REASONS FOR JUDGMENT

COWDROY J:

1                     On 27 January 2010 an appeal was filed by the appellants, David John Wade (‘Mr Wade’), Georgina Wade (‘Mrs Wade’), Bade Medical Institute (Aust.) Pty Limited (‘Bade’) and World Wide Internet Services (Aust.) Pty Limited (‘World Wide Internet’) from the judgment delivered on 4 December 2009 in AMI Australia Holdings Pty Ltd (ACN 095 238 645) and Another v Bade Medical Institute (Australia) Pty Ltd (ACN 119 950 739) (No.2) (2009) 84 IPR 19.

2                     The Notice of Appeal nominates AMI Australia Holdings Pty Limited (‘AMI’), Advanced Medical Institute Pty Limited (‘Advanced Medical’) and Dr Buddy Paul Beaini (‘Dr Beaini’) as the respondents to the appeal. The Court notes that Dr Beaini was also named as a respondent in the proceeding before the primary judge.

3                     Although the Notice of Appeal nominates Bade and World Wide Internet as the third and fourth appellants, the Court notes that such companies had apparently been deregistered prior to the appeal being lodged. The Court has been informed that such companies were at all times under the control of Mr Wade, Mrs Wade and/or Dr Beaini. Further, no orders were sought against those appellants before the primary judge nor were any made against them. The Notice of Appeal was not executed on their behalf. The Court is satisfied that Bade and World Wide Internet are not competent appellants and accordingly the Court will proceed only to deal with the appeal in relation to Mr and Mrs Wade.

Grounds of Appeal

4                     The appeal relates primarily to the conduct of the proceedings before the primary judge. The Notice of Appeal contains four grounds of review, namely:

1.    Mr. Wade; Unfit to give evidence.

·       Mr. Wades testimony was the basis for the defendants case.

·       Mr. Wade was ill at the commencement of the trial and progressively became worse.

·       Due to this Mr. Wade asked the court on many occasions for an adjournment, and produced medical certificates to support his claim.

·       Mr. Wade was not given the appropriate adjournment that he required and was made to testify on his and the companies behalf.

·       Mr. Wade was also penalised in the judgment with interest, due to the adjournments required.

·       Mr. Wade was diagnosed with Aggressive T-cell Lymphoma.

·       At the time he was made to give evidence he was in severe pain, His body had swollen to three times its size with fluid, he could not walk without assistance, he could not sit for a long period of time, his body was covered in painful welts and he was highly medicated on Endone (Morphine). Mr. Wade also underwent 6 courses of Chemotherapy to try and fight the cancer throughout the trial.

·       Mr. Wade has no personal recollection of what he said on the stand, nor if he was able to put forward his case. He was unrepresented and therefore was not given a fair trial.

2.    Evidence not taken into account

·       Mr. Wades case fell on the grounds that he only used names that he had registered with the appropriate government bodies of NSW.

·       This evidence has not been taken into account, leading Mr. Wade to assume that he was unable to tender his evidence properly, due to his inexperience in the court room, and the severity of his illness.

·       Mr. Wade would like to be given the chance to explain his versions of events while he is lucid.

3.    All defendants have been affected by the treatment of Mr. Wade, as they relied heavily on his testimony.

4.    Georgina Wade also produced medical certificates, and her Dr addressed the court via telephone. Mrs. Wade was also made to give evidence, whilst medicated and deemed medically unfit by her doctor.

5                     On the filing of the appeal, the matter was listed for call-over on 3 February 2010 at 9:30 am and the settlement of the appeal papers was to occur before the Registrar at 9:30 am on Tuesday 3 March 2010.

Cross-Appeal

6                     On 29 January 2010 a document entitled ‘Notice of Cross Appeal’ was filed by Dr Beaini against AMI, Advanced Medical, Mr Wade and Mrs Wade. The grounds of cross-appeal are as follows:

The major person on whom the case was/is based on (Mr David Wade) was medically and psychologically unfit to give evidence. And my case was entirely dependant on Mr David Wades case.

Mr David Wade suffers from carcinoid carcinoma and T cell lymphoma cancer and was undergoing hospitalisation & drug treatment (eg morphine) during court.

7                     The appeal and cross-appeal seek orders that the decision of the primary judge be set aside and/or the case be heard again. As there have been significant problems and delays in the prosecution of the appeal and of the cross-appeal before the Court, it is necessary to record the chronology of events that have occurred prior to judgment and the Court will do so below.

Call-over: 3 February 2010 and Registrar’s Conference: 3 March 2010

8                     On 3 February 2010 a call-over before Moore J took place and the appeal was fixed for hearing before the Full Court on 13 May 2010. On 3 March 2010 the parties appeared before Registrar Morgan for settlement of the appeal papers. At such conference a draft Appeal Index produced by the Federal Court Registrar was distributed to the parties.

9                     The Court notes that, from the outset, the Registrar had apparently experienced some difficulty in settling the Appeal Index between the parties. The settlement conference was accordingly adjourned until 8 April 2010.

Registrar’s Conference: 8 April 2010

10                  On 8 April 2010 the matter came before Registrar Morgan. There was no appearance by the appellants or Dr Beaini. The matter was adjourned until 13 April 2010.

Registrar’s Conference: 13 April 2010

11                  On 11 April 2010, Mr Wade informed the Court that he would be unable to attend the settlement conference fixed for 13 April 2010. On 13 April 2010 Dr Beaini and a representative for the first and second Respondents appeared before Registrar Morgan for the purposes of settling the Appeal Index. Neither Mr Wade nor Mrs Wade appeared. Registrar Morgan made orders to the following effect:

1.    The settlement of the Appeal Index is further adjourned until 21 April 2010.

2.    Any further requests for adjournment be accompanied by an explanatory affidavit.

3.    The Appellants provide a Draft Index by 19 April 2010.

4.    Costs thrown away by the respondent by attending today’s conference be reserved.

Application for Adjournment of Full Court Hearing

12                  On 19 April 2010 a Notice of Motion was filed by Mrs Wade seeking an adjournment until 25 July 2010 of the hearing of the appeal before the Full Court which had been fixed for 13 May 2010. Such motion was accompanied by an affidavit of Mrs Wade which stated that ‘the main party/witness/person of knowledge of activities is unavailable due to life threatening illness’.

13                  Mr Wade also filed a Notice of Motion on 19 April 2010 seeking the same relief. Such Notice of Motion was accompanied by an affidavit explaining further details of Mr Wade’s illness, identifying a ‘Dr Doods’ (Dodds) as his treating physician at St. Vincent’s Hospital and attaching a ‘Patient Information Sheet’.

14                  On 21 April 2010 the matter was again listed before Registrar Morgan for the settlement of the Appeal Index. Mr Gambell, a friend of Mr and Mrs Wade, appeared on behalf of Mrs Wade and the first and second respondents also attended by their solicitor. Dr Beaini made no appearance. The settlement conference was further adjourned until 5 May 2010.

Motion for Adjournment Hearing: 29 April 2010

15                  On 29 April 2010, the Notices of Motion dated 19 April 2010 filed by Mr and Mrs Wade seeking an adjournment of the hearing of their appeal came before Cowdroy J for hearing. On 28 April 2010 Mr and Mrs Wade notified the Court that they would be unable to attend the hearing of their motions and provided some medical documentation in support of their claim. At the hearing a representative of the first and second respondent provided the Court with details of the progress of the matter. Cowdroy J then made the following orders:

1.    The Full Court hearing fixed for 13 May 2010 be vacated.

2.    Unless the Appeal Indices are settled and other necessary preparation is undertaken by 24 June 2010, the Respondents be at liberty to file a Notice of Motion to strike out the appeal for want of prosecution pursuant to O 52 r 38 of the Federal Court Rules.

3.    If the Appeal Indices are settled and other necessary preparation is undertaken by 24 June 2010, the matter be listed for hearing in the August Full Court sittings.

4.    If the Appeal Indices are settled and other necessary preparation is undertaken by 24 June 2010, the matter be listed for hearing in the next Full Court sitting period commencing in August 2010.

5.    Costs of this application be reserved.

6.    Both motions be otherwise adjourned until 5 July 2010.

Registrar’s Conference: 10 June 2010

16                  On 10 June 2010 the matter was again listed before Registrar Morgan. Dr Beaini and a representative of the first and second respondents appeared. Mr Wade forwarded notification to the Court that he would not be attending. Such notification was sent after the conclusion of the conference. Registrar Morgan made orders that the draft Appeal Index was to be filed by the appellants before 21 June 2010. The settlement conference was adjourned until 23 June 2010.

17                  On 21 June 2010 a draft Appeal Index was filed by the appellants in accordance with the Registrar’s orders.

Registrar’s Conference: 23 June 2010

18                  On 23 June 2010 the proceedings again came before Registrar Morgan. Mrs Wade appeared with the assistance of a friend, Mr Begley. Dr Beaini and a representative of the first and second respondents also appeared. At such conference the draft Appeal Index was settled and orders were made inter alia that:

1.    The appellants file and serve an amended appeal index on or before 30 June 2010.

2.    The Appellants have permission to copy and inspect Court documents to prepare the amended index and appeal books by 30 July 2010.

3.    Appeal Books A B C to be filed and served before 30 July 2010.

4.    The matter be listed for hearing on 24 August 2010 at 10:15 am for up to one day.

Failure to Comply with the Registrar’s Orders of 23 June 2010

19                  The appellants did not file and serve an amended appeal index and appeal books on or before 30 June 2010, as required by the Registrar’s order. Accordingly the first and second respondents approached the Court for a directions hearing and on 5 July 2010 the matter came before Cowdroy J for directions.

Directions Hearing: 5 July 2010

20                  On 29 June 2010 both Mr and Mrs Wade had forwarded medical certificates to the Court seeking leave to be excused from the directions hearing listed for 5 July 2010. Mr Wade had provided a medical certificate dated 30 July 2009, some 11 months out of date. Mrs Wade provided a medical certificate purporting to excuse her from Court on 30 June 2010 (a date that had already passed), for reasons of ‘Severe Stress and Anxiety’. The Court declined to accept either certificate as adequate to excuse the appellants from appearing. At the directions hearing on 5 July 2010 the first and second respondents appeared. There was no appearance by Mr Wade, Mrs Wade or Dr Beaini.

21                  At the conclusion of the directions hearing the following order was made:

Unless the Appellants comply with all the conditions attaching to the orders made by Registrar Morgan on 23 June 2010 by 4.00 pm on 5 August 2010, the Respondent be at liberty to file a Notice of Motion to strike out the appeal for want of prosecution.

22                  By 5 August 2010 there had been no compliance with the orders of Registrar Morgan made 23 June 2010.

Full Court Hearing: 24 August 2010

23                  On 24 August 2010 the appeal came before the Full Court. There was no appearance by the first and second appellants, nor by the cross-appellant. Mr Green, counsel for the first and second respondents, informed the Court that he had been told that a trustee had been appointed to Mrs Wade’s estate under the provisions of the Bankruptcy Act 1966 (Cth) (‘the Bankruptcy Act’).

24                  Mr Vincent Chan from the office of Michael Jones, Trustee in Bankruptcy of the estate of Mrs Wade, then appeared and informed the Court that the second appellant had been declared a bankrupt on 20 May 2010. However, Mr Chan told the Court that Mr Jones, as Trustee, had as yet made no election under s 60(2) of the Bankruptcy Act to prosecute or discontinue the appeal. The Court was informed at the hearing that Mr Jones was the second trustee in bankruptcy to be appointed to the second appellant’s estate and that he had only recently become aware of the proceedings. At the time of the hearing the 28 day period prescribed by s 60(3) of the Bankruptcy Act had not expired.

25                  After a short adjournment Mr Chan informed the Court that Mr Jones would not be prosecuting the appeal and that an election in writing would be provided to the Court as required by s 60(2) of the Bankruptcy Act.

26                  Mr Green, counsel for the first and second respondents, informed the Court that the cross-appellant, Dr Beaini, wished to take no further part in the appeal. Mr Green’s instructing solicitor, Mr Peter Raymond Hudson then testified to a conversation with Dr Beaini to this effect which had occurred on the preceding day.

27                  Mr Wade, the remaining appellant, did not appear at the hearing and no further communication has been received in relation to the appeal.

28                  At the conclusion of the hearing the Court made the following orders:

1.    Leave be granted to the Trustee in Bankruptcy of the estate of the Second Appellant to discontinue their appeal.

2.    Leave be granted to the First and Second Respondents to file a motion that the appeal be dismissed for want of prosecution pursuant to O 52 r 38 of the Federal Court Rules (Cth).

3.    The motion referred to in the above order be made returnable before Cowdroy J on 10 September 2010 at 9:30 am.

Subsequent events

29                  On 25 August 2010 Mr Jones, Trustee in Bankruptcy of the estate of Mrs Wade, filed an appearance annexing a Certificate of Appointment of Trustee and a Notice of Discontinuance on behalf of the second appellant’s bankrupt estate.

30                  Although they had been granted leave to do so, the first and second respondents did not file a notice of motion seeking orders pursuant to O 58 r 38 as provided by Order 2 of the Full Court’s orders.

31                  On 8 September 2010 the Registrar of the Court wrote to the first appellant and to the cross-appellant notifying them that the Court proposed to dismiss the appeal and cross-appeal for want of prosecution pursuant to O 52 r 38 of the Federal Court Rules (Cth)(‘the Court Rules’)at a hearing fixed for 10.15 am on 17 September 2010.

32                  On 16 September 2010 Dr Beaini filed a Notice of Discontinuance of his cross-appeal. On the same day, the first and second respondents filed an affidavit of Mr Peter Raymond Hudson sworn 8 September 2010 which provided to the Court a chronology of events in the proceedings. The affidavit also revealed that the first and second respondent had forwarded a letter to Mr Wade and Dr Beaini after the Full Court hearing. Such letter dated 31 August 2010 informed the remaining appellant and cross-appellant that on 10 September 2010 ‘the Court may order that the appeal shall be dismissed for want of prosecution pursuant to Order 52 Rule 38 of the Federal Court Rules (Cth)’.

33                  In the result, only the appeal so far as it concerned the first respondent remained for attention.

Hearing 17 September 2010

34                  A single judge may order that an appeal be dismissed for want of prosecution (see s 25(2B)(ba) Federal Court of Australia Act 1976 (Cth) (‘the Court Act’).

35                  There was no appearance by the first appellant on 17 September 2010. Accordingly, and in the light of the history set out above, the Court ordered that the appeal be dismissed for want of prosecution. The Court makes the following observations.

36                  The Court notes that the medical evidence provided to the Court shows that Mr Wade continues to suffer from a terminal illness. The primary judge was also aware of Mr Wade’s condition, as is evident from the transcript. During the primary hearing, adjournments were applied for and granted because of Mr Wade’s condition.

37                  The personal difficulties of the first appellant in prosecuting the appeal, and the status of the first (and second) appellant(s) as litigants-in-person, must be balanced with the first and second respondents’ interests arising from orders made by a single judge of this Court in their favour. No appeal books have been finalised, filed or served, nor was any application made for the adjournment of the Full Court hearing on 24 August 2010. There has neither been any response to the Registrar’s notification of the dismissal of the proceedings under O 52 r 38 of the Court Rules.

38                  The Court finds that the first appellant has not complied with the Court’s directions and otherwise has failed to be diligent in the prosecution of the appeal.

39                  The Court has power to strike out the appeal for want of prosecution under O 52 r 38 of the Court Rules. The Court was satisfied that the requirements of that rule were satisfied and accordingly, in the exercise of the power provided by s 25(2B)(ba) of the Court Act, the Court ordered that, pursuant to O 52 r 38(1)(a) of the Court Rules, the proceedings be dismissed for want of prosecution.

Associate:

Dated:         24 September 2010