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
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…
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- Case
- [2025] FedCFamC2G 166
- Decision Date
CaseChat Overview and Summary
The legal issue at the heart of this case was whether the respondent's unrepresented application for an adjournment, grounded in medical incapacity, should override the longstanding procedural history of the case and the court's case management principles. The court was required to determine whether the respondent's inability to participate in the proceedings justified an indefinite adjournment or whether the principles of just resolution of disputes, efficient use of court resources, and the importance of finality should prevail.
The court reasoned that while the respondent's medical conditions were acknowledged, the materials presented did not address the core issue of his ability to participate in the proceedings. The court emphasised the importance of case management considerations, referencing the High Court's decision in Aon Risk Services Australia Limited v Australian National University and subsequent legislative amendments. Given the prolonged nature of the proceedings, the substantial preparations made by the applicant, and the court's efforts to accommodate this matter within a busy schedule, the court was inclined to refuse the adjournment. Ultimately, the court granted leave for the applicant to proceed with its application for a default judgment.
In conclusion, the court determined that the principles of case management and the need for the efficient resolution of disputes outweighed the respondent's unrepresented and informal application for an adjournment. The court's decision was influenced by the protracted nature of the proceedings, the applicant's significant preparations, and the court's efforts to accommodate the matter. The final order was to grant leave to the applicant to proceed with its application for a default judgment.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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.