Simjanovska v Segal

In Simjanovska v Segal, the Federal Court was asked to decide whether the applicant's failure to prosecute her application for an extension of time with due diligence, and her repeated failure to meet timetabling orders, warranted the dismissal of her application. The applicant, Simjanovska, sought an extension of time to file documents in support of her application for an interim injunction. The court had extended the timetable for filing these documents on four occasions at her request, with extensions granted for the periods requested or greater periods. However, the applicant had 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 required documents had been filed.

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.