FEDERAL COURT OF AUSTRALIA

Chonka v Palmer [2004] FCA 1560

MICHAEL CHONKA V MICHAEL JOHN PALMER AND ORS

N 546 OF 1998

STONE J

30 NOVEMBER 2004

SYDNEY

THE COURT ORDERS THAT:

1. The motion of the second and fourth respondents contained in the amended notice of motion filed on 15 September 2004 be allowed.
2. The application be dismissed.
3. The applicant pay the respondents’ costs.

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

REASONS FOR JUDGMENT

introduction

1                     This applicant commenced this proceeding by filing an application and supporting affidavit on 5 June 1998.  It concerns the circumstances in which two warrants were issued under the Telecommunications (Interception) Act 1979 (Cth) (‘Interception Act’).  Pursuant to those warrants, telephone interception evidence was obtained against the applicant for use in criminal proceedings.  The applicant seeks declarations that the warrants, and any tracing, interception, recording and transcribing of telephone conversations arising from the warrants, are illegal and invalid.  He also seeks orders that the warrants be set aside, that the first, second, fourth and fifth respondents be restrained from using any of the information obtained pursuant to the warrants and that the second and fourth respondents pay the applicant damages of $250,000 for the invasion of his privacy constituted by the tracing and interception. 

2                     By an amended notice of motion filed on 15 September 2004 the second and fourth respondents now move the Court for orders that this proceeding be summarily dismissed.  That notice of motion refers to Orders 10, 11 and 20 of the Federal Court Rules.  The powers of the Court previously exercised in the case of default under O 10 r 7 and O 11 r 23 are now authorised by O 35A and, insofar as the respondents rely on the applicant’s default, I will consider their claims for relief under O 35A.  The respondents also rely on O 20 r 2 pursuant to which the Court may dismiss a claim where no reasonable cause of action is disclosed, or the proceeding is frivolous, vexatious or an abuse of process. 

3                     The matter has a long and complex factual and procedural background, some understanding of which is necessary to understand the basis of the orders I make today.  I will therefore briefly summarise that history. 

procedural and factual background

4                     The history of the initiation of the present proceeding is conveniently set out in Burchett J’s reasons for decision in an earlier judgment in this matter: Chonka v Palmer (1999) 92 FCR 303 at 304-5: 

‘During the course of the criminal proceedings, and as a result of a contested ruling by a magistrate in respect of a subpoena to produce documents, Mr Chonka’s solicitor came into possession of some material relating to the applications for the warrants.  Mr Chonka alleges that this material reveals defects in those applications, and, more particularly, that the Detective Senior Constable who provided evidence in relation to them acted in bad faith.  The proceeding in this Court was then initiated very promptly on 5 June 1998.  Although Mr Chonka acted promptly at that stage, the subsequent conduct of the matter proceeded in a quite leisurely fashion.  It was not until 25 September 1998 that the further amended application which is now pursued was filed.  …  It sets out, as grounds, allegations that “preconditions for issue of the warrants … did not exist at the time of the application”; that there were alleged deficiencies, alleged to have been “apparent before the third respondent” (the judge who issued the warrant); that the police officer in question, the fourth respondent, “in the affidavit which supported the application … deliberately misled the third respondent and misrepresented ‘dangers’ to ‘victims’ of the applicant”; that s 60 of the Act was not complied with; that the “warrants were obtained, as is apparent from the affidavit, for an ulterior, collateral and therefore unlawful purpose (of obtaining assistance in the detection of any future harassing and offensive telephone calls)”; that the last mentioned “unlawful purpose … was apparent on the face of the application (including the affidavit) to the third respondent”; and that statutory requirements had not been complied with in the identification of the telephone services the subject of the warrants.  The relief sought was the making of declaratory orders that the warrants were illegal and invalid, and that various steps taken in the investigation of the matter were also “illegal and invalid”; an order that the warrants be set aside; injunctions restraining the Commissioners of Police, Federal and State, who are, respectively, the first and second respondents, the investigating police officer, who is, as I have said, the fourth respondent, and the Director of Public Prosecutions of New South Wales from making any use of the information obtained pursuant to the warrants and interceptions; and an order that the second and fourth respondents pay to the applicant damages in the sum of $250,000 “for the invasion of his privacy constituted by the illegal tracing and intercepts”.’ 

5                     Three of the respondents filed submitting appearances and thereafter only the second and fourth respondents (referred to in these reasons as the ‘respondents’ unless otherwise indicated) actively defended the application. 

Prior motion to dismiss the application

6                     On 30 November 1998 the respondents filed a notice of motion seeking orders that the application be dismissed pursuant to O 20 r 2 of the Federal Court Rules on the basis that the application disclosed no reasonable cause of action, was frivolous or vexatious or an abuse of process.  In support of their motion the respondents raised a number of issues that, with one exception, are of no present concern.  The exception is the respondents’ claim that s 63 of the Interception Act would prevent them answering the applicant’s allegations by adducing evidence about the warrant applications because that evidence would be ‘designated warrant information’ within the meaning of s 6EA of the Interception Act and therefore might not be given in evidence other than in an exempt proceeding. 

7                     It is not necessary to recount here the careful and detailed reasons that Burchett J gave for his decision.  It is sufficient to note that his Honour declined to dismiss the proceeding because (at 312): 

‘Although what the solicitor for the applicant himself called “the main question” is bound, in my opinion, to be answered against him, it cannot be said that there is no possibility that [the applicant] may not have some success on some other question.  Once the criminal trial is over, it is likely that the embargo on the giving of evidence concerning designated warrant information imposed by s 63 will cease to operate because the evidence will have been made known to all parties in the course of the prosecution.’ 

8                     On 3 June 1999 his Honour ordered that the applicant’s application be stood over until the criminal proceedings that were then pending against the applicant had been finally resolved.  The applicant sought leave to appeal the decision of Burchett J both in this Court and in the High Court but without success.  In the High Court, Gummow J ordered that the costs of the application in that Court become costs in the Federal Court proceeding. 

Present status

9                     There was no activity in this matter from June 1999 until, on the Court’s own motion, the matter was listed for directions before me on 7 February 2001.  At that time there were, however, outstanding criminal proceedings in the Local Court so the matter was stayed generally with the parties having liberty to apply on five days’ notice.  On 24 May 2004 the respondents exercised their liberty to apply and the matter came before me for directions on 21 July 2004.  For reasons that are not presently relevant the matter was listed again on 28 July 2004.  It is not in contention that by that time the criminal proceedings against the applicant had been resolved. 

10                  For reasons expressed by Burchett J, with which I agree, (see [7] above) it was clear that the matter could not proceed in the absence of pleading by the applicant.  At the directions hearing on 28 July 2004 I therefore gave the applicant leave to file and serve an amended application and a statement of claim by 18 August 2004.  The purpose of that order was to give the applicant the opportunity to formulate and particularise a claim that might have some chance of success.  The applicant did not avail himself of this leave.  I note, however that as my order did not require him to do so but merely granted him leave, he was not in default at that stage. 

11                  On 23 August 2004 the solicitor for the respondents wrote to the applicant asking him either to file the documents as soon as possible or to confirm that he did not propose to file anything, and reminding him that the matter was listed at 9:30 am on 25 August 2004.  I understand that there was no response to this letter.  There was no appearance for the applicant at the directions hearing held on 25 August 2004.  Bearing in mind that the applicant was no longer legally represented, I gave him a further opportunity to formulate a viable claim.  This time, however, I ordered him to file an amended application and a statement of claim by 8 September 2004 and listed the matter for further directions on 15 September 2004.  At the directions hearing on 25 August the solicitor for the respondents foreshadowed that if the applicant did not comply with my orders to file the documents by 8 September 2004, they would file a notice of motion for orders for summary dismissal of the application and seek to have that motion heard at the directions hearing on 15 September 2004.  Later that day (25 August 2004), the solicitor for the respondents again wrote to the applicant, this time informing him of the orders I had made in his absence that morning, pointing out that they had informed the Court that they intended to seek to have the application dismissed if the applicant did not comply with those orders and reserving their right to seek summary dismissal even if the applicant did comply with my orders. 

12                  By 8 September 2004 the applicant still had not filed a further amended application or a statement of claim.  However he did write a letter to the Court advising that he was ill, and enclosing documentation evidencing his attempts to get legal advice.  A Deputy District Registrar responded in writing, setting out the applicant’s options and reiterating that he must attend the directions hearing scheduled for 15 September 2004. 

the present motion

13                  On 8 September 2004 the solicitor for the respondents filed the notice of motion which, as amended on 15 September 2004, is the subject of the hearing today.  On 15 September 2004, I made directions for the hearing of the respondents’ notice of motion including that the respondents and the applicant file submissions in respect of the notice of motion on 2 and 16 November 2004 respectively.  At that hearing I carefully explained to the applicant what he needed to do to progress the matter and the implications of his failure to do so. 

14                  On 3 November 2004 the solicitor for the respondents filed an outline of submissions and sent a sealed copy to the applicant.  On the same day the applicant filed a document, the covering page of which identified it as a statement of claim.  On further inspection however, it is clear that the document does not remotely resemble a statement of claim.  In part it consists of recycled submissions that were filed by the applicant’s former solicitor on 21 January 1999 in response to an earlier attempt by the second respondent to set aside the application.  They are of no assistance in relation to the motion presently before the Court. 

15                  As the above history makes clear the matter cannot proceed on the present state of the application.  Burchett J made that point clearly and the applicant must have been aware of this since June 1999 when his Honour handed down his reasons in respect of the respondents’ earlier notice of motion.  Even if the issue escaped his attention at that stage it has certainly been made clear since then both by my initially giving him leave to replead and then by ordering him to do so.  In any event his failure to attend directions hearings as listed suggests that such ignorance as he does have is, at least partly, a result of his own failure to give this matter sufficient attention. 

16                  In addition, the respondents have provided comprehensive written submissions to support their claim that the application against them has no chance of success.  In my view it is not necessary to dwell on those submissions.  Burchett J made the position entirely clear and the applicant’s failure to plead an alternative cause of action means that his Honour’s conclusions are still determinative of the matter. 

17                  Moreover, as indicated above, not only has the applicant failed to comply with the orders I made on 25 August 2004, he has also failed to take any positive step to progress his application since the matters was re-listed on the Court’s motion on 7 February 2001.  He claims, and I have no doubt that it is true, that he is hampered by not having legal representation.  Although he has said he applied for legal aid there is no evidence before me concerning when that application was made, its progress or likely determination. 

18                  The applicant claims to be in ill health but he has not submitted any evidence to support that claim.  The application is still in the form that it was in when considered by Burchett J in 1999.  The matter has now dragged on for almost seven years.  I see no prospect of it ever proceeding to a successful conclusion for the applicant both because of the absence of any pleading that might suggest a chance of success and because of the applicant’s failure to attend to the matter. 

19                  I am satisfied that it would be a substantial injustice to the respondents and an abuse of the Court’s process to allow the matter to continue.  For these reasons I will allow the respondents’ motion.  The orders of the Court are that the motion of the second and fourth respondents contained in the amended notice of motion filed on 15 September 2004 be allowed and the application be dismissed with costs.  I note that the costs in this matter include the costs of the application before the High Court in June 1999. 

Associate:        

Dated:              30 November 2004