Sims v RM Capital Pty Ltd and Anor (No.3)
[2015] FCCA 1301
•22 May 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SIMS v RM CAPITAL PTY LTD & ANOR (No.3) | [2015] FCCA 1301 |
| Catchwords: PRACTICE AND PROCEDURE – Application in a case for an extension of time in which to comply with an order of the Court – effect of application for indeterminate extension of time arising from appeal proceedings in another matter in Federal Court – whether litigation or re-litigation of matter – whether contrary to objects of legislation. |
| Legislation: Australian Consumer Law, s.18 |
| Construction, Forestry, Mining and Energy Union v Gittany [2014] FCA 164 Deputy Commissioner of Taxation v Jaskola [2011] FMCA 67; (2011) 82 ATR 61; (2011) 8 ABC(NS) 603 Goodall v Nationwide News Pty Ltd [2007] FMCA 218 Hawkins v Kingsway Group Ltd [2009] FCA 1073 Hunter Valley Development Pty Ltd v Cohen (1984) 3 FCR 344 Jackson v P/T Constructions WA Pty Ltd [2015] FCCA 1014 Jahan v Minister for Immigration & Anor [2009] FMCA 249 Minister for Immigration & Multicultural & Indigenous Affairs v SZANS [2005] FCAFC 41; (2005) 141 FCR 586 Sims v Chong [2014] FCA 1069 Sims v Eastland Medical Systems Ltd [2012] FWAFB 10783 Sims v RM Capital Pty Ltd & Anor [2014] FCCA 2977 Sims v RM Capital Pty Ltd & Anor (No.2) [2015] FCCA 149 Sims v Suda Ltd [2015] FCA 280 Sims v Suda Ltd (No. 2) [2015] FCA 281 Sims v Suda Ltd [2015] WASCA 65 Spalla v St George Motor Finance Ltd (No. 6) [2004] FCA 1699 Suda Ltd v Sims [2013] FCCA 1833 Suda Ltd v Sims(No.2) [2014] FCCA 190 Suda Ltd v Sims(No.3) [2014] FCCA 2127 Suh & Ors v Minister for Immigration & Citizenship & Anor [2009] FCAFC 42; (2009) 175 FCR 515 The Director of the Fair Work Building Industry Inspectorate v Linkhill Pty Ltd (No.3) [2013] FMCA 165 Winn v Blueprint Instant Printing Pty Ltd [2011] FCA 292 |
| Applicant: | DOUGLAS ARTHUR SIMS |
| First Respondent: | RM CAPITAL PTY LTD |
| Second Respondent: | JAMES BRADLEY RICHARDSON |
| File Number: | PEG 393 of 2013 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 14 May 2015 |
| Date of Last Submission: | 14 May 2015 |
| Delivered at: | Perth |
| Delivered on: | 22 May 2015 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the Respondents: | Mr N Ebbs |
| Solicitors for the Respondents: | Bennett & Co |
ORDERS
That the applicant’s application in a case filed 6 March 2015 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 393 of 2013
| DOUGLAS ARTHUR SIMS |
Applicant
And
| RM CAPITAL PTY LTD |
First Respondent
| JAMES BRADLEY RICHARDSON |
Second Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings concern an application in a case filed on 6 March 2015 to extend time for compliance with an earlier order of the Court extending time for compliance with an even earlier order of the Court.
The proceedings
On 22 December 2014, the Court made orders in these proceedings in the following terms:
(1)The application filed 20 December 2013 be struck out pursuant to r.13.10 of the Federal Circuit Court Rules 2001 (Cth).
(2)The applicant have leave to file and serve a further application by 27 January 2015, provided that:
(a)the application has annexed a statement of claim properly particularised; and
(b)the statement of claim must be prepared by a lawyer and include a certificate signed by the lawyer that any factual and legal material available to the lawyer provides a proper basis for each:
(i)allegation in the pleading;
(ii)denial in the pleading; and
(iii)non-admission in the pleading.
(3)The applicant pay the costs of the respondents on an indemnity basis, with the actual quantum, if not agreed, to be assessed by a Registrar of this Court.
(4)There be liberty to apply generally.
(Transcribed from the original without amendment).
On 20 January 2015, the applicant, Mr Douglas Arthur Sims (“Mr Sims”), filed an application in a case in which he sought orders as follows:
a)Date for compliance order dated 22 December 2014 be extended until 26 February 2015.
b)Certificate Pro Bono be issued.
c)Bennett & Co be struck from Court Registry (Conflict).
d)Cost be suspended.
On 23 January 2015 for reasons set out in the Court’s ex tempore judgment in Sims v RM Capital Pty Ltd & Anor (No. 2) [2015] FCCA 149 (“RM Capital (No. 2)”) the Court ordered that:
(1) In relation to the application in case filed 23 January 2015:
(a)the time for compliance with order 2 of the Court’s orders of 22 December 2014 be extended to 26 February 2015; …
The Court notes that on:
a)27 February 2015 the Federal Court dismissed an application by Mr Sims for leave to appeal against this Court’s judgment in RM Capital (No. 2) refusing him a pro-bono referral certificate under r.12.02(2) of the FCC Rules (as to the refusal of the certificate see RM Capital (No. 2) at [13]-[19] per Judge Lucev); and
b)5 March 2015 the Federal Court refused leave for an application to extend time to appeal all of the orders made in RM Capital (No.2).
On 6 March 2015 Mr Sims filed the present application in a case. The Court notes that the application in a case was filed eight days after the time for compliance with order (1)(a) of the Court’s orders of 23 January 2015 had expired.
Mr Sims’ application in a case seeks an order in the following terms:
Extension of time of 60 days be granted to the Applicant to sell assets and finance expert lawyers to represent Applicant and lodge Statement of Claim that complies with Federal Circuit Court Rules.
That extension of time would result in the time for compliance with Order 2 of the Court’s orders of 22 December 2014 being extended to 28 April 2015.
The application in a case was supported by an affidavit of Mr Sims filed 6 March 2015 which is short enough to quote in full:
1. I am the Applicant in this Application for extension of time to sell assets and engage a competent law firm to represent my interests and ensure justice prevails.
2. I make this Application arising from an Application for extension of time to Appeal the Judgement of this matter dated 22nd December 2014 before the Federal Court of Australia, which Application was dismissed and the Court made recommendation that this Application be made.
3. My wife holds nett equity in our joint assets and has now agreed to advance funds to me from the sale of these assets should it be required as a Third Party damaged Party.
4. My delay in making this Application arises from and is in respect of lack of knowledge and severe health issues, and
a) We have been forced to greatly reduce the sale price or the family home to secure an urgent sale to enable me to finance the engagement of lawyers particularly in view of the findings @ (68) page 33. “The evidence makes it clear that the Share Transfer was executed by EMS, that Mr Sims did request that the Share Transfer be given effect but no Share Transfer took place”.
5. I made a innocent mistake.
(Transcribed from the original without amendment).
The matter came before the Court for directions on 14 April 2015, at which time the Court made orders in the following terms:
1. By 21 April 2015, the Applicant file and serve a further affidavit providing additional information in respect of the matters raised in his affidavit sworn 6 March 2015 (First Affidavit) namely:
1.1 details and particulars of the ‘joint assets’ referred to at paragraph 3 of his First Affidavit;
1.2 details and particulars of the ‘net equity’ referred to at paragraph 3 of his First Affidavit;
1.3 the terms upon which the Applicant’s wife has agreed to ‘advance funds’ to the Applicant specifically:
1.3.1 the amount being advanced;
1.3.2 the date upon which it will be advanced;
1.3.3 the date upon which it is to be repaid;
1.3.4 whether the agreement is oral or in writing;
1.3.5 any further terms attaching to the agreement to advance the Applicant the sum of money;
as referred to in paragraph 3 of his First Affidavit.
1.4 details of the attempts made by the Applicant since the delivery of the primary decision of His Honour Judge Lucev on 22 December 2014 to engage legal representation in relation to these proceedings and the outcome(s) of the same.
2. The Applicant’s application for an extension of time to file a serve an amended Statement of Claim dated 6 March 2015 be adjourned to a hearing at 9.30am on 29 April 2015.
3. The Applicant pay the Respondent’s costs fixed in the sum of $1,250.00 on or before 1 May 2015.
Mr Sims sought to comply with order 1 of the Court’s orders of 14 April 2015 by filing an affidavit on 20 April 2015 in the following terms:
1.1 Joint assets refer to the joint ownership of 4 Alness Street Applecross.
1.2 Net equity refers to the:
a) nett amount received from the sale of this Asset.
b) Conditional arrangement of Sale of copy right to parties associated to former publishing company TSL, Germany amounting to Euro 150,000.00
c) Anticipated nett amount received form commercialisation of two new inventions$1,500,000.00
1.3 The terms of which my wife has agreed to advance funds are on call.
1.3.1 $10,000.00 for initial legal fees to submit pleadings that comply with the Rules of the Federal Circuit Court.
1.3,2 Available 15 May 2015
1.3.3 On call.
1.3.4 Arrangement is Oral
1.3.5 The transfer of 122 Freezone Pty Ltd for issue value (completed).
1.4 The Federal Court appointed Mr Matthew Howard as pro bono lawyer to represent me in matters surrounding the Shares, the dismissal of the Action 1535 of 2012 by summary process and the misrepresentation by Patti Peng SA Chong. The advice and ground to oppose Barker J finding as an abusive process were challenged in this matter that my attempts to re litigate the promise to pay by Suda Ltd impacts upon RM, and my action is by NO means abusive and amounts to fraud.
1.4.
(a) The appointment of pro bono lawyer arose from a judgement by Barker J that I had engaged in an abuse of process which was incorrect according to Judge Siopis
(b) The matter has been heard before the Federal Full Court and preliminary advice is that the Court will rule:
i) I have the right to litigate Suda Ltd for quantum merit;
ii) I have the right to sue Patti Peng SA Chong for misrepresentation for the total amount of the arrangement $3.9 plus interest and costs; .
ii) Patti Peng SA Chong will join RM Capital Pty Ltd for failing to deliver the said shares the subject of PEG 393:
c) I have met with Federal Legal Aid who informed me they do not have the resources or expertise in these corporate matters but I am indemnified for all costs including legal cost in pursuing the enforcement of my contract with. Suda Ltd, which includes the costs incurred in CIV 393 of 2013.
d) I met with barrister Mr Garry Lawton and discussed his engagement to represent me in this and a number of matters with some contingency. He informed me in writing that he must decline due to ill health and work load.
e) I engaged lawyers Legal M 6:8 Legal on the matter to recover taxed Legal costs of $99;000 against Mr Roy Neil McHutchison owed to me from a judgement in the Federal Court of Australia assigned to me by Western Research ·& Development for a debt equity swap, and during that process inquired as to the amount of fees to plead a matter and that amount was predicted to be approximately $10,000.
f) I have had discussion on submission to Human Rights for abuse of my rights as disability person suffering age, ill health, illiteracy and a person in need of assistance when assistance is required.
g) I have also spoken with parties to a class action against Suda Ltd which names RM for alleged deceit and breach of law which matters have been referred to British fraud police, U.K. Companies House and ASIC by members of this group. Whilst I am not a member of this Group I have furnished them with substantial evidence including the matters in CIV 393 of 2013 to assist in charges being laid.
3. The opinion of previous lawyers HHG legal, Michael Patterson and Associates, Gibson & Gibson was that all and any costs in enforcing the terms of my contract are irrevocably indemnified and the Action against RM and others forms part of the enforcing compliance of my contract. No lawyers has EVER stated that my actions (any of them) are abusive or that I represent a delinquent litigator and have sound claims on each and every matter before each and every court, but I was the weaker party and it would be time consuming and expensive t bring justice. It begs explanation as to the prejudice displayed and published against a disability person in need of justice.
(Transcribed from the original without amendment.)
When the matter came before the Court on 29 April 2015 the hearing of the application was relisted to 14 May 2015, and the Court made orders for the filing and serving of outlines of submissions by Mr Sims by 8 May 2015 and by the respondents by 13 May 2015. The Court notes that objections to the affidavits filed by Mr Sims on 6 March 2015 and 20 April 2015 were included with the respondents’ submissions. For reasons which will become apparent the Court has found it unnecessary to deal with those objections.
Principles – extension of time for compliance with a Court order
As the Court observed in RM Capital (No.2) in relation to the exercise of the Court’s discretion under r.3.05 of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) to extend the time specified in a court order:
a)there are no criteria for extending the time set out in r.3.05 of the FCC Rules; and
b)the Court’s discretion is, therefore, unfettered, but it is generally accepted that the relevant considerations are those set out by the Federal Court in Hunter Valley Development Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 per Wilcox J, namely:
i)that the relevant time limit ought not be lightly ignored;
ii)the length of the delay;
iii)the explanation for the delay;
iv)the prejudice to the other party; and
v)the prospects of success of the underlying application, with the emphasis generally being on this consideration; and
c)it is for the Court to weigh the factors, and according to the particular circumstances one factor may outweigh another.
See RM Capital (No.2) at [5]-[6] per Judge Lucev; and also Winn v Blueprint Instant Printing Pty Ltd [2011] FCA 292 at paras.15-16 per Ryan J; Deputy Commissioner of Taxation v Jaskola [2011] FMCA 67; (2011) 82 ATR 61; (2011) 8 ABC(NS) 603 at [18] per Lucev FM and Hawkins v Kingsway Group Ltd [2009] FCA 1073 at [5] per Stone J.
Consideration
The time limits set out in the Court’s earlier orders have not been complied with. Nor, would it appear, has Mr Sims been capable of complying with the time limit he proposed in the present application in a case. 28 April 2015 has now passed and no Statement of Claim has been filed, nor even prepared – even in draft. Mr Sims would be aware that ignoring a time limit exposed him to a risk when the Court comes to weigh the factors concerning extension of time. It was an issue expressly dealt with by the Court in RM Capital (No.2) at [5]-[6] per Judge Lucev. In that instance Mr Sims benefitted from the fact that he did not, at that time, ignore the time limit specified in the Court’s 22 December 2014 orders. In this regard the Court notes that in RM Capital (No.2) at [6] per Judge Lucev the Court observed as follows:
In this case Mr Sims has not ignored the time limit. The application in a case was filed a week before the expiry of the time specified in the Court’s 22 December 2014 orders. There is, therefore, no delay in making the application in a case, and the delay or extension sought in which to comply with the Court’s 22 December 2014 orders is only a period of four weeks.
The Court notes that in this instance the length of delay in making the application for an extension of time for compliance with the Court’s orders is only eight days. Of itself that is not a lengthy delay, but it must be considered against the background of:
a)the fact that the substantive application was struck out, with leave to replead: see Sims v RM Capital Pty Ltd & Anor [2014] FCCA 2977;
b)that indulgences have been granted, and that more than three and a half months have now passed since the Court extended time for compliance with order 2 of the Court’s orders of 22 December 2014, at which time it specifically took account of the fact that there was a need for extra time for Mr Sims to brief lawyers: RM Capital (No. 2) at [11] per Judge Lucev; and
c)the extended time (to 28 April 2015) sought by this application in a case for compliance with order 2 of the Court’s orders of 22 December 2014 has now passed, and despite it having passed more than two weeks ago, there is no evidence before the Court to indicate when, or even if, a Statement of Claim might be filed, and no evidence from either Mr Sims or a lawyer indicating that a draft Statement of Claim was in preparation, or even contemplated, or that any steps had been taken to specifically obtain advice on the specific issues or filing of a Statement of Claim (save for the discussion with Mr Lawton, the time of which is not revealed).
The explanation proffered for the delay is that Mr Sims was engaged in proceedings in the Federal Court seeking, in the earlier proceedings, leave to appeal this Court’s refusal in RM Capital (No.2) to issue a pro-bono certificate, and in the later proceedings an extension of time to file an appeal against this Court’s judgment in RM Capital (No.2). The Court notes that the later of the Federal Court proceedings was dismissed the day before Mr Sims made the present application in a case.
The fact the applications made to the Federal Court were not granted, and the applications were dismissed, does not excuse the failure by Mr Sims to file within time an application in a case to further extend time in these proceedings prior to the already extended period of time for compliance with order 2 of the Court’s orders of 22 December 2014 expiring on 28 February 2015.
Mr Sims’ affidavits refer to joint assets allegedly held with his wife, and the advancement of loan funds agreed to by his wife from the sale of those joint assets “should it be required”, and the fact that he has been forced to reduce the sale price of the family home in order to secure an urgent sale to enable him to finance the engagement of lawyers for these proceedings. It was not in dispute for the purposes of these proceedings that the family home had been sold.
The assertions made by Mr Sims in his affidavits are unsupported by any cogent evidence of:
a)the nature or value of the joint assets, other than in the most general and unsatisfactory of terms;
b)the nature of the loan fund agreement with his wife, or any evidence of the actual terms of that agreement for a loan of $10,000, besides it being “on call”;
c)the asking and sale price of the family home;
d)any equity held in, or realised because of the sale of, the family home by Mr and Mrs Sims, either jointly or singly;
e)any of Mr and Mrs Sims’ liabilities following the sale of the family home; and
f)whether, having regard to their liabilities and any equity realised from the sale of the family home, there were sufficient funds to fund the preparation of what appears to be likely to be a complex Statement of Claim.
The paucity of evidence as to the financial position of Mr Sims (and to the relevant extent Mrs Sims) does not allow the Court to draw any proper conclusions concerning Mr Sims’ (or to the relevant extent, Mrs Sims’) financial position, and as a consequence, does not provide any proper explanation for the delay in making the application in a case.
There is also a paucity of evidence as to the alleged cost of $10,000 to prepare a Statement of Claim in this matter. The source of that sum is a figure seemingly given to Mr Sims by a lawyer engaged by him on another matter, seemingly being recovery of costs in unrelated litigation in the Federal Court, during which process Mr Sims “inquired as to the amount of fees to plead a matter and that amount was predicted to be approximately $10,000”: Mr Sims’ 20 April 2015 Affidavit, para.1.4(e). That evidence reveals that nothing more than the most general of inquiries concerning the cost of pleading a Statement of Claim was made. The inquiry does not even appear to have been specific to this matter. Further, it does not appear that the specific circumstances of this matter were explained to the lawyer concerned: certainly there was no indication as to what, if any, instructions were given, what meetings were held to discuss the matter, and how long any meeting lasted, what the lawyer’s understanding of the claim actually is, and how a figure of $10,000 for the drafting of a Statement of Claim was arrived at. Without going through them in detail, it is apparent from other proceedings in which the issue to which any Statement of Claim might relate, namely the Share Transfer, is complex, and has been hard fought: see, for example, some of the cases referred to at [25]-[27] below. Having regard to the paucity of the evidence, and the failure to lead any evidence as to how the sum of $10,000 was arrived at, it appears to the Court that there has been no proper consideration given to the calculation of the sum necessary for the drafting of a proper Statement of Claim in these proceedings, and the Court has little or no confidence that the sum of $10,000 which Mrs Sims appears (although there was no evidence from her) to be prepared to loan to Mr Sims would be anywhere near sufficient to cover the preparation of a proper Statement of Claim in these proceedings.
The Court also notes that Mr Sims discussed the matter with Mr Lawton, but this was in the context of an engagement in respect of a number of matters, and does not appear to have involved any specific discussion of these proceedings, either as to their substantive content or the possible costs of drafting a Statement of Claim. In any event, Mr Lawton declined to proceed due to ill health and workload: see Mr Sims’ 20 April 2015 Affidavit at para.1(d).
The Court also observes that Mr Sims has had the time and energy to:
a)discuss a submission to “Human Rights” (presumably the Australian Human Rights Commission) concerning alleged disability discrimination claims arising from the conduct of his litigation; and
b)speak with parties concerning a class action against Suda Ltd, in which the first respondent is said to be named, and said to involve authorities in the United Kingdom and the Australian Securities and Investments Commission, and to have provided them with “substantial evidence” including matters related to the present proceedings.
See Mr Sims 20 April 2015 Affidavit at para.1.4(f) and (g).
That Mr Sims chooses to engage in these activities, any outcome from which must necessarily be far-distant, is a matter for him, but affords no reason for this Court to grant an indulgence in respect of his failure to comply with time limits more immediately imposed by order of this Court, which had already granted him an indulgence by way of an extension of time in which to file the Statement of Claim.
Although not the subject of any evidence, the Court notes that at hearing Mr Sims made various allegations (which if not true are certainly scandalous) concerning alleged misappropriation and theft at settlement of the proceeds of the settlement of the family home by parties with costs orders against him. Given that these matters were not the subject of evidence, and given the manner in which they were put to the Court, the Court is not in a position to place any reliance upon them, but if they have any effect at all it appears to be to diminish the funds available to Mr and Mrs Sims. The possible effect of the allegations made or outcomes arising on the loan fund agreement with Mrs Sims was not coherently addressed or explained by Mr Sims.
The above circumstances engender in the Court no confidence that within any reasonable timeframe Mr Sims might be able to be caused to be prepared, filed and served a Statement of Claim in these proceedings.
Mr Sims also claims a lack of knowledge. It is not precisely clear what is meant by the alleged lack of knowledge. If it is intended to mean that Mr Sims is ignorant of the necessity to apply to extend time for compliance with a court order before that time expires, then the Court rejects that assertion, because Mr Sims is aware of the necessity to make application before time expires, and was made aware of it in very recent times by this Court: RM Capital (No.2) at [6] per Judge Lucev. The Court also notes that:
a)Mr Sims has been aware of the general requirements with respect to making applications within time in judicial or quasi-judicial proceedings as a consequence of Sims v Eastland Medical Systems Ltd [2012] FWAFB 10783 (“Eastland Medical Systems”) where the Full Bench of Fair Work Australia (“FWA”) dealt with an appeal by Mr Sims against the dismissal at first instance before FWA of an application by Mr Sims in relation to an alleged unfair dismissal application, which application was 177 days out of time: Eastland Medical Systems at [2] and [7] per O’Callaghan SDP and Cloghan and Roe CC; and
b)the judgment of the Supreme Court of Western Australia, Court of Appeal in Sims v Suda Ltd [2015] WASCA 65 (“Sims (Court of Appeal 2015)”) in which the Court of Appeal observed as follows:
8 From that point the appellant seems to have turned his attention elsewhere. As at 10 February 2015, when the present application was filed by the respondent, no further attempt had been made to file the appellant's case and no attempt has been made since. Even the listing of the respondent's application for hearing (of which the appellant was notified by email and by formal notice, both sent on 27 February 2015) did not stir the appellant into action. No explanation has been offered by the appellant for his inaction, inaction that cannot simply be explained by unfamiliarity with court processes. Whilst the appellant is not legally qualified, he has a good deal of experience in litigation in this and other courts, both acting in person: Sims v Jooste [2013] WASCA 245; Sims v Jooste (No 2) [2014] WASC 373; Suda Ltd v Sims [2014] WASC 376; Sims v Keene [2014] WASC 248; Sims v Suda Ltd [2014] WASCA 113; Sims v Suda Ltd [2014] WADC 7; Sims v Suda Ltd [2014] WADC 161 - and with legal representation.
9 The appellant's case is now some eight weeks late and almost seven weeks have elapsed since the appellant was notified that the second version of the appellant's case had not been accepted for filing. It could not have escaped his notice that he was in default of filing the appellant's case and it is unlikely he did not understand that he must make an application for an extension of time, supported by an affidavit setting out the circumstances which he said justified an extension. If, however, he was in any doubt as to what to do he should have sought advice. Instead he did nothing, apparently assuming that when the respondent's application came on for hearing he would be granted another extension of time.
10 The importance of compliance with the rules and orders of the court cannot be overstated. The rules and orders of the court are not mere suggestions to be acted upon or not as it suits a litigant. The public interest in the effective utilisation of the public resources of the court and the interests of the other party in an expeditious and cost effective resolution of the appeal require that the rules and orders of the court be complied with, and if circumstances arise which make that impossible, that steps are taken promptly to seek an extension of time. Extensions of time are not, and cannot be, there simply for the taking.
Sims (Court of Appeal 2015) at [8]-[10] per Buss and Newnes JJA.
Sims (Court of Appeal 2015) was handed down on 30 March 2015, after Mr Sims had filed his application in a case in these proceedings, but two weeks before the Court made its orders of 14 April 2015. If nothing else, Sims (Court of Appeal 2015) ought to have highlighted to Mr Sims the importance of taking appropriate action to progress a claim of any type in court proceedings. It is also appropriate to observe that the pattern of conduct revealed by Sims (Court of Appeal 2015) bears certain similarities to Mr Sims’ conduct in these proceedings.
Although claiming a lack of knowledge, Mr Sims is not the average self-represented litigant. Rather, he has “a good deal of experience in litigation”: Sims (Court of Appeal 2015) at [8] per Buss and Newnes JJA, and can be taken to be far more aware of practice and procedure in courts generally than the average self-represented litigant. In addition to the experience in the Supreme Court of Western Australia, Court of Appeal, the Supreme Court of Western Australia and the District Court of Western Australia referred to in the extract at [25(b)] above from Sims (Court of Appeal 2015) at [8] per Buss and Newnes JJA, reference could also be made to:
a)Mr Sims’ experience before Fair Work Australia referred to at [25(a)] above;
b)Mr Sims’ experience before the Federal Court, including in:
i)Sims v Chong [2014] FCA 1069 (“Chong”) involving a successful application for summary judgment to strike out Mr Sims’ Statement of Claim (which is presently reserved for judgment on appeal to the Full Court of the Federal Court, as to which see [32]-[33] below);
ii)Sims v Suda Ltd [2015] FCA 280 where the Federal Court made the following observations in a two paragraph judgment:
1 The applicant's interlocutory application for leave to file a substituted statement of claim is dismissed. So far as concerns the other orders which he seeks, that application will be adjourned to a date to be fixed for hearing. I have listened carefully. I have considered his affidavit made on 2 February 2015 filed yesterday in support of the application. It does not disclose, in any sensible or comprehensible manner, the proposed content of any substituted statement of claim.
2 I have also heard Mr Sims attempt to explain what it is that he wishes to do. Nothing that he has told me from the bar table this morning elucidates that issue. This matter has been on foot for a considerable amount of time. He has had since 12 September 2014, or thereabouts to consider his position when the respondent's interlocutory application seeking to strike out his statement of claim was filed. Only yesterday has he taken the steps in response. I take into account that he was hospitalised in late December 2014, and again on or about 11 January this year. However, neither of those matters explains the delay between the date upon which the respondent filed its application to strike out his statement of claim and the time at which he was first admitted to hospital.
iii)Sims v Suda Ltd (No. 2) [2015] FCA 281 (“Sims No. 2) (Federal Court 2015)”) where Mr Sims’ Statement of Claim was struck out and removed from the court file with an order for indemnity costs. In the course of that judgment the Federal Court observed that:
The applicant, although self-represented, is well experienced in litigation having commenced at least 40 separate proceedings in his own name in various jurisdictions across Western Australia.
Sims (No. 2) (Federal Court 2015) at [7] per Gilmour J; and
iv)the two applications for leave arising from this Court’s judgment in RM Capital (No.2); and
c)Mr Sims’ experience in this Court, which, in addition to the present matter, includes:
i)Suda Ltd v Sims [2013] FCCA 1833 where a counterclaim by Mr Sims was struck out with leave to replead;
ii)Suda Ltd v Sims (No.2) [2014] FCCA 190 being a costs application arising from the immediately preceding mentioned proceedings; and
iii)Suda Ltd v Sims(No.3) [2014] FCCA 2127 where five of six claims made by Mr Sims, and a repleaded Reply and Counterclaim, were struck out.
In the above circumstances, whatever is meant by “a lack of knowledge” it affords no basis in these proceedings for the extension of any further indulgence to Mr Sims, even as a self-represented litigant.
Mr Sims also alluded, in very general terms, to health issues which might have precluded his making the application in a case within time. There is no doubt that Mr Sims has previously had health issues, but in the present context, there is no evidence as to how any health issues that he presently has have, or might have, affected his capacity to comply with the Court’s orders extending time to comply with order 2 of the Court’s orders of 22 December 2014. Again, Mr Sims is aware of the necessity to lead evidence as to health issues in an extension of time application, and did so in RM Capital (No.2) at [6]-[8] per Judge Lucev, where it was held that the evidence then adduced adequately explained why an extension of time was being sought. There is no evidence in relation to this application in a case of a similar type, or, indeed, any relevant type.
In all of the above circumstances:
a)whilst the length of delay is not of itself inordinately long, it is not insignificant in the context of the various time limits which have been imposed by the orders already made providing time for Mr Sims to file a Statement of Claim, and extending that time; and
b)the Court is not satisfied that there is a satisfactory explanation for the delay in making this application which seeks to further extend the time for compliance with order 2 of the Court’s order of 22 December 2014.
In relation to prejudice it is manifest that the respondents are prejudiced by any further extension of time. These proceedings were commenced in December 2013, struck out with leave to replead in December 2014, and in the subsequent five months, notwithstanding an extension of time in which to comply with the leave granted to file a Statement of Claim, no Statement of Claim has been filed, and no Statement of Claim looks likely to be ready for filing in the foreseeable future. The ongoing expiration of time, particularly where the allegations which are sought to be pleaded date back several years, causes deterioration in the nature, quality and quantity of evidence which might be available, causing prejudice not only to the respondents, but also to Mr Sims, and to the administration of justice. Further, the respondents are put to not inconsiderable expense by having to fund ongoing litigation, initially struck out, but in respect of which leave to replead has been granted, but not yet availed of, and in respect of which there is no indication as to when it might be availed of. The leave to plead a Statement of Claim granted on 22 December 2014 has gone nowhere in the subsequent five months: the evidence does not disclose that there is even a Statement of Claim in preparation, or a lawyer briefed to commence its preparation, or a lawyer with whom it has been the subject of substantive discussions. The Court is in no doubt that the respondents suffer prejudice, both generally and specifically, by Mr Sims’ ongoing failure to commence preparation of a Statement of Claim in these proceedings.
If Mr Sims is correct in his submissions as to the outcome of the appeal in Chong, that is that he will be successful on the appeal, then, on his argument, it would appear that the substance of the matter which he seeks to litigate in this Court will be determined in Federal Court proceedings following the appeal in Chong, because, on the advice that Mr Sims says he has received from Senior Counsel, it will be possible to join the respondents to these proceedings to the proceedings in Chong. If that be right then the subject matter will be litigated in the Federal Court. The same matter should not be litigated, or re-litigated in two separate courts: see Spalla v St George Motor Finance Ltd (No. 6) [2004] FCA 1699 at [69]-[70] per French J and Jackson v P/T Constructions WA Pty Ltd [2015] FCCA 1014 at [93]-[98] per Judge Lucev (and the cases there cited, including Spalla). Further, if the subject matter is to be litigated or re-litigated in the Federal Court there will be no utility in the proceedings in this Court because any outcome in the Federal Court proceedings would be binding on this Court: Suh & Ors v Minister for Immigration & Citizenship & Anor [2009] FCAFC 42; (2009) 175 FCR 515 at [29] per Spender, Buchanan and Perram JJ; Minister for Immigration & Multicultural & Indigenous Affairs v SZANS [2005] FCAFC 41; (2005) 141 FCR 586 at [38] per Weinberg, Jacobson and Lander JJ. If, as is express in Chong, and implicit in the submission now made in this Court, the claim to be made in these proceedings under either the Trade Practices Act 1974 (Cth) (“TP Act”) or the Competition and Consumer Act 2010 (Cth) (“C & C Act”) is for a sum of at least $3,800,000, then the matter is one in respect of which this Court would have no jurisdiction because of the monetary limit on claims in this Court imposed by s.86AA of the TP Act and s.86AA of the C & C Act. That limit is $750,000. This latter matter is also significant even if Mr Sims’ appeal in Chong is unsuccessful.
What is sought by Mr Sims in relation to the Chong appeal and any subsequent proceedings arising therefrom is an open-ended or indeterminate extension of time. There is presently no indication as to when the appeal judgment in Chong might be handed down. If, as Mr Sims expects and submits, he is successful in that appeal, any subsequent determination of issues by the Federal Court might well be years hence. In proceedings involving multiple parties the pleadings, discovery and interlocutory processes are likely to be long and complex. Thus, very significant prejudice would accrue to the respondents insofar as these proceedings are concerned, by having them remain on foot for an indeterminate period of time whilst matters are determined in the Federal Court. That process, together with that indeterminate delay, is the antithesis of the mode of intended operation of this Court.
Reading together the objects of the Federal Circuit Court of Australia Act 1999 (Cth) (“FCCA Act”) in s.3, and the mode of operation in s.42, and having regard to the objects of the FCC Rules in r.1.03, the Court is intended to operate in a manner:
a)as informal as possible in the exercise of judicial power;
b)which is not protracted in its proceedings;
c)which resolves proceedings justly, efficiently and economically;
d)which uses streamlined procedures; and
e)which avoids undue delay, expense and technicality,
but in doing so should always act justly: Goodall v Nationwide News Pty Ltd [2007] FMCA 218 at [21] and [46] per Lucev FM, followed in The Director of the Fair Work Building Industry Inspectorate v Linkhill Pty Ltd (No.3) [2013] FMCA 165 at [30]-[31] per O’Sullivan FM and Jahan v Minister for Immigration & Anor [2009] FMCA 249 at [16]-[18] per Scarlett FM.
In Construction, Forestry, Mining and Energy Union v Gittany [2014] FCA 164 (“Gittany”) the Federal Court has observed that:
… The primary purpose of s 42 of the FCCA Act is to promote expediency in the resolution of matters before the FCCA: WZASQ v Minister for Immigration and Anor [2013] FCCA 1726 at [33]; Auguste v Nikolyn Pty Ltd and Anor [2013] FCCA 1630 at [16]. It does not impose an obligation on the FCCA to go behind the pleadings of an applicant. It does not diminish the need for an applicant to state the case that is to be relied upon. …
Gittany at [36] per Cowdroy J.
The ongoing failure of Mr Sims to file a Statement of Claim, or even to demonstrate that it might be likely that he will within some reasonable timeframe be able to file a Statement of Claim, results in these proceedings becoming unduly protracted, and unduly delayed, and not being able to be resolved with efficiency and economy. Almost seventeen months after the now struck out application was first filed, and more than four months after it was struck out, there is still no proper claim before the Court, to which the respondents might respond. That is the antithesis of the objects of the FCCA Act and FCC Rules set out at [34] above, and therefore in acting justly, the balance must swing in favour of the respondents’ argument that time should not be extended so as to allow a Statement of Claim to be filed. Moreover, if the Chong appeal is successful it is manifestly more appropriate, on Mr Sims’ own argument, that the matter remain and be determined in the Federal Court.
Mr Sims submitted that the respondents have no sustainable defence to his allegations of unconscionable and misleading and deceptive conduct contrary to s.18 of the Australian Consumer Law in failing to transfer the shares the subject of a properly endorsed Share Transfer from Eastland Medical Systems Ltd (now trading as Suda Ltd) to Mr Sims pursuant to an undertaking to pay Mr Sims for his inventions. The problem with that submission is that there is presently no proper Statement of Claim, or Statement of Claim at all, to which the respondents are required to respond. The respondents cannot be expected to respond to a clean slate.
The failure to file a Statement of Claim, or even to put to the Court a draft Statement of Claim, or give some evidence that a Statement of Claim has been discussed, substantively, with a lawyer, or is actually being prepared, or even what its substantive content and consequent causes of action and remedies might be, means that the Court has no means whatsoever of assessing the prospects of success of any future proceedings which might be brought by Mr Sims.
Conclusions and orders
In the circumstances and for the reasons set out above, it is evident that Mr Sims has not met any of the requirements which would justify the Court further extending time for compliance with order 2 of the Court’s orders of 22 December 2014. It follows that Mr Sims’ application in a case filed 6 March 2015 must be dismissed. Given that the application filed 20 December 2013 was struck out pursuant to r.13.10 of the FCC Rules by order 1 of the Court’s orders of 22 December 2014 the order dismissing the application in a case filed 6 March 2015 effectively bring these proceedings to a close, subject to hearing the parties with respect to costs.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 22 May 2015
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