FEDERAL COURT OF AUSTRALIA

Goldie v The Commonwealth of Australia [2004] FCA 973

BRIAN GERALD JAMES GOLDIE v THE COMMONWEALTH OF AUSTRALIA

W61 of 2004

CARR J

23 JULY 2004

PERTH

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The appellant pay the first and second respondents’ costs of the appeal and the motion and the costs (if any) of the other respondents to the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This is a motion on notice by the first and second respondents for an order that the appeal in this matter be dismissed with costs for want of prosecution.

2                     Alternatively the first and second respondents seek orders that the appellant provide security in the sum of $5,000 for their costs of the appeal, and that the appeal be dismissed with costs in the event that such security is not provided by the appellant within 14 days.

3                     The power of a single judge to make an order that an appeal be dismissed for want of prosecution is conferred by s 25(2B)(ba) of the Federal Court of Australia Act 1976 (Cth) when read with order 52 rule 38(1) of the Federal Court Rules. 

4                     The power to order an appellant to give security for payment of costs is conferred by s 56(1) of the Federal Court Act.  Order 52 rule 20 of the Federal Court Rules provides that unless the Court or a Judge otherwise directs no security for costs of an appeal to the Court shall be required. 

factual and procedural background

5                     This recitation of the factual and procedural background is taken from the written outline of submissions of the first and second respondents.

6                     The appellant is a non-citizen who entered Australia on 4 December 1992.  He remained in Australia and, on 24 February 1998 he was taken into immigration detention in the mistaken belief that he did not hold a valid visa.  The appellant had in fact held a valid Bridging Visa at the time of his detention.  He was subsequently granted a Bridging E Visa  and released from detention on 27 February 1998 (i.e. 3 days later). 

7                     The appellant subsequently commenced proceedings in this Court claiming damages and a variety of other relief against the first and second respondents and the various officers of the Department of Immigration and Multicultural and Indigenous Affairs listed above as the third to ninth respondents.  On 22 December 2000, French J dismissed that application: Goldie v The Commonwealth (2000) 180 ALR 609.  The appellant appealed against that order.  On 12 April 2002, a Full Court of this Court, by a majority (Gray and Lee JJ, Stone J dissenting) allowed that appeal in part: Goldie v The Commonwealth (2002) 117 FCR 566 and remitted the matter to French J for assessment of damages in respect of the appellant’s wrongful arrest on 24 February 1998 and his subsequent unlawful detention until 27 February 1998. 

8                     French J made directions for the filing of further affidavits.  He granted leave to the appellant to file and serve any further affidavits on or before 15 November 2002.  By consent, the date for the appellant to file any further affidavit evidence in those proceedings was extended to 15 April 2003.  On 18 August 2003 the appellant applied to have the hearing of the assessment of damages adjourned to enable an application for a more general stay to be made.  That application was dismissed by French J on the same date. 

9                     The hearing of the assessment of damages took place on 1 September 2003.  A further application by the appellant for an adjournment of the hearing was refused by French J.

10                  On 27 February 2004 French J delivered judgment on the assessment of damages.  He ordered that the first, second and sixth respondents pay the appellant damages for wrongful arrest and imprisonment in the sum of $22,000. 

11                  The appellant has sued the second respondent and others in various proceedings (at least eight applications) in the High Court of Australia and in this Court.  As a result of those proceedings the appellant is presently indebted to the second respondent in the sum of $63,775.80 pursuant to certificates of taxation for costs in those various proceedings.  That is, after taking into account the award of damages of $22,000, the appellant remains liable to pay to the second respondent the sum of $41,775.80.  The uncontradicted evidence before me is that, despite demand for payment, the appellant has failed to pay or make any proposal to pay any part of those costs. 

12                  On 19 March 2004 the appellant filed a notice of appeal from French J’s judgment of the 27 February 2004.  In that notice he stated his address to be “High Myers, Carrot Farm, Eaglesham, By Glasgow, Scotland” and his local address for service as being C/O Anne Payne, 31 Solar Street, Beckenham, Perth, Western Australia 6107. 

13                  Order 52 rule 26 provides that before the date appointed for settling appeal papers an appellant must prepare and file a draft index of those papers and a list of all documents received in evidence and proposed to be reproduced in the appeal papers.  An appellant must also serve the draft index and list on the respondent or respondents to an appeal a reasonable time before the appointment to settle the appeal papers.

14                  The uncontradicted evidence in this motion also shows that since the filing of his notice of appeal, the appellant has failed to attend Court appointments or to cause anyone to attend on his behalf or to cause the matter to be prosecuted as required by the Federal Court Rules and the Court itself.  The details are as follows:  

1.         He failed to serve copies of the notice of appeal on the respondents.

2.         He failed to file and serve a draft index of the appeal papers for an appointment to settle the appeal papers listed for 14 April 2004.

3.         On 14 April 2004 he failed to attend the appointment to settle the appeal papers.

4.         On 28 April 2004 he failed to attend the call-over of appeals (including the call-over of this appeal) before Lee J.

5.         He failed to file and serve a draft index of the appeal papers for a further appointment listed for 26 May 2004.

6.         He failed to prepare a draft index of the appeal papers for a further appointment listed for 4 June 2004.

7.         On 4 June 2004 he failed to attend the appointment to settle the index of appeal papers.

8.         He failed to file and serve a draft index of appeal papers for a further appointment listed for 17 June 2004.

9.         On 17 June 2004 he failed to attend the further appointment to settle the index of appeal papers.

15                  I have examined the Court file.  It shows that on 31 May 2004 the District Registrar wrote to the appellant at his address for service informing him that the appeal has been listed for hearing on 10 August 2004 at 2.15 pm.  In those circumstances the appellant was obliged, by Regulation 2AA of the Federal Court of Australia Regulations, to pay the setting down fee of $1,148.00.  He confirmed this morning that he had not paid that fee or applied for any waiver of payment. 

my reasoning

16                  The authorities show that the power to dismiss appeals for want of prosecution must not be lightly exercised: Van Reesema v Giameos (1979) 27 ALR 525 at 530; Kellar v Australian Postal Corporation (unreported 3 March 1997), both of which are decisions of Full Courts of this Court.

17                  On 25 June 2004 I fixed the hearing of this motion for this morning.  On the same date I made orders for interlocutory steps to be taken within the motion.  The first of those orders was that the appellant could file and serve any affidavits in opposition to the motion within ten days of service of the notice of motion and the first affidavit filed in support of it. The evidence shows that service of those documents was effected on 28 June 2004.  There were also orders providing a timetable for the filing of written submissions.  The first and second respondents have filed an affidavit evidencing compliance with the interlocutory orders in relation to service and the like.  They have also filed an outline of submissions.  The appellant has not filed any affidavits or an outline of submissions.  There is evidence that eight days ago the appellant told a solicitor in Perth (whom he had approached to consider acting for him) that he (the appellant) would “handle the matter for the time being” and attend the hearing today by telephone. 

18                  The appellant did not communicate with the Court to apply for leave to appear by telephone or to make any such arrangements until about one hour before the motion was called on for hearing this morning.  An arrangement was made for him to telephone the in-Court telephone number.  He did so and was granted leave to appear at the motion by telephone from the United Kingdom.  He said that he has attempted to instruct counsel, that he was in the United Kingdom and was unable to travel to Australia.  He also said, “In the last week or two” he had sent the appeal papers to a lawyer in Perth.  He asked for the decision in this motion to be deferred for a week or two.  I am not prepared to accede to that request because in my view, the appellant has been given more than sufficient notice (a) of the requirements that he has to meet in relation to the appeal, and (b) that this motion was going to be heard today.

19                  The appellant has not filed or served any affidavit to explain his failure to prosecute the appeal. 

20                  There is evidence that the appellant is currently overseas and has recently been in Laos and Thailand.  But absence overseas is not a sufficient excuse – see, for example, Van Reesema at 531. 

21                  I take into account the history of the appellant’s neglect to prosecute the appeal to date and the absence of any evidence suggesting that he is likely to comply in the near future.

22                  Another relevant factor is the strength of otherwise of the grounds advanced in the appeal. 

23                  I have read the judgment at first instance and I have read the notice of appeal.

24                  It is difficult to assess, on the basis of those papers alone, whether the grounds of appeal are reasonably arguable.  My assessment is that although they may be reasonably arguable, the appellant’s case is a weak one. 

25                  In all the circumstances, particularly the appellant’s non-compliance with the procedural requirements for an appeal to be prosecuted, I consider that the appeal should be dismissed with costs for want of prosecution.  In those circumstances, there is no need to consider the alternative relief sought in the motion. 

Associate:

Dated:                27 July 2004