FEDERAL COURT OF AUSTRALIA

Smolle v Reynolds [2008] FCA 621

HARALD SMOLLE AND ELKE SMOLLE v LEO JOHN REYNOLDS AND LINDA GROSS

VID1622 OF 2005

WEINBERG J

5 MAY 2008

MELBOURNE

THE COURT ORDERS THAT:

1.         Pursuant to Order 35A r 2(1)(a) of the Federal Court Rules, given the applicants’ repeated failures to comply with orders of the Court in this proceeding and based also upon the Court’s power to dismiss for want of prosecution, the application be dismissed.

2.         The applicants pay the second and third respondents’ costs, to be taxed in default of agreement.

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

REASONS FOR JUDGMENT

1                     This matter has had a long and unfortunate history.  The background facts are set out in my judgment in Smolle v Australia and New Zealand Banking Group Ltd [2007] FCA 673, delivered on 7 November 2007 and in my consequential judgment regarding costs in Smolle v Australia and New Zealand Banking Group Ltd (No 2) [2007] FCA 1967.  On 19 November 2007 I made orders requiring the applicants to file and serve any expert report upon which they might seek to rely and any affidavit containing the evidence in chief of their Austrian tax adviser, together with particulars of their claim of loss or damage, on or before 29 February 2008.  Those orders were not complied with.  That was not an unusual event.  This application was first instituted in August 2004 and has been in my docket for at least the last three years.  The applicants have never, so far as I can recall, complied in a timely and proper manner with any orders that I have made or directions that I have given. 

2                     Moreover, the applicants have now retained and dismissed at least six sets of solicitors.  Dr Smolle, who appeared unrepresented before me today, insists that he is presently represented by a Sydney firm, Thomson Playford.  That firm has not filed a notice of appearance on behalf of the applicants.  When contacted this morning by my executive assistant, a solicitor with the firm, having apparent knowledge of the matter, stated unequivocally that the firm did not act for the applicants and had told them repeatedly that it would not do so. 

3                     Dr Smolle is resident in Austria, speaks little English, and has no knowledge of Australian court procedures.  He has been told repeatedly over the past three years that he cannot hope to conduct this complex litigation himself and that he must ensure that he has adequate representation and complies with court orders.  Virtually every time the matter has come back before me, his last set of solicitors has either had their retainer terminated or elected to walk away from this proceeding. 

4                     Having heard the submissions advanced by Dr Smolle this morning, and those put forward by Mr Meyer on behalf of the second and third respondents, I am entirely satisfied that this case now, finally, warrants summary dismissal.  As indicated, there have been repeated failures on the applicants’ part to comply with court orders.  Dr Smolle was given, even today, a last opportunity to indicate a capacity to retain future solicitors to pursue this litigation.  He did not, and would not, avail himself of that opportunity.  I have no confidence whatsoever, based on his current stance, that any solicitors will be able to work with him or that they would be likely to take on his case.  It is entirely unfair to the second and third respondents to allow this proceeding to hang over their heads indefinitely. 

5                     Based therefore upon O 35A r 2(1)(a) of the Federal Court Rules, given the applicants’ repeated failures to comply with orders of the Court in this proceeding, and based also upon the Court’s power to dismiss for want of prosecution, the application should be dismissed.  The applicants must pay the second and third respondents’ costs. 

Associate:  

Dated:         5 May 2008