time, the Applicant has not complied with r 33.13 by filing and serving an affidavit and a draft notice of appeal to support his application; he has not complied with the Court’s order of 8 September 2017; he has not attended either directions hearing in the Court; and he has not, since 19 July 2017, done anything to prosecute the application for the extension of time.
As I have indicated, this conduct of the Applicant has to be assessed in the context that he has been on notice that an application for dismissal would be made. In these circumstances, the seriousness of the situation facing him must have been apparent to him. Having regard to all the circumstances, I consider that this is an appropriate case in which to exercise the Court’s power under r 5.23.
Accordingly, the application for an extension of time filed on 19 July 2017 is dismissed. Further, there will be an order that the Applicant is to pay the Respondent’s costs of and incidental to the application filed on 19 July 2017.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White. Associate:
Dated: 18 October 2017
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