FEDERAL COURT OF AUSTRALIA

Salfinger v Napiat Pty Ltd [2012] FCAFC 77

THE COURT ORDERS THAT:

1.    the appeal be dismissed;

2.    the appellant pay the respondent’s costs of the appeal to be assessed on an indemnity basis; and

3.    the documents received by the Registry from the appellant on 24 May 2012 not be accepted for filing in the Registry. The said documents be placed in an envelope and not be opened without the leave of the Court or a Judge.

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

REASONS FOR JUDGMENT

1    The Registry of the Court received a bundle of documents yesterday evening from the appellant. The Court has considered those documents. We would not entertain an ex parte application for an adjournment of the hearing of the appeal. Furthermore, we see no reason to adjourn the hearing of the appeal to allow service of the application.

2    In any event, the Court does not think the documents should be accepted for filing under the Federal Court Rules 2011 (“the Rules”) and we direct the Registry not to accept them under Rule 2.27. We direct that the documents be placed in an envelope and not be opened without the leave of the Court or a Judge.

3    As to the appeal itself, it should be dismissed on two grounds either of which supports an order of dismissal. First, it should be dismissed under s 56(4) of the Federal Court of Australia Act 1976 (Cth) (“the Act”) on the ground that the appellant has failed to comply with the order made on 19 March 2012 requiring him to provide security for costs: Salfinger v Napiat Pty Ltd [2012] FCA 247; Salfinger v Napiat Pty Ltd (No 2) [2012] FCA 435. Secondly, the appeal should be dismissed on the basis of the appellant’s failure to prosecute the appeal (see s 25(2B)(ba) of the Act) and to comply with a direction of the Court (see s 25(2B)(bb)(i) of the Act) and to appear today (see Rule 36.75 of the Rules).

4    We are aware that the appellant contacted the Registry this morning by telephone. He was advised that it was the Court’s decision as to whether he would be contacted by telephone. The Court sees no reason to contact the appellant. It is his obligation to appear at the hearing of the appeal. He has failed to do so. The appellant has also asked the Court to stand the appeal down for approximately 30 minutes, but we see no reason to delay resolution of this matter. At approximately 10.30 am this morning, the appellant applied for leave to appear by telephone. We refuse the application. The appellant has had ample opportunity to make such an application. Fifteen minutes after the appeal was listed for hearing is too late for such an application.

5    The Court makes an order that the costs be assessed on an indemnity basis on the grounds outlined by Mr Cheshire in his submissions to the Court.

6    We will make the following orders:

1.    the appeal be dismissed;

2.    the appellant pay the respondent’s costs of the appeal to be assessed on an indemnity basis; and

3.    the documents received by the Registry from the appellant on 24 May 2012 not be accepted for filing in the Registry. The said documents be placed in an envelope and not be opened without the leave of the Court or a Judge.

Associate:

Dated:    25 May 2012