Simonsen, E.g. v Westpac Banking Corporation

[1992] FCA 391

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IN THE FEDERAL COURT OF AUSTRALIA)

NEW SOUTH WALES DISTRICT REGISTRY)	No NG 447 of 1991
GENERAL DIVISION	1

BETWEEN EDWARD GEORGE SIMONSEN

Applicant

AND	W E S T P A C	B A N K I N G
CORPORATION Respondent

EX TEMPORE JUDGMENT

EINFELD J SYDNEY 12 MAY 1992

The Court has today received an affidavit from Mr McKell, a solicitor acting for the applicant, but instructed very recently and not particularly comprehensively. At least the fact that Mr McKell has been here has enabled some material to be put together so that some vague idea of the likely immediate future of these proceedings can be contemplated. But the matter is still very much up in the air. At the present time the applicant appears to be performing work in Ghana from where international communications are, I know, not particularly good. However, the opportunities for progress in the case are better than the inaction since the judgment I gave on 8 April would indicate.

now been three orders for discovery, each of which has been	ignored. There have been two orders for the provision of
statements of the evidence to be given on behalf of the applicant, both of which have been ignored. There has been an order for an affidavit or statutory declaration as to why these matters have been ignored and that too has been ignored. In the ordinary course of events the least that would be likely to happen in those circumstances would be that the defaulter would be asked to explain why he/she should not be dealt with for contempt of the Court's orders. Such an outcome is still very much a live possibility in this case.
One of the problems with discovery appears to be that it cannot take place until the applicant's documents are made available by his former solicitors, and they refuse to give up the file until an arrangement has been made in relation to their unpaid costs. That problem must have existed for some time. How it is affected by the applicant's absence in Ghana is not explained. Neither is any explanation given for the applicant's complete failure to comply with the other orders previously made.
the proceedings for want of prosecution and for ignoring the The applicant is now on the verge of a motion to strike out
Court's orders. There are at least two provisions, in order 10 and order 15, of the Court's rules which would appear to permit a successful application for the striking out of these proceedings on the facts here. However reluctant the Court might be to take punitive action against those responsible for contumelious disrespect, and patient before doing so, ignoring orders of the Court does have serious consequences, including fatality to the action itself.
The evidence shows that the applicant is in financial difficulties, although they do not seem to prevent him from travelling widely and often to earn a living. But his financial difficulties have apparently existed for several months and there has still not been an application for legal aid. Having in mind the delays that usually accompany applications for legal aid, it means that even if one is lodged now, it is unlikely that there will be progress in this case for some months yet. Because nothing has been done on behalf of the applicant, it is not even possible to assess whether the case or even a legal aid application has any chances of success.
As I have said previously, these circumstances cannot be allowed just to continue as at present. On the applicant's behalf, but without very much by way of his client's
adjourned until some time in July. The respondent, pointing instructions, Mr McKell suggests that the matter should be
to the evidence that the applicant is due to be back in Washington from Ghana on about 26 May, suggests that not much longer than the beginning of June should be allowed for action to be taken.
I must confess to not being possessed with sufficient wisdom
to be able to resolve such a monumental dispute as to dates but I will allow the applicant one more chance to get his case into some form of order by adjourning the matter to the end of June. That will be more than a full month after his expected return to Washington. Without full or substantial compliance with existing orders or an equivalent demonstration of a serious commitment to his litigation, further indulgences to the applicant should not be anticipated.
The matter is relisted at 9.30 am on 30 June 1992 and the respondent's notice of motion to strike the case out will be adjourned to that date. If little or no progress can be reported then, there will need to be pressing evidence of injustice to persuade me not to proceed with the motion to strike out the proceedings on that day. Costs are reserved.

The application was originally filed nine months ago and almost nothing has been done in the case since. There have

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