FEDERAL COURT OF AUSTRALIA
Simjanovska v Segal [2018] FCA 12
File number(s): NSD 1218 of 2017 Judge(s): PERRY J Date of judgment: 15 January 2018 Catchwords: PRACTICE AND PROCEDURE – Rules 5.22 and 5.23 Federal Court Rules 2011 (Cth) - where applicant failed to prosecute application for extension of time with due diligence and failed repeatedly to meet timetabling orders – Application dismissed Legislation: Federal Court of Australia Act (1976) ss 37M, 37N, 37P
Judiciary Act 1903 (Cth) s 39B
Federal Court Rules 2011 (Cth) r 1.40, 5.22, 5.23, 31.02 35.13, 35.32
Cases cited: Dauguet v Centrelink [2015] FCA 395
Lawson v NSW Minister for Land and Water Conservation [2007] FCA 8
Date of first case management hearing: 23 August 2017 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 28 Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondent: The Respondent filed a submitting notice ORDERS
NSD 1218 of 2017 BETWEEN: ELKA SIMJANOVSKA
Applicant
AND: GEOFF SEGAL, DEPUTY DISTRICT REGISTRAR
Respondent
JUDGE:
PERRY J
DATE OF ORDER:
15 JANUARY 2018
THE COURT ORDERS, PURSUANT TO RULES 1.40, 5.22(A) AND (D) AND 5.23 OF THE FEDERAL COURT RULES 2011, THAT:
1.The application is dismissed with no order as to costs for want of prosecution and failure to comply with a direction of the Court.
THE COURT NOTES THAT:
2.Written reasons will be published explaining the basis on which the orders above are made on or before Monday 22 January 2018.
3.The reasons referred to at [2] above will be sent by email and hard copy to the parties.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
PERRY J:
1. INTRODUCTION
By an application filed on 20 July 2017 the applicant seeks an extension of time under rule 31.02 of the Federal Court Rules 2011(FCR) within which to file an application for leave to appeal against a decision made on 18 April 2017 by the respondent, a Deputy District Registrar of this Court (the Registrar). The Registrar had decided not to accept for filing an application for leave to appeal a “decision” by the duty judge that the applicant’s application for an interlocutory injunction did not require an urgent listing. By the letter dated 18 April 2017 advising the applicant of his decision, the Registrar wrote that:
I note the terms of Rule 2.26 of the Federal Court Rules 2011 which states:
A Registrar may refuse to accept the document (including a document that would, if accepted, become an originating application) if the Registrar is satisfied that the document is an abuse of the process of the Court or is frivolous or vexatious:
(a) on the face of the document; or
(b) by reference to any documents already filed or submitted for filing with the document.
In accordance with that…
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- Simjanovska v Segal [2018] FCA 12
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- [2018] FCA 12
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CaseChat Overview and Summary
The legal issues before the court were whether the applicant's failure to comply with court orders and prosecute her claim with due diligence justified the dismissal of her application under Federal Court Rules 1.40 and 5.22(a) and (d). The court noted that the power to dismiss a proceeding because of an applicant's default should be exercised cautiously, balancing the desirability of the expeditious conduct of litigation and the desirability of litigants having a proper opportunity to present their cases. The court also highlighted the obligations imposed upon the parties under the Federal Court Act to conduct the proceeding consistently with the objectives of using the judicial and administrative resources of the court efficiently, disposing of the court's caseload efficiently, and disposing of all proceedings in a timely manner.
The court found that the applicant had repeatedly failed to comply with court orders and had failed to prosecute her claim with due diligence. The applicant's filing of an affidavit in support of her application did not excuse her failure to comply with court orders and demonstrate reasonable diligence in prosecuting the proceedings. The court dismissed the applicant's application for want of prosecution and failure to comply with court orders, pursuant to Federal Court Rules 1.40 and 5.22(a) and (d). The court did not find that the respondent had been prejudiced by the applicant's actions but noted that the applicant's attention had been drawn to the provisions in the guidelines containing information about the docket sent on 22 August 2017 to the applicant.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
On 15 January 2018 after 5pm I made orders dismissing this matter for want of prosecution and failure to comply with court orders pursuant to FCR rules 1.40 and 5.22(a) and (d).3. Consideration Relevantly, Rule 5.23(1)(b) provides that if an applicant is “in default”, a respondent may apply to the Court for an order that the proceeding be dismissed. By virtue of rule 5.22 of the rules, a party is “in default” for the purposes of rule 5.23 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. As noted earlier, the respondent was not an active contradictor. Nevertheless, pursuant to rule 1.40 this Court may, at any stage of the proceeding, exercise a power mentioned in the Rules of its own initiative: see also s 37P, Federal Court of Australia Act 1976 (Cth) conferring power on the Court to dismiss a proceeding in the event of a failure to comply with a direction setting time limits. The power to make an order summarily dismissing a proceeding because of an applicant’s default should be exercised cautiously: Lawson v NSW Minister for Land and Water Conservation [2007] FCA 8 at [22]; Dauguet v Centrelink [2015] FCA 395 at [135]. The Court must balance the desirability of the expeditious conduct of litigation, particularly in a Court committed to a case management system, and the desirability of litigants, having a proper opportunity to present their cases: Wu v Avin Operations Pty Ltd [2006] FCA 36 at [51]. The timetable for the filing of documents to progress the applicant’s application for an extension of time has been extended on four occasions at her request. Further, on each occasion that an extension was granted, the extension was for the period requested or a greater period. However, the applicant has failed to comply with the orders made on 23 August 2017 including as varied by later orders extending the time for compliance and despite being on notice since 1 December 2017 that her application may be dismissed for failure to comply with court orders and for want of prosecution. None of the documents required to be filed by those orders has in fact been filed. In the circumstances, the applicant has repeatedly failed to comply with court orders and has failed to prosecute her claim with due diligence, despite the very subject matter of any appeal being the alleged failure by the duty Judge to accept her application for an interim injunction as urgent. The fact that the applicant filed an affidavit in support of her application on 17 July 2017 does not excuse her failure to comply with court orders and demonstrate reasonable diligence in prosecuting the proceedings. In this regard, while there is nothing to suggest that the respondent has been prejudiced, an obligation is imposed upon the parties under ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act) to conduct the proceeding consistently with the objectives of, among other things, using the judicial and administrative resources of the Court efficiently, disposing of the court’s caseload efficiently, and disposing of all proceedings in a timely manner. I note that the applicant’s attention was drawn to these provisions in the guidelines containing information about my docket sent on 22 August 2017 to the applicant.