Simjanovska v Sentumar Pty Ltd trading as Storage King Rockdale (No 2)
[2017] FCA 1388
•27 November 2017
FEDERAL COURT OF AUSTRALIA
Simjanovska v Sentumar Pty Ltd trading as Storage King Rockdale (No 2) [2017] FCA 1388
File number: NSD 496 of 2017 Judge: FARRELL J Date of judgment: 27 November 2017 Catchwords: PRACTICE AND PROCEDURE – application to dismiss proceedings pursuant to Federal Court Rules 2011 (Cth) r 5.23 and strike out originating application under r 16.21 – where applicant failed to attend case management hearing – where applicant corresponds with Court shortly prior to case management hearing requesting adjournment and recusal for bias – where originating application has no merit – where applicant failed to amend originating application pursuant to prior grants of leave – application for dismissal granted Legislation: Federal Court Rules 2011 (Cth) rr 5.22, 5.23, 16.21 Cases cited: Simjanovska v Sentumar Pty Ltd trading as Storage King Rockdale [2017] FCA 736 Date of hearing: 24 November 2017 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 34 Counsel for the Applicant: The Applicant did not appear Solicitor for the Respondents Mr J Michos of JSM Lawyers and Notaries ORDERS
NSD 496 of 2017 BETWEEN: ELKA SIMJANOVSKA
ApplicantAND: SENTUMAR PTY LTD TRADING AS STORAGE KING ROCKDALE
First RespondentTHOMAS MARSHALL
Second Respondent
JUDGE:
FARRELL J
DATE OF ORDER:
24 NOVEMBER 2017
THE COURT ORDERS THAT:
1.The proceedings be dismissed under r 5.23(1)(b) of the Federal Court Rules 2011 (Cth).
2.There be no order as to costs.
THE COURT NOTES THAT:
3.Although costs would otherwise normally follow from the making of Order 1, the solicitor for the respondents indicated to the Court that he would not render an account for such costs.
4.Order 2 is without prejudice to order 3 made on 17 May 2017 in relation to the interlocutory application lodged on 12 May 2017.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
FARRELL J:
These are my reasons for making orders on 24 November 2017 dismissing these proceedings under r 5.23(1)(b) of the Federal Court Rules 2011 (Cth) following Ms Simjanovska’s failure to attend a case management hearing set down for 10 am that day.
When the matter was called shortly after 10 am, Mr Michos, solicitor for the respondents, appeared and Ms Simjanovska’s absence was noted. The matter was stood over until 10.15 am to allow Ms Simjanovska time to appear.
During the brief recess, my Associate alerted me to an email from Ms Simjanovska to the Court’s Registry which he became aware of shortly after the matter was called. Ms Simjanovska’s email had been sent to the Court and copied to Mr Michos at 9.47 am. It was headed: “RE: URGENT MATTER – NSD416 of 2017 – Elka Simjanovska v Department of Human Services & Ors”. NSD 416 of 2017 is a separate matter commenced by Ms Simjanovska on 22 March 2017 the respondents to which are the Department of Human Services, the Secretary of the Department of Human Services and the Australian Information Commissioner.
A copy of Ms Simjanovska’s email was provided to Mr Michos. When the Court resumed, Ms Simjanovska’s email was marked as exhibit A in these proceedings.
Exhibit A
In her email, Ms Simjanovska complains that she had not received adequate notice of the case management hearing. Her concern was that she had been sent by express post only a copy of an email from the Court’s Registry which had been sent to Mr Michos. I understand Ms Simjanovska to be referring to an email dated 17 November 2017 (see reference to exhibit B below). She stated that (as written):
I received a letter at the beginning of this week in which there was only a copy of an email correspondence from nswdr @fedcourt.gov.au to the email address of Mr Michos, the legal representative of the Respondent. The copy of the email correspondence is not attached to any letter addressed to me, and there was no other correspondence or note for me. It doesn't say who sent the correspondence, and on the envelope is not stated that it's from the Federal Court of Australia. I was very busy when I received the letter, and I have been in some extreme circumstances this week, so considering that there wasn’t a correspondence addressed to me I only considered the copy of the email correspondence to Mr Michos yesterday. In the email correspondence sent to Mr Michos the Respondents have been informed about a Case Management hearing listed today, at 10 am.
I consider that the Court failed to send a correspondence to me to inform me that there is a Case Management hearing for today. I claim that this is a serious irregularity. I consider that sending of copies of emails addressed to the Respondents in order to inform me about the steps in the proceedings has occurred in another proceeding that I have before the Court, and I claim that it's improper in law. I am the Applicant in this proceeding and I should be informed about any listing of the proceeding in a correspondence that is addressed to me. In the letter that I received there is no even information that it has been sent by the Court. It could have been sent by anyone. I am expected to leave all my other arrangements and duties on the basis of information sent to the Respondents, but legally this is not possible.
I would like to inform the Court that in the future I will not consider, or respond to any correspondence that is not addressed to me and it’s not attached to a letter from the Registry of the Court that is addressed to me and properly signed by a proper person from the Court.
She went on to state a concern which she has previously expressed in this matter and NSD 416 of 2017. She said (as written):
I am also concerned that this is occurring because an illegitimate double, ‘shadow’, proceedings that I believe have been running in parallel with this and the other proceedings I have before the Court. I am having more and more evidence each day that can support this claim. I also believe that this is the reason for myself not being informed about a listed hearing before the Court. This matter is currently under legal consideration and I will be taking action about it shortly.
Ms Simjanovska noted that she had experienced difficulty in recent weeks as she had to file evidence in other proceedings she has commenced. Ms Simjanovska has brought two other proceedings in this Court. They are (1) NSD 416 of 2017, in which summary judgment applications are listed to be heard on 15 December 2017, and (2) NSD 1218 of 2017, which is an application for review of a decision made by a registrar of this Court to refuse to accept for filing certain documents. She stated (as written):
I consider that I have been in particular exposed on some extreme victimization and criminal attacks during the last two weeks because I have to file by today a large number of documents in my proceedings against a Deputy District Registrar. I have been physically and psychologically attacked on a daily basis, including attacks on me by toxic chemicals from which I have severe pain and bleedings on my toes and other organs that cannot be healed, as it occurs again all the time. I have been also verbally and physically abused as well.
The documents that I have to file today, some of them I am preparing for the third time. They were destroyed with attacks to my computer. I was few weeks ago sedated and made sick and during this time large number of USBs were stolen, which include evidence for all my proceedings before the Court, and before that was the stealing and the destruction of my evidence in the storage of the Respondents in this proceedings. This week my computer was again destroyed for the second time in several weeks, and I have been put under extreme financial pressure in order not to be able to repair and produce the documents for today. So, I am currently under extreme pressure and I don’t know if I will be able to produce all documents for today. I also have other pre-arranged activities that I have to deal with.
Ms Simjanovska said that she considers that there “have been created in this proceeding a very complex situation, because of a large number of procedural and other irregularities, and … decisions have been made by the Court without any evidence produced by the Respondents”. She says that she has received “information from the Police that the First respondent had a contract for a storage in my name, with incorrect information about me which changes the whole case in this matter”. She notes that this information has not been provided by the respondent(s) to date, that the Court refused leave to issue a subpoena to the respondents and Mr Michos has not responded to correspondence from her about the issue.
Ms Simjanovska expresses disagreement with the reasons I gave for dismissing interlocutory applications seeking to restrain the respondents from removing her belongings from storage units. This decision was made and ex tempore reasons given on 17 May 2017 and published reasons were sent the parties on 29 June 2017: see Simjanovska v Sentumar Pty Ltd trading as Storage King Rockdale[2017] FCA 736.
Ms Simjanovska goes on to refer to a claim that I am biased. In terms, she says (as written):
Further considerations of the relevant legislations and the case law has confirmed to me that I was improperly forced to remove my properties from the storage in this proceeding, and without a hearing being held about it, when the storage space was my security in relation to the money that Storage King owes to me. With due respect to Justice Farrell, I also consider that some very improper judgments have been given in the ex-tempore decision, which are not just procedurally improper, but in law as well, and provide unjustified benefit to the Respondent. I also consider that some serious procedural irregularities occurred in this proceeding. I further have serious problems with the transcript that was only recently given to me, even though I have requested it long time ago. I have also made an application for Justice Farrell to withdraw herself from this proceeding, for which application I consider I have solid grounds. However, this application was not heard, but the ex-tempore decision was given.
The email concluded (as written):
My apology that this correspondence is sent at this late stage, however, as I said my computer is broken, and I have been also problems with any public computer I am approaching to use. I also have problems accessing my email account as well.
In light of the above, I request from the Court the following:
ŸThe Case Management hearing that has been listed for today be adjourned for a day after Wednesday, 30 November 2017.
ŸThe Court to note that I will be providing information about what action I will be undertaking in this proceeding by Monday, 04 December 2017.
Application to dismiss or strike out originating process
After a further brief adjournment, Mr Michos made an oral application to dismiss Ms Simjanovska’s substantive originating application against the respondents under r 5.23(1)(b). Rules 5.22 and 5.23 relevantly provide:
5.22 When a party is in default
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.
5.23 Orders on default
(1)If an applicant is in default, a respondent may apply to the Court for an order that:
(a)a step in the proceeding be taken within a specified time; or
(b)the proceeding be stayed or dismissed for the whole or any part of the relief claimed by the applicant:
(i) immediately; or
(ii) on conditions specified in the order.
Mr Michos also applied to strike out her application under r 16.21 in accordance with written submissions previously made to the Court, including on the basis that Ms Simjanovska’s pleading is evasive and ambiguous, that it was likely to cause prejudice, embarrassment and delay and it completely fails to disclose a reasonable cause of action.
The question of bias
It is necessary first to deal with the question of bias.
I have never met any of the applicant, the respondents or the respondents’ solicitors, outside of the courtroom. I did not know of any of them before this matter and NSD 416 of 2017 were assigned to my docket. I have conducted case management hearings in relation to both matters: there is no obvious ground for a complaint of bias arising out of any of them.
In this matter I have been required to consider Ms Simjanovska’s interlocutory applications to prevent the respondents from removing her property from storage units at the first respondent’s premises. Following an interlocutory hearing of her application for urgent relief lodged on 12 May 2017, I heard further argument on that application on 17 May 2017. After I said that I would dismiss her applications for interlocutory relief, Ms Simjanovska behaved in an extremely disruptive fashion during my delivery of ex tempore reasons. She attempted to speak over me on many occasions as she found cause to disagree with what I was saying. During one of these occasions she said words to the effect that I was biased and should recuse myself. I refused to do so and continued with delivery of the reasons. I took the view that what Ms Simjanovska said then was in the heat of the moment. She did not repeat the application at the end of that hearing. Until exhibit A was sent, Ms Simjanovska has not sought to repeat the claim or made any formal application that I recuse myself from this matter or NSD 416 of 2017.
It is not clear whether Ms Simjanovska’s claim is that I am actually biased or that there is a reasonable apprehension that I may be biased. The fact that I made a decision adverse to Ms Simjanovska’s claims on interlocutory applications for reasons which she disagrees with is not, of itself, enough to make out a claim for actual bias. Further, I do not consider that there has been anything in the conduct of case management or interlocutory hearings, correspondence with the parties through Registry or arising out of my reasons in [2017] FCA 736 which might cause a fair-minded lay observer to apprehend that I might not bring an impartial mind to the questions to be determined in this matter.
I accordingly refuse to recuse myself.
Should the case management hearing be adjourned or the respondents’ application determined?
Ms Simjanovska claims that she had inadequate notice of the case management hearing to be conducted on 24 November 2017. This appears to be based on her failure to apprehend the nature of the communication from the Court which she acknowledges receiving early in that week. I do not accept this to be a valid basis for adjournment of the application.
I marked a copy of an email from the New South Wales District Registry dated 17 November 2017, to which Ms Simjanovska referred in her email, as exhibit B. That exhibit states:
From:NSW DR
Sent:Friday, 19 November 2017 9:07 AM
To:[Mr Michos’ email address]
Subject: FW: NSD496/2017 Simjanovska v Sentumar Pty Ltd Trading as Storage King Rockdale
UNCLASSIFIED
BY EXPRESS POST TO Ms Elka Simjanovska [street address redacted]
Dear Parties,
This matter has been listed for a case management hearing next Friday, 24 November 2017 at 10.00 am at the Law Courts Building in Queens Square, 184 Phillip Street, Sydney NSW 2000
Yours faithfully,
NSW DR
Ms Simjanovska lays the blame for her failure to take adequate account of the content of exhibit B to two causes: the fact that there was no signed covering letter from the Court to which she would have attached significance and the fact that she was otherwise under pressure. She also makes claims of physical and other attacks on herself and dysfunction of her computer.
Ms Simjanovska has provided the street address (which has been redacted from the quote of exhibit B above) as her address for service. She refuses to accept service by email even though she corresponds from time to time with the Court and other parties by email. Exhibit B is clearly expressed as a communication to the parties, to be sent to her by express post and emailed to Mr Michos. The manner of service of exhibit B is therefore in accordance with the request of both parties. Further, I do not accept that it was necessary for the email to be signed or for the communication to be attended by any greater formality than it was.
I accept that Ms Simjanovska has other commitments but that is not a reason for her failure to attend the case management hearing or her failure to advise the Court of her request for an adjournment at an earlier time. Further, she frequently complains that she is pressured by the weight of material she has to prepare and unsubstantiated problems with her computer and physical and psychological attacks on her. The frequency of these claims and their unsubstantiated nature leads me to be sceptical about them.
I do not accept that these are adequate reasons for adjourning the case management hearing. Further, and more importantly, for the reasons set out below, I do not consider that there is substantial injustice in entertaining the application under r 5.23(1)(b) made by Mr Michos.
Merit of the substantive application and conduct of the application
In [2017] FCA 736, I gave reasons for my finding that there was no reasonable prospect of success of the claims made in the originating application lodged on 3 April 2017. On 17 May 2017, I also granted leave to Ms Simjanovska to amend her originating application by 13 June 2017.
On 5 June 2017, Mr Michos advised the Court that he would be away until late July 2017 and on 6 June 2017, he advised that all of Ms Simjanovska’s property had been removed from his client’s storage facilities. In light of Mr Michos’ intended absence until late July 2017, on 13 June 2017, the Court advised the parties that the period for Ms Simjanovska to file her amended originating process was extended to 21 July 2017.
On 29 June 2017, the reasons in [2017] FCA 736 were sent to the parties.
On 24 and 25 July 2017 the Court received a request from Ms Simjanovska for leave to issue a subpoena to the respondents, a request for access to transcripts in these proceedings and a request for an extension of time to file her amended originating process. On 26 July 2017, Ms Simjanovska was advised that the request for leave to issue the subpoena had been refused, the Court was considering her request for access to transcripts, and if she wanted a further extension of time to file an amended originating application she must file an interlocutory application and an affidavit in support. In fact, the request for access to transcripts had been referred to another judge for consideration.
Following a request for reasons for refusal of leave to issue the subpoena made by Ms Simjanovska on 7 August 2017, those reasons were provided to Ms Simjanovska on 14 August 2017.
On 10 October 2017, another judge determined that Ms Simjanovska should be given access to transcripts in hard copy, but not of transcribed reasons. Ms Simjanvoska was advised of this on 11 October 2017.
To date, Ms Simjanovska has not filed an interlocutory application for extension of time to amend her originating application or any affidavit in support of it.
Disposition
For the reasons set out in [2017] FCA 736, Ms Simjanovska’s originating application has no merit and the claims levelled at it by the respondents are well founded. She has not taken steps to amend her originating application in accordance with the leave given to her. I do not consider that the requests she made on 25 July 2017 or the timeline in which access to transcripts was given are an adequate reason for her failure to lodge an amended originating application or an interlocutory application and affidavit justifying why leave should now be granted for a further extension of time. She has therefore not prosecuted her application with sufficient diligence. Further, she did not attend the case management hearing on 24 November 2017. I do not consider that she has given an adequate explanation for not attending that case management hearing or seeking an adjournment earlier than she did.
For those reasons, I considered it appropriate to make an order dismissing the proceedings under r 5.23(1)(b). In those circumstances, it was unnecessary to make orders striking out the originating process under r 16.21.
Costs
In the ordinary course costs would follow the event. However, having regard to the fact that Ms Simjanovska is self-represented and in the best traditions of the legal profession, Mr Michos indicated that he would not bill his client in relation to these proceedings so that any such order would have no content. I did not understand this to mean that his client might not rely on the order for costs made on the interlocutory application on 17 May 2017. Accordingly, I made orders reflecting this position.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Farrell. Associate:
Dated: 27 November 2017
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