Federal Circuit and Family Court of Australia
(DIVISION 2)
Walker v Fedex Express Australia Pty Ltd (No 2) [2023] FedCFamC2G 160
File number(s): MLG 303 of 2021 Judgment of: JUDGE SYMONS Date of judgment: 3 March 2023 Catchwords: PRACTICE AND PROCEDURE – Application for dismissal of applicant’s application – where applicant abandoned proceedings – whether proceedings should be dismissed for the applicant’s want of prosecution and/or failure to comply with an order of the Court – applicant unprepared for final hearing – failure to prosecute proceeding with due diligence – case management principles – efficient use of judicial and administrative resources – order made that the proceeding be summarily dismissed Legislation: Fair Work Act 2009 (Cth) s 570
Federal Circuit and Federal Court of Australia Act 2021 (Cth) ss 190, 192,
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.04, 13.05, 13.06
Cases cited: Aon Risk Services Ltd v Australian National University (2009) 239 CLR 175;[2009] HCA 27
Lenijamar Pty Ltd v ACC (Advances) Ltd (1990) 98 ALR 200
Professional Administration Service Centres Pty Ltd v Commissioner for Taxation (2013) 295 ALR 52; [2012] FCAFC 180
Walker v Fedex Express Australia Pty Ltd [2023] FedCFamC2G 56
Division: Division 2 General Federal Law Number of paragraphs: 36 Date of last submission/s: 1 February 2023 Date of hearing: On the papers Place: Melbourne Applicant: In person Solicitor Respondent: In House Counsel Counsel for the Respondent: Mr J McDougall ORDERS
MLG 303 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: PETER ADRIAN WALKER
Applicant
AND: FEDEX EXPRESS AUSTRALIA PTY LTD
Respondent
order made by:
JUDGE SYMONS
DATE OF ORDER:
3 March 2023
THE COURT ORDERS THAT:
1.Pursuant to r 13.05(1)(a) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), proceeding MLG303/2021 be dismissed.
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).
REASONS FOR JUDGMENT
JUDGE SYMONS:
INTRODUCTION
This judgment concerns an application made by the respondent, Fedex Express Australia Pty Ltd (Fedex) seeking orders that the proceeding commenced by the applicant, Mr Walker, be brought to an end summarily as a result of Mr Walker’s default; characterised as both a failure to comply with an order of the Court and a failure to prosecute the proceeding with due diligence.
CONTEXT OF THE APPLICATION
The unusual circumstances in which Fedex’s application is made involve, primarily, the action taken by Mr Walker to walk out of the…
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- Case
- [2023] FedCFamC2G 160
- Decision Date
CaseChat Overview and Summary
The legal issues that the court was required to address involved the application of the discretionary powers of the court under the rules governing the proceedings. Specifically, the court had to determine whether the plaintiff's breaches of court orders warranted the summary dismissal of his case. The court considered the nature and extent of the breaches, the plaintiff's reasons for non-compliance, and the potential consequences for both parties if the case were to continue. It was also necessary to assess whether there was any genuine intention on the part of the plaintiff to proceed with the case within a reasonable time frame.
The court's reasoning was grounded in the principles outlined in the case of Professional Administration Service Centres Pty Ltd v Commissioner for Taxation, which provided a non-exhaustive list of factors relevant to the exercise of the court's discretion. The court found that despite the plaintiff's arguments about health challenges, his actions and statements indicated a lack of intent to prosecute the case. The court was concerned that any further adjournment would lead to additional delays and prejudice to the defendant. The court concluded that the plaintiff's repeated non-compliance, combined with his unwillingness to adhere to the court's parameters, justified the exercise of the court's discretion to dismiss the case summarily.
The final orders of the court were that the plaintiff's application be dismissed with costs. This decision underscored the importance of strict adherence to court-imposed deadlines and the consequences of non-compliance, particularly when it appears that the plaintiff has no intention of pursuing the case in a timely manner. The court's decision also highlighted the need for plaintiffs to be prepared and diligent in managing their litigation, ensuring that they are ready to proceed to trial within the time frames set by the court.
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
In Professional Administration Service Centres Pty Ltd v Commissioner for Taxation (2013) 295 ALR 52 at [44] the Full Court of the Federal Court identified a number of non-exhaustive matters that were likely to be relevant to the exercise of the discretion which can be summarised as follows:·The nature of the default involved;·The duration of the default and whether it is continuing;·The circumstances surrounding the making of the order subsequently breached and the practices of the court concerned;·What has happened since the default, particularly whether an attempt has been made to rectify the breach;·Whether the breach creates prejudice or places an unacceptable burden on the other party;·Whether the applicant genuinely wishes the matter to go to trial within a reasonable period;·The stage the proceedings have reached;·Disruption to possible trial dates; ·The consequences to the applicant of dismissing the proceeding.CONSIDERATION While this is not a case characterised by a history of non-compliance on the part of Mr Walker and the catalyst for the respondent’s application was a sequence of events that took place over a relatively short period of time, including when assessed against the history of the proceeding, I nonetheless consider it appropriate that the proceeding be summarily dismissed. It is obvious that through his words and his actions taken on 30 January 2023, Mr Walker was communicating in the plainest of terms that he had no intention then, or indeed at any time in the ascertainable future, of prosecuting his case against the respondent. Although it is true that Mr Walker had sought an adjournment that ostensibly would have provided him with further time to make preparations for his conduct of the proceeding, it is also the case that the adjournment was refused for reasons that included a concern that further time would not have assisted the applicant. I am also cognisant that the reasons offered for Mr Walker’s decision to “concede” the application – which comprehended physical and mental health challenges – were different from those previously (but very recently) offered and unsupported by any evidence. They reinforce rather than detract from my impression that Mr Walker’s disinclination and lack of preparedness to confront the reality of his application represents more than a temporary state of affairs. In this respect, it is apt to conceptualise Mr Walker’s attitude to the proceeding as continuing in nature. Allied to these concerns is the indication from Mr Walker, in the exchange reproduced at [6] above, that he would be unwilling to accept that parameters might reasonably be placed around his case, including the number of witnesses that he might be entitled to call. I consider that these matters coalesce to make it almost inevitable that any further opportunity that might be provided to Mr Walker to prosecute his application (acknowledging that this is not something that he presently seeks) would be productive of further delay, loss of Court time and involve prejudice to the respondent and those who would be involved in the defence of Mr Walker’s case against it.