Sims v Suda Ltd

Case [2015] FCA 967

FEDERAL COURT OF AUSTRALIA

Sims v Suda Ltd [2015] FCA 967

Citation: Sims v Suda Ltd [2015] FCA 967
Appeal from: Application for extension of time and leave to appeal:
Sims v Suda Ltd (No 2) [2015] FCA 281
Parties: DOUGLAS ARTHUR SIMS v SUDA LTD (ACN 090 987 250)
File number(s): WAD 121 of 2015
Judge(s): SIOPIS J
Date of judgment: 28 August 2015
Catchwords: PRACTICE AND PROCEDURE – application for an extension of time and leave to appeal – applicant failed to attend Court hearings – application dismissed under r 35.32 of the Federal Court Rules 2011 – decision of primary judge not attended by sufficient doubt.  
Legislation: Federal Court of Australia Act 1976 (Cth) s 31A
Federal Court Rules 2011 rr 35.14, 35.32
Cases cited: Sims v Chong [2014] FCA 1069
Sims v Suda Ltd [2014] WASC 3
Lenijamar Pty Ltd v AGC (Advances) Limited (1990) 27 FCR 388
Date of hearing: Determined on the papers.
Date of last submissions: 27 July 2015
Place: Perth
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 28
Counsel for the Applicant: The Applicant did not appear.
Counsel for the Respondent: Mr N Ebbs
Solicitor for the Respondent: Bennett + Co

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WAD 121 of 2015
BETWEEN:

DOUGLAS ARTHUR SIMS
Applicant
AND:

SUDA LTD (ACN 090 987 250)
Respondent

JUDGE:

SIOPIS J

DATE OF ORDER:

28 AUGUST 2015

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

1.The applicant’s application for an extension of time and leave to appeal filed on 16 April 2015 is dismissed.

2.The applicant is to pay the respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WAD 121 of 2015
BETWEEN:

DOUGLAS ARTHUR SIMS
Applicant
AND:

SUDA LTD (ACN 090 987 250)
Respondent

JUDGE:

SIOPIS J

DATE:

28 AUGUST 2015

PLACE:

PERTH

REASONS FOR JUDGMENT

  1. The applicant has sought an extension of time and leave to appeal from the judgment of the primary judge in WAD 255 of 2014, delivered on 27 March 2015.

  2. The primary judge’s judgment was an interlocutory judgment in that it struck out the applicant’s statement of claim and dismissed his application under s 31A of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act). The applicant required leave to commence an appeal and the leave to appeal needed to be applied for within 14 days.

  3. On 16 April 2015, the applicant filed his application for an extension of time and leave to appeal, together with an affidavit in support thereof. The application was made pursuant to r 35.14 of the Federal Court Rules 2011 (the Rules).  The applicant also filed a draft notice of appeal and a statement saying that he wanted to make oral submissions in support of his application.

  4. The matter was listed for hearing on 4 June 2015.  When the matter was called the…

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AGLC
Sims v Suda Ltd [2015] FCA 967
Case
[2015] FCA 967
Decision Date

CaseChat Overview and Summary

Sims v Suda Ltd was a case in which the applicant sought an extension of time and leave to appeal against the orders of the primary judge. The primary judge had dismissed the applicant’s claims based on an indemnity agreement, failure to pay for "inventive steps", and fraud, finding that they were not adequately pleaded and lacked a reasonable prospect of success. Additionally, the primary judge ordered the removal of the applicant's statement of claim from the Court file as scandalous.

The legal issues before the court were whether the applicant’s application for an extension of time and leave to appeal should be granted, and if the applicant's failure to attend the Court hearings warranted the dismissal of the application. The applicant argued that the primary judge had erred in law and fact in dismissing the claims and had made findings that were unjust and prejudicial.

The court examined the applicant's grounds of appeal and found them to be without merit. The court held that the applicant's failure to attend the hearings constituted a significant procedural default, which, coupled with the lack of merit in the grounds of appeal, justified the dismissal of the application under rule 35.32 of the Federal Court Rules 2011. The court also noted that the decision of the primary judge was not attended by sufficient doubt to warrant an extension of time or leave to appeal.

The court dismissed the applicant’s application for an extension of time and leave to appeal, and ordered the applicant to pay the respondent's costs.

Orders

Orders of the court

1. The applicant’s application for an extension of time and leave to appeal filed on 16 April 2015 is dismissed.

2. The applicant is to pay the respondent’s costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Rule 35.32 of the Rules provides that:A respondent to an application under rule 35.12 or 34.14 may apply to the Court for an order that the application be dismissed:(a)for a failure to comply with a direction of the Court; or (b)for a failure to comply with these Rules; or (c)for a failure to attend a hearing relating to the application; or (d)for want of prosecution.THE DECISION OF THE PRIMARY JUDGE In his statement of claim, the applicant attempted to plead what he referred to as three claims. The primary judge categorised the claims broadly as breach of contract based on an indemnity agreement, failure to pay the applicant money for his “inventive steps”, and fraud. In respect of each of the claims there was an attempt to couch the claim in the alternative as a claim for misleading or deceptive conduct in contravention of the Trade Practices Act 1974 (Cth) or the Australian Consumer Law. The primary judge struck out the pleading as not complying with the rules of pleading. However, the primary judge also had regard to the underlying strength of each of the claims made by the applicant and determined that each of the claims should be dismissed under s 31A of the Federal Court Act as not demonstrating a reasonable prospect of success. In addition, the primary judge ordered that the applicant’s statement of claim should be removed from the Court file on the basis that the material was scandalous. The applicant has set out the grounds of his complaint about the primary judge’s orders in different terms in three different documents. In his application for an extension of time under the heading “Grounds of Application”, the applicant has stated:1.The Learned Primary Judge erred at law and fact in finding the Appellants Action was an abuse of process, was individually and in combination wholly without merit and should have been determined summarily pursuant to:a.Section 18 of Australian Consumer Law; (ACL)b.Section 4(2)(a) of the Competition and Consumer Act 2010; (CCA)c.Section 184(1)(a)(b)(c)(d) of the Australian Corporations and Securities Legislation.2.The Learned Primary Judge should have used his position as Judge and not struck out the Appellants pleadings and avoided the stultifying the development of Law… In his affidavit of 15 April 2015, the applicant has set out the following grounds of complaint:1.The Learned Primary Judge erred in fact and Law in finding against the Appellant in Claim one of the Action as abuse of process, vexatious, Scandalous and frivolous and should have found pursuant to Section 18 of Australian Consumer law, and, or Indemnity…2The Learned Primary Judge erred in fact and law in finding against the Appellant in Claim two of the Action as an abuse of process, Vexatious, Scandalous and frivolous and should have found pursuant to Section 18 Australian Consumer law and, or 184(1)(b) of the Australian Corporations and Securities Legislation and reserved his judgement until the higher Court ruling on the Appellants rights to litigate “Quantum Merit” [sic]…3.Learned Primary Judge erred in fact in finding the Appellants Third Claim in the Action was the Action as an abuse of process, Vexatious, Scandalous and frivolous and should have found pursuant to Section 18 Australian Consumer Law and, or 184(1)(b) of the Australian Corporations and Securities Legislation.4.Learned Primary Judge erred at Law in uplifting the Appellants Affidavit and attachments which attachments are copies of the records of the Respondent and should have granted the Appellant his wanted Orders to inspect, copy and authenticate the Respondents records to the Court pursuant to the evidence Act and not stultify the development of Law.5.The Learned Primary Judge erred in fact in finding against the Appellant by summary judgement and caused injustice against a person with disability and should have found pursuant to Human Rights Legislation, abuse of a 72 Year Old person suffering chronic health defects, illiteracy in Law, a person in need of assistance where assistance and explanation is required.6.Learned Primary Judge erred at law and fact in finding the failure of the Appellant to properly plead fraud and should have granted leave for the Appellant to seek assistance and re plead the Action.

Ratio Decidendi

Legal Principle Established

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