United Petroleum Pty Ltd v Ohan
[2025] FedCFamC2G 166
•29 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
United Petroleum Pty Ltd v Ohan [2025] FedCFamC2G 166
File number: MLG 2264 of 2021 Judgment of: JUDGE FORBES Date of judgment: 29 January 2025 Catchwords: PRACTICE AND PROCEDURE – adjournment - respondent failed to appear at application for default judgment – respondent contacted chambers asserting medical incapacity and requesting adjournment for indeterminate period – no formal application for adjournment – applicant not met with substantive defence – longstanding proceedings – case management considerations - leave granted to proceed with default judgment application Legislation:
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 190, 191, 192
Cases cited: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27
Drummond v Canberra Institute of Technology (No 2) [2022] FCAFC 162
Kennedy v Secretary, Department of Industry (No 3) [2016] FCAFC 149
Taylor v Merlino [2022] VSCA 37
UTSG Proprietary Limited v Sydney Metro [2019] NSWLEC 107
Division: Division 2 General Federal Law Number of paragraphs: 47 Date of hearing: 29 January 2025 Place: Melbourne Counsel for the Applicant: Mr Murphy (leading); Mr Forrest Solicitor for the Applicant: Slocombe Brand Lawyers Respondents: No appearance ORDERS
MLG 2264 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: UNITED PETROLEUM PTY LTD (ACN 085 779 255)
Applicant
AND: MICHAEL OHAN
First Respondent
SAVVAS HAITIDIS
Third Respondent
PATRICK MUTO
Fourth Respondent
ORDER MADE BY:
JUDGE FORBES
DATE OF ORDER:
29 JANUARY 2025
THE COURT ORDERS THAT:
1.Leave is granted for the applicant’s application for default judgment to proceed undefended.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(revised from transcript)JUDGE FORBES
These written reasons record the ex tempore reasons given for my ruling that the applicant be permitted to proceed with its application for default judgment on an undefended basis. These written reasons depart from the ex tempore record only as necessary to include references to legislation and authorities, to include necessary background information and to improve grammatical expression and readability.
INTRODUCTION
This proceeding has been listed today for final trial, and also for the hearing of an application by the applicant, United Petroleum, for default judgment against the three remaining respondents, the first of whom is Mr Michael Ohan. There is no appearance in Court today from any of the respondents. The respondents were called outside the Court at 10.20am this morning and there was no appearance from any of them.
At the commencement of the hearing, I informed counsel for United Petroleum that the Court had received extensive correspondence from the first respondent advising of various health conditions upon which he relies as the basis of an adjournment of today’s proceeding.
That correspondence has extended over a period of time. As far as the Court is aware, the correspondence sent to my chambers has also been copied to the solicitors for the applicant. The correspondence is in various forms. It includes emails which attached medical certificates and medical reports. It also includes an affidavit from Mr Ohan which attaches a number of medical certificates and reports, and it includes correspondence where Mr Ohan has indicated his wish to apply for these proceedings to be adjourned.
In correspondence from my chambers, Mr Ohan has been repeatedly informed that should he wish to make an application for an adjournment he should file an Application in a Proceeding supported by affidavit, as required by the court rules. While I acknowledge that Mr Ohan has provided an affidavit to the Court, he has not filed a formal application in the case. Insofar as Mr Ohan may be subject to disadvantage because he is a self-represented litigant, my chambers have directed him to the Registry for assistance.
As a matter of fairness, I thought it appropriate to raise with counsel for the applicant the hypothetical proposition that if Mr Ohan were here today he might seek an adjournment based on the material which he has provided to the Court. I invited the applicant to respond to that hypothetical.
First of all, the applicant said it would oppose such an adjournment. Mr Murphy has relied on a number of authorities, including Drummond v Canberra Institute of Technology (No 2) [2022] FCAFC 162, Kennedy v Secretary, Department of Industry (Cth) FCAFC 149, and Taylor v Merlino [2022] VSCA 37.
Mr Murphy submits that the materials that have been provided to the Court by Mr Ohan, whilst they deal with various symptoms of the physical and mental conditions for which Mr Ohan is receiving treatment, they do not address the central question of whether Mr Ohan can participate in these proceedings, either by appearing for himself, being represented by another or appearing before the Court in some other way, such as online.
CONSIDERATION
An application for an adjournment calls upon the Court to exercise a discretion. In exercising the Court’s discretion in relation to an adjournment application, the interests of the applicant for the adjournment should not solely determine the outcome.
Important case management considerations must also be taken into account. So much has been clear since the High Court decision in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 (Aon Risk) and many subsequent decisions of this and other courts. In particular, the case management considerations in Aon Risk have subsequently been reflected in legislative amendments, including provisions such as sections 190 to 192 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
The overarching purpose of civil practice and procedure provisions requires that the Court should facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. Importantly, in considering the manner in which the Court makes case management orders, the Court must consider the objectives of the just determination of all proceedings before the Court, the efficient use of the judicial and administrative resources available for the purposes of the Court, the efficient disposal of the Court’s overall caseload, disposal of proceedings in a timely manner, and the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
Having regard to those case management considerations, I note that this proceeding has been before the Court since 2021. The listing today is the third occasion on which the matter has been listed for final trial. The applicant, no doubt, has expended a considerable sum in preparing for proceedings before this Court, complying with the Court orders, including by preparing affidavit material and outlines of case, and engaging counsel to appear at directions hearings and today.
The Court also has made itself available on numerous occasions and has been required to adjust a busy diary to facilitate the hearing of this matter. This matter has been listed for three days, should the final hearing proceed, and the dates of the hearing have been known to the parties for at least six months.
All of those matters would weigh in favour of refusing an adjournment application.
However, I do need to address the particular circumstances of Mr Ohan as known to the Court and the evidence that he seeks to rely upon. He has corresponded with my Chambers and has filed a number of medical certificates throughout the course of these proceedings.
On 29 April 2024 at 9.11am, my Chambers emailed the parties a Notice of Listing for a Directions Hearing listed on 6 May 2024.
On that same day, at 3.21pm, Mr Ohan responded to the Notice of Listing email stating he would not be able to attend as he had been involved in a serious car accident.
On 30 April 2024 at 2.25pm, Mr Ohan emailed my chambers a medical certificate from Dr Sutharsan Sivarajah to support this claim. The medical certificate outlined that Mr Ohan was taking narcotic medications which would impact his decision-making capacity and that therefore, he would be unfit for work and study from 30 April 2024 to 6 May 2024 inclusive.
On 30 April 2024 at 3.47pm, my chambers responded to Mr Ohan’s email outlining that the certificate did not preclude Mr Ohan from attending the Directions Hearing.
On 24 June 2024 at 9.16am, my chambers emailed the parties a Notice of Listing for a Case Management Hearing on the 26 June 2024. Later that morning, Mr Ohan responded to the email outlining he would not be able to attend due to his mental and physical ailments. In support of this claim, Mr Ohan provided a Certificate of Capacity from the Transport of Accident Commission.
On 24 June 2024 at 4.12pm, my chambers responded to Mr Ohan’s email and stated that the matter remained listed for trial on 1 – 3 July as set down in the orders I made on 24 October 2023. My chambers informed Mr Ohan that if he wanted to make an application for adjournment, he would need to file and serve an application in a proceeding, accompanied by an affidavit in support. My chambers also stated in this email that the court would proceed with the Case Management hearing on 26 June 2024 given the trial date was imminent.
On 25 June 2025, Mr Ohan replied to my Chamber’s email by attaching a letter from psychologist Dr Thomas Clifopolous dated 24 June 2024.
The Case Management hearing listed on 26 June 2024 occurred and Mr Ohan did not appear. I ordered for the Final Hearing, originally listed for 1-3 July 2025, be adjourned to the 29 January 2025. I also ordered for the orders made by Registrar Hird on 28 February 2024 to apply. Under these orders, each party was to file affidavit evidence and an outline of submissions and the Applicant was to file a Court Book after consultation with the Respondents.
On 12 November 2024, Mr Ohan emailed two documents to my chambers, namely:
(a)a letter from psychologist Dr Thomas Clifopolous dated 17 September 2024. This letter outlined that Mr Ohan had sustained multiple injuries following his involvement in a motor vehicle accident. The letter further stated Mr Ohan had undergone corrective surgery after a separate fall. The psychologist asserted that due to these incidents and Mr Ohan’s general agitation levels, Mr Ohan would struggle to represent himself in court; and
(b)a letter from Mr Nando Giovannuci, a Consultant Physiotherapist, dated 8 October 2024. This letter outlined that Mr Ohan was recovering from injuries and that he was totally incapacitated to attend Court.
On 13 November 2024, my chambers responded to Mr Ohan’s email, seeking an explanation for his email as it was not clear what he was seeking. My chambers directed Mr Ohan to make a formal application in a proceeding if he was seeking an adjournment. He was also informed that any application would have to be supported by an affidavit which explained the basis upon which he was seeking to adjourn the upcoming trial.
On 14 November 2024, the applicant filed an Application in a Proceeding seeking default judgment.
On 25 November 2024, Mr Ohan emailed chambers writing “Yes I will be soaking in a German”. I infer the email was a misinterpretation of a voice instruction Yes, I will be seeking an adjournment.
On 4 December 2024 at 4.41pm, Mr Ohan emailed my chambers stating “please find following request for adjournment”. The email attached an unsealed affidavit dated 4 December 2024.
On 4 December 2024 at 5.07pm, my chambers responded to Mr Ohan and noted that he had provided an unsealed affidavit. My chambers reminded Mr Ohan that he must file an application in a proceeding, supported by a sealed affidavit, with the Registry.
Mr Ohan responded that same day at 5.38pm stating the following:
“I’m not sure what you mean. I have provided all the information you that you asked for.
This not helping my mental health.
Please send me the form you want me to fill in.
I also don’t have access to the portal.”
On 5 December 2024 at 9.57am, my chambers responded to this email reiterating that if Mr Ohan was seeking an adjournment, he was required to make an application in a proceeding supported by an affidavit. Mr Ohan was referred to the Registry if he required assistance.
On 3 January 2025, Mr Ohan emailed my chambers stating that he was requesting an adjournment. No attachment was provided. On 7 January 2025, my chambers responded, re-iterating that an application for an adjournment must be made in the form of an application in a proceeding, supported by an affidavit. Again, Mr Ohan was referred to the Registry to seek assistance.
On 7 January 2025, Mr Ohan lodged his affidavit dated 4 December 2024. This was accepted for filing on the same day. The affidavit included medical certificates from the following practitioners:
(a)Dr Stanley Chiang (physician);
(b)Dr Thomas Clifopolous (psychologist);
(c)Mr Nando Giovannucci (physiotherapist); and
(d)Dr Sebastian Pavone (GP).
On 22 January 2025 at 8.45am, my chambers emailed the parties a Notice of Listing of the Final Hearing to remind them it was scheduled for the 29 January 2025 on an estimate of 3 days.
At 1.15pm that same day, Mr Ohan emailed the Court a copy of his sealed affidavit from 7 January 2025. On 23 January 2025 at 5.04pm, Mr Ohan once again emailed the Court a copy of his sealed 7 January 2025 affidavit.
On 24 January 2025 at 4:50pm, my chambers responded to Mr Ohan’s emails stating once again that a formal request for an adjournment had not been made. They explained that the final hearing listed on 29 January 2025 would proceed, and that if he wanted to adjourn the proceeding, he would have to attend Court. Later that day, Mr Ohan emailed my chambers writing that he believed he had forwarded all the correct information. He also stated that he has no funds for representation and is suffering from poor physical and mental health.
On 28 January 2025 at 7:20pm, Mr Ohan emailed my chambers and stated:
“In addition to my deteriorating health, I’m in fear of leaving the house, as I’m waiting for an intervention order lodged at Heidelberg magistrates Court, and corresponding police report filed at Doncaster Police.”
I accept that Mr Ohan currently encounters a number of physical and mental impairments. However, the precise extent of those is not clear to the Court. I note that a number of the medical certificates which have been sent to the Court and medical reports have been prepared for purposes quite unrelated to these proceedings. For example, there are medical reports prepared to support Mr Ohan’s application for taxi vouchers and various other purposes.
Significantly, Mr Ohan himself has not gone on affidavit to explain the effect of this medical evidence on his ability to participate in these proceedings. One of the issues for the Court, therefore, is to what extent can I rely upon the medical certificates and medical reports, in the absence of evidence from Mr Ohan himself, to form a view about his capacity to participate in proceedings.
The relevant principles about what constitutes sufficient medical evidence was discussed by Pepper J in UTSG Proprietary Limited v Sydney Metro [2019] NSWLEC 107. These principles are outlined as follows:
42. While each case turns on its facts, the medical evidence should, at a minimum, answer the central question of why – and not just whether – the medical condition will prevent a litigant from participating in a court hearing either in person or by some other means (for example, by telephone). It is this nexus that is critical.
43. To be sufficient, the medical evidence should identify in broad terms the medical condition that the person is suffering from, the symptoms of that condition insofar as they are relevant to a litigant’s participation in a court hearing, the severity of the condition, and its expected duration. The doctor providing the certificate must be clearly identified and the certificate must be signed and dated.
44. Absent this bare minimum the opposing party cannot, as a matter of fairness, test the cogency of the medical evidence and the Court does not have sufficient information before it to meaningfully exercise its discretion to grant the vacation sought. To the extent that the provision of an appropriately detailed medical certificate to the Court (and to the opposing party) results in a loss of privacy, this is the price that must be paid by a litigant in order for the Court to grant the indulgence of a vacation of hearing dates, a course that a Court does not undertake lightly having regard to the inevitable increased cost to the parties of the delay and the inefficient allocation of Court resources that results.
The medical evidence that has been supplied by Mr Ohan, confirms that he has various symptoms and confirms that those symptoms are currently the subject of various medical treatments and rehabilitation. But what the evidence does not satisfy me of, and what Mr Ohan has not deposed to, is exactly how and why he is unable to further engage in these proceedings and for how long.
A significant feature of the correspondence from Mr Ohan is that he is now seeking for this matter be adjourned again for “at least six months”. As Mr Murphy properly submitted, and is supported by authority in this regard, a court simply cannot adjourn matters indefinitely. There is no clear indication as to when Mr Ohan would be able to participate, indeed if ever.
I also take into account the extent to which Mr Ohan has participated in these proceedings in the past. As Mr Murphy indicated, Mr Ohan was from the commencement of the proceedings and for a period, represented by solicitors and counsel. For whatever reason, that ceased to be the case some time ago and Mr Ohan has been self-represented ever since.
Save for the filing of a defence to the initial statement of claim, Mr Ohan has, as far as I can see, not actively engaged in these proceedings, save for seeking to have the proceedings adjourned. Mr Ohan has not complied with a number of orders of the Court, including orders that he file a defence to the further amended statement of claim, that he file any evidence that he would seek to rely upon at the final hearing, and that he file outlines of submissions and the like.
The Court should also weigh the relative prejudice to the parties. It is often the case that a court will be minded to grant an adjournment if it is satisfied that the prejudice to the other party can be ameliorated by way of costs. The Court does not have any information before it about when the next Court event might be if an adjournment is granted, nor does it have any evidence before it regarding the capacity of Mr Ohan to meet the applicant’s costs of any adjournment.
This case is already very old. Witness evidence will only fade further over time, and in my view, the overall interests of justice will not be served by granting an adjournment. I accept that there is no formal application for an adjournment before me, but if there were, I would refuse it for the reasons I have just given.
I will hear the application for default judgment.
I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Ex-tempore Reasons for Judgment of Judge Forbes.
Associate:
Dated: 27 February 2025
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