FEDERAL COURT OF AUSTRALIA

Moussalli v Western Power [2010] FCA 1120

Citation:		Moussalli v Western Power [2010] FCA 1120

Appeal from:		Moussalli v Western Power (No 3) [2010] FMCA 389

Parties:		REEF MOUSSALLI v WESTERN POWER

File number:		WAD 174 of 2010

Judge:		FOSTER J

Date of judgment:		14 October 2010

Catchwords:		APPEAL – appeal from a decision of a Federal Magistrate – appellant has failed to prosecute his appeal – Notice of Appeal defective – ill health and lack of funds proffered as reasons for inactivity – no prospect of improvement in the foreseeable future – real and substantial prejudice visited upon the respondent – appeal summarily dismissed with costs

Legislation:		Federal Court of Australia Act 1976 (Cth), ss 25(2B)(ba), (bb) and (bc), 37M and 37N Workplace Relations Act 1996 (Cth), s 659(2) Federal Court Rules, O 52 r 13, O 52 r 38

Cases cited:		Moussalli v Western Power (No 3) [2010] FMCA 389 related Argus Real Estate Holdings Pty Ltd v Lyristakis [2002] FCAFC 256 applied Birkett v James [1978] AC 297 cited Commonwealth v Evans (2004) 81 ALD 402 cited Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354 applied SZMIP v Minister for Immigration and Citizenship [2009] FCA 217 cited Van Reesema v Giameos (1979) 27 ALR 525; (1979) 41 FLR 86 cited

Date of hearing:	14 October 2010

Place:	Sydney (via video link to Perth)

Division:	GENERAL DIVISION

Category:	Catchwords

Number of paragraphs:	58

Counsel for the Appellant:	The Appellant did not appear

Solicitor for the Respondent:	Mrs EG Hartley of Freehills

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 174 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

REEF MOUSSALLI

Appellant

AND:

WESTERN POWER

Respondent

JUDGE:	FOSTER J
DATE OF ORDER:	14 OCTOBER 2010
WHERE MADE:	SYDNEY (via video link to perth)

THE COURT ORDERS THAT:

1. The hearing of the appeal fixed for 12 November 2010 be vacated.

2. The appeal be dismissed.

3. The appellant pay the respondent’s costs of and incidental to the appeal (including any reserved costs).

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 174 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

REEF MOUSSALLI

Appellant

AND:

WESTERN POWER

Respondent

JUDGE:	FOSTER J
DATE:	14 OCTOBER 2010
PLACE:	SYDNEY (via VIDEO LINK TO PERTH)

REASONS FOR JUDGMENT

1 The respondent has applied to the Court for an order that this appeal be summarily dismissed.

2 The appeal is fixed for hearing before me on 12 November 2010 in Perth. That fixture has been known to the parties since 16 or 17 August 2010.

3 The appellant has not taken any of the steps required of him to ready his appeal for hearing. He has not attended two appointments fixed by the Registrar for the settling of the index to the Appeal Books. For this reason, amongst others, no Appeal Books have been prepared and, as far as I know, no steps whatsoever have been taken by the appellant to prepare Appeal Books. The appellant has not completed Status Reports as required by the directions made by the Court, although, on one occasion, he did lodge a document which purported to be such a report but which, in truth, fell far short of what was required.

4 The appellant did not attend either of the callovers of his appeal which took place before Gilmour J on 21 July 2010 and on 4 August 2010.

5 The appellant also failed to attend the listing before me on 21 September 2010. I listed the appeal before me on that day in order to ascertain the appellant’s intentions and to determine what should be done with his appeal.

6 Finally, the appellant has not appeared today notwithstanding that he is aware that the respondent seeks to have his appeal summarily dismissed. I have had the matter called outside Court but there was no response to that call either by or on behalf of the appellant.

7 I am satisfied that the appellant has been served with the respondent’s Notice of Motion filed on 5 October 2010 and with the affidavit of Penelope Diana Brooke sworn on 4 October 2010 (Ms Brooke’s affidavit) filed in support of that Motion notwithstanding that the copy of that material which was sent by registered post has not been retrieved by the appellant. A further copy was sent on 7 October 2010 by ordinary prepaid post to the address for service provided to the Court by the appellant. This is an address to which mail has previously been sent which has, in fact, come to the attention of the appellant. In addition, the Court has formally notified the appellant of today’s listing.

8 The appellant has not applied to adjourn the appeal nor has he explained by affidavit evidence his failures to do that which was required of him to ready his appeal for hearing. He has not put any evidence before the Court in answer to Ms Brooke’s affidavit.

9 Notwithstanding the fact that the appellant has not filed any affidavit material explaining his conduct or seeking to answer the material filed on behalf of the respondent, the appellant has sent correspondence to the Court and had conversations with Registry staff in the period between 25 June 2010 and 9 September 2010. In the communications which the appellant has had with Registry staff, he has conveyed to them that he has been unable to attend to the proper preparation of his appeal because he is unwell at the present time and does not have sufficient funds to retain a lawyer to assist him. I shall refer to these communications in more detail later in these Reasons. I have read all of the correspondence forwarded to the Court by the appellant as well as the enclosures sent with that correspondence. For reasons which I will explain, taken at its highest, that material does not justify an adjournment of the hearing of the appeal although it does explain, to some extent, the conduct of the appellant.

10 In the circumstances which I have outlined, the respondent has been driven to make the application with which I am now dealing.

11 It seems to me that I have two choices:

(1) To adjourn the hearing of the appeal even though neither party has requested that I do so; or

(2) Alternatively, to accede to the respondent’s summary dismissal application.

12 I propose to take the latter course and to dismiss the appellant’s appeal. I shall now explain why.

The Notice of Appeal

13 The Notice of Appeal was filed on 25 June 2010. It is in the following terms:

NOTICE OF APPEAL

The appellant appeals from the whole of the judgment of the Federal Magistrates Court given on 4^th July 2010 at the Federal Magistrates Court, PERTH.

GROUNDS OF APPEAL:

1. To be given/amended upon seeking legal advice and recovery from my medical condition.

2. This will include (subject to later amendment), grounds such as:

– Denial of Natural Justice.

– BIAS.

– Failure to consider evidence.

– Giving too much weight to evidence.

– Errors in law.

ORDERS SOUGHT:

1. To be given upon seeking legal advice and recovery of medical condition, as per above.

14 The judgment of the Federal Magistrate from which the appeal is brought (Moussalli v Western Power (No 3) [2010] FMCA 389) was handed down on 4 June 2010, not 4 July 2010 as stated in the Notice of Appeal.

The Judgment of the Federal Magistrate

15 The Federal Magistrate summarily dismissed the appellant’s Application in the Federal Magistrates Court upon the basis that his Application had no reasonable prospect of success. When the Federal Magistrate came to deal with the respondent’s summary dismissal application, the appellant was not represented and did not appear. At the commencement of the summary dismissal hearing, Counsel appeared for the appellant and sought to tender before the Federal Magistrate affidavit material indicating why the appellant would not be appearing at that hearing. Counsel then withdrew.

16 The appellant’s claim before the Federal Magistrate was for reinstatement of his employment with the respondent. The respondent had terminated that employment because the appellant had failed to return to work as directed. In the Application filed by him in the Federal Magistrates Court, the appellant pleaded that his employment had been terminated on grounds which were prohibited under s 659(2) of the Workplace Relations Act 1996 (Cth).

17 The Federal Magistrate read and took into account four affidavits filed by the appellant in the Federal Magistrates Court proceeding and carefully considered the contents of those affidavits in the course of determining whether or not the grounds pleaded had been made out. At [51] of his Reasons, the Federal Magistrate said:

51. The Court has concluded that each aspect of the claims made in the amended application by Mr Moussalli cannot succeed on the evidence that he has filed. The amended application therefore has no reasonable prospects of success. Indeed, in the Court’s view, it has no prospects of success at all on the evidence before the Court. As indicated above Mr Moussalli’s evidence has come in by way of four affidavits which are before the Court, and in circumstances where Mr Moussalli had the opportunity to file further affidavit material, he failed to avail himself of that opportunity, and has ultimately failed to lead evidence which proves his claims. There will therefore be orders upholding Western Power’s summary dismissal application, and dismissing Mr Moussalli’s amended application.

18 For present purposes, it is not necessary to descend into a more detailed analysis of the judgment under appeal. As matters stand at the moment, the appellant has not identified with any specificity the errors said to have been committed by the Federal Magistrate nor has he sought to support the very general contentions made in his Notice of Appeal with any argument.

The Appellant’s Conduct of the Appeal

19 The Notice of Appeal was filed on the last day on which it could have been filed in accordance with the Federal Court Rules.

20 At the time he filed his Notice of Appeal, the appellant delivered to the Court a letter dated 25 June 2010. The terms of that letter were as follows:

To: Registrar of the Federal Court, Perth Registry

Subject: Notice of Appeal - Form 55

URGENT

Dear Registrar,

I am writing this in regards to my notice of appeal dated today 25 June 2010. Unfortunately, the deadline for lodging and filing this is Today 25 June 2010, given the 21 days deadline from orders of 4 June 2010.

My understanding is that a directions hearing is to be set for that purpose.

I request that the date for that hearing be postponed in order to allow me to seek legal advice, given that my current medical condition has worsened recently to the point where I can no longer attend to legal matters personally.

I attach a copy of an affidavit from Dr Darren Keating, my treating doctor, which shows the history of the worsening of my anxiety condition since February and that I m [sic] not fit to attend to legal issues at least until 20 July 2010 which is when I am going to be examined again.

I attach a copy of an affidavit from Bradley Barker, which shows my restricted ability for work and the need for rehabilitation since June 2009.

I had worked in January and February for about 10 hours a week, as part of my rehabilitation program, but haven’t done any work since then due to my condition and situation.

Since June 2009, I have been on Centerlink [sic] benefits of $500 per fortnight. Prior to that the only income I had was pay of around $4,500 ater [sic] tax for the termination of my employment in November 2008. I had been on a sick leave pay since I stopped working in November 2006 and my pay gradually reduced through half pay and third pay until May 2008, when my employer ceases [sic] to pay me.

To maintain my home mortgage, I have had to refinance the home loan a few times and retrieved about $11,000 of superannuation money because of financial hardship. As a result, I now owe about $350,000 on my home loan, and I am not able to borrow any more money with no income since November 2008 (apart from Centerlink [sic] benefits since June 2009).

I am in severe financial hardship at the moment and cannot afford a solicitor. As a matter or [sic] urgency, I had a solicitor appear for me for the hearing of 2 June 2010 at the Federal Magistrates Court, and his fee was paid by my sister who is no longer prepared to support me financially.

I will require time to get legal assistance: I intend to apply for probono solicitor assistance and I am considering other finanancial [sic] assistance schemes too.

When I get medically in a better condition, I will be increasing my hours of rehabilitation work hours gradually to 15 hours per week, as per the plan in the attached report. However, I anticipate requiring at least 6 months before I am in a position to save money to pay solicitors fees in relation to the preparation of appeal papers.

I therefore kindly request your understanding of my situation and your consideration to allow about 6 months before the directions hearing in order to allow myself to recover medically and financially.

Please let me know if you require any documentation to substantiate things like what I mentioned above relating to my home loan situation, income, tax returns, Centerlink [sic] payments, etc...

Thank you for your consideration,

Regards

Reef Moussalli

21 Enclosed with that letter was an affidavit of Darren William Keating sworn on 1 June 2010 apparently prepared for use in the Federal Magistrates Court in relation to the summary dismissal application in that Court which was heard on 2 June 2010 and determined on 4 June 2010 by the judgment under appeal. Dr Keating is a medical practitioner who provided a Workers’ Compensation Progress Medical Certificate to the appellant dated 18 May 2010 in which he certified that the appellant was unfit for work until 20 July 2010. In the Medical Certificate attached to Dr Keating’s affidavit, Dr Keating said the following in respect of the appellant:

Since February 2010, increasing stress/anxiety secondary to legal process demands/timelines. Inpatient at JHC (Joondalup Health Campus) due to severe headache secondary to anxiety/stress. Chronic stress/anxiety – unfit to work.

22 In his affidavit, Dr Keating said that there had been a significant deterioration in the appellant’s condition since his last review on 9 December 2009. Dr Keating said that, in his opinion, the appellant was unsuitable to perform any work (including preparation of legal documents and appearing in Court if required) for the period from 18 May 2010 to 20 July 2010 due to his condition.

23 There was also enclosed with the appellant’s letter to the Court dated 25 June 2010, a Job Capacity Assessment Report dated 17 June 2009 prepared by Bradley James Barker, a Conditionally Registered Psychologist. This Report had been commissioned by Centrelink. In this report, Mr Barker said that the appellant was permanently afflicted with hypertension, migraine and anxiety although all of these conditions were expected to improve over time.

24 On 25 June 2010, the West Australian District Registrar of the Court sent a letter to the appellant in which he notified the appellant that his appeal would be called over at 9.30 am on 21 July 2010 and that it was likely to be fixed for hearing in November 2010. In that letter, the following was said:

If parties have legal representation then they should be represented at this callover, either by counsel or by a solicitor. Parties without legal representation should appear in person at the callover. The Judge presiding at the callover will be seeking information about:

• the nature of the matter and the essential issues and how they arise;

• the nature of any cross appeal or notice of contention;

• whether the matter is ready to proceed;

• whether the appeal index has been settled and the appeal books have been prepared;

• whether any consideration has been given to an electronic appeal (subject to a written request to the District Registrar outlining the proposed electronic solution and consultation with an eRegistrar or Registrar in the first instance);

• whether any party seeks expedition of the hearing of the appeal;

• the parties’ agreed estimated duration of the matter;.

• the names of counsel briefed to appear;

• whether counsel is briefed to appear in any other matters that may be listed in the same Full Court sittings anywhere across Australia;

• dates in the proposed sittings when the parties are not available for hearing and the reasons for non-availability.

• whether any judge of the Court may be precluded from sitting on the matter because of prior involvement or association.

Please note that although the Court will endeavour to accommodate parties/counsels' unavailable dates matters may still be listed at any time during the Full Court sittings. Any change of counsel or dates of availability must be advised to the Court in writing as soon as practicable.

All parties to matters in the list are requested to provide information on the status of their matter by completing the enclosed Status Report for Full Courts and/or Other Appeals.

Ideally parties should complete one Status Report, however, if there is disagreement, separate forms can be completed (clearly indicating which party has completed the separate form and the area of disagreement). Responses to questions on the form should be typed or neatly handwritten.

Please return your completed report prior to the callover. Reports maybe forwarded to the associate to Justice Gilmour by facsimile on (08) 9221 3261, or by mail to GPO Box A30, Perth WA 6837.

Parties are encouraged to consult prior to the callover to reach agreement as far as possible on these matters.

Please refer to the Federal Court file number in all correspondence to the Court regarding this matter. If you have any queries in relation to the above please direct your enquires to Janet Musker on (08) 9268 7100.

M Jan

District Registrar

(Original emphasis)

25 On 20 July 2010, the appellant sent a facsimile transmission to the Court to which he attached 31 pages of attachments. The facsimile transmission which he sent was intended to be the Status Report for Full Courts and/or Other Appeals required by the Court. The Status Report itself occupied only two pages of the transmission. In his Status Report, the appellant said that he had been unable to secure the services of a lawyer because of his poor health and a lack of funds. He then referred to the various attachments which he forwarded under cover of his facsimile transmission. Included amongst those attachments, was a further copy of the appellant’s letter to the Court dated 25 June 2010, together with yet another copy of all of the attachments which had previously been forwarded to the Court with that letter. Some of the other attachments indicated that the appellant had obtained a further medical certificate which stated that he was unfit for work until 31 August 2010. There was also included within this material a Medical Certificate from Dr Dixon, a psychiatrist, dated 1 June 2010 in which Dr Dixon said that the appellant would be unable to attend to any Court appearances in early June 2010 because of his anxiety disorder and hypertension.

26 The appeal was called over before Gilmour J on 21 July 2010. The appellant did not appear on that occasion. The respondent was represented on that occasion. The callover was adjourned to 4 August 2010.

27 On 22 July 2010, the West Australian District Registrar sent a letter to the appellant in which he notified the appellant that the callover of his appeal had been adjourned to 4 August 2010 at 9.30 am before Gilmour J.

28 In letters dated 29 July 2010 sent to the appellant and to the solicitors for the respondent (Freehills), the West Australian Deputy District Registrar said:

REEF MOUSSALLI v WESTERN POWER

File No: WAD 174/2010

I refer to the above matter and the appointment to settle the draft index of appeal papers listed for Wednesday, 4 August 2010 at 10.30 am.

Pursuant to Order 52 rule 27 of the Federal Court Rules the appellant must file in the registry and serve on the respondent a draft index of each part of the appeal papers at least seven days before the appointment. I note that no draft index of appeal papers has been provided by you.

Please file and serve the draft index by no later than 4.00 pm on Monday, 2 August 2010.

Yours faithfully

Elizabeth Stanley

Deputy District Registrar

Cc Erica Hartley

Freehills

29 On 4 August 2010, the appeal was again called over by Gilmour J. The appellant did not appear. The respondent was again represented by its solicitor. Later the same day, there was an appointment to settle the appeal book index before the Registrar. The appellant did not attend to settle that index on that occasion. The appointment to settle the index was adjourned to 2 September 2010 before the Registrar.

30 On 6 August 2010, the Assistant to the Deputy District Registrar of the West Australian District Registry of the Court wrote to the appellant and to Freehills in the following terms:

REEF MOUSSALLI v WESTERN POWER

File No: WAD 174/2010

I refer to the above matter and the appointment to settle the draft index of appeal papers that was listed for Wednesday, 4 August 2010 at 10.30 am.

As you did not appear, the appointment to settle the appeal book index has now been adjourned to Thursday, 2 September 2010 at 2.30 pm.

Please ensure that you file and serve the draft index by no later than 4.00 pm on Thursday, 26 August 2010.

Yours faithfully

Rene Crane

Assistant to Deputy District Registrar Stanley

Cc Penelope Brooke

Freehills

31 There was no appearance either by or on behalf of either party at the adjourned appointment to settle the appeal book index held on 2 September 2010. The solicitor for the respondent was excused from attendance unless and until the appellant arrived at the appointment. As the appellant did not appear, it was not necessary for the solicitor for the respondent to appear. On this occasion, the appointment to settle the appeal book index was adjourned to a date to be fixed.

32 In letters dated 16 August 2010 from the West Australian District Registrar to the appellant and to Freehills, the parties were informed that the appeal had been listed for hearing before me on Friday, 12 November 2010 at 10.15 am.

33 In early September 2010, officers in the West Australian District Registry attempted to secure pro bono legal representation for the appellant. Those attempts proved to be unsuccessful. The appellant was notified of this and informed that he would have to secure his own legal representation or appear himself if he was unable to do so.

34 In a letter sent to the West Australian District Registrar of the Court dated 9 September 2010, the appellant said the following:

REEF MOUSSALLI v WESTERN POWER

WAD 174 of 2010 Appeal

I refer to my correspondence to the Registrar of the Federal Court dated 25 June, 25 July and 10 August 2010 regarding my inability to attend to the Appeal matter that I lodged on 25 June 2010 with the Federal Court.

As can be seen from previous documents, I have been diagnosed by my psychiatrist (Dr Dixon) to be suffering from “Generalised Anxiety Disorder” in relation to my court case matters.

Due to my anxiety, I have been unable to attend to any letters either from the Court or from the solicitors for the last 7 weeks. As a result I have collected my mail from my letterbox on four occasions and taken it to the counsellor so that I can be helped in this matter, but this is still not resolved.

I have asked the Court to please give consideration to provide me with a probono solicitor which I understand I would be entitled to do.

I am still in severe financial hardship and undergoing job rehabilitation /study which has the main purpose at the moment of taking my mind off the Court issues.

I have attended C.C.I (refer previous fax) – as per attached letter –last week, but I have been told I cannot join any mood ansiety [sic] groups yet until I have resolved my court matters. I am still doing counselling on a weekly basis.

35 The Medical Certificate enclosed with that letter stated that the appellant was unfit for work up to 12 October 2010.

Correspondence Between the Parties

36 In a letter from Freehills to the appellant dated 6 July 2010, Freehills drew the appellant’s attention to the deficiencies in his Notice of Appeal. The appellant was told that his Notice of Appeal failed to comply with O 52 r 13(2) of the Federal Court Rules.

37 In addition, Freehills asserted that the appellant had no reasonable basis for lodging and proceeding with his appeal. The author of the letter went on to remind the appellant of his obligations to comply with the various requirements of the Court insofar as the preparation of his appeal is concerned. Mention was made of the need to file a Status Report and to prepare appeal papers. Paragraphs 6 and 7 of that letter were in the following terms:

6 Failure to comply

If you fail to comply with any of the requirements of Order 52 of the Federal Court Rules, our client may:

• apply for an order that your appeal be dismissed for want of prosecution, pursuant to Order 52, rule 38(1)(a), on the basis that you have failed to act as required by the Federal Court Rules and have not prosecuted your appeal with due diligence; or

• apply for a motion to dismiss your appeal, pursuant to section 25(2B)(bb) of the Federal Court Act, on the basis that you have failed to comply with the directions of the Court.

Our client has instructed us that they will not be agreeing to any delays or adjournments of your appeal for any reason.

7 Costs

Our client did not apply for costs in the initial proceedings (PEG 64 of 2009). However, we have now been instructed to inform you that our client will be seeking to recover all the costs it incurs in relation to this appeal on the basis that there is no reasonable basis to bring the appeal.

This means that if your appeal is dismissed, our client will be applying for a special costs order against you for the full recovery of all our client’s legal costs associated with the appeal, even if this is in excess of the amounts set out in the relevant costs scale found in Schedule 2 of the Federal Court Rules.

38 The appellant sent a letter to Freehills dated 14 July 2010. In that letter, he referred to the letter which he had sent to the Court on 25 June 2010 in which he sought to postpone the callover of his appeal for at least six months. In his 14 July letter, he said that, in light of the matters raised in his earlier letter, he was “… unable to address the contents of …” the letter from Freehills dated 6 July 2010.

39 Freehills sent a further letter to the appellant dated 16 July 2010. In that letter, they informed the appellant that the respondent would oppose any application for an adjournment of his appeal and that he should attend to the various tasks required of him to ready his appeal for hearing. Freehills prepared a Status Report as required by the Court and provided to the appellant a copy of that Report in draft form. Under a heading Adjournment in that Status Report, the following was said:

Adjournment

1. This is an appeal against a strike out decision. The Appellant is self-represented and did not appear at the strike out hearing.

2. The appeal grounds have not been properly given. The Appellant has claimed that he will give or amend these upon seeking legal advice and recovery from his medical condition.

3. The Appellant has not applied for an adjournment. If such an application is made on the basis of the Appellant’s medical condition, our instructions are that it is likely to be opposed on the basis that there is no medical evidence of a date when the Appellant will be fit to run this appeal.

4. The Respondent has informed the Appellant it believes that there is no reasonable basis for the appeal and that indemnity costs will be sought if the appeal is dismissed.

5. We notified the Appellant of our client’s position in a letter sent to him on 15 July 2010. The Appellant’s reply was a fax to say that he was unable to respond to our letter.

6. The Appellant has indicated to the Court in his letter to the Registry dated 25 June 2010 that he is unable to run this appeal in a timely manner for at least 6 months. The Appellant did not provide the Respondent with a copy of this letter until 14 July 2010.

7. Any delays or adjournments caused by the Applicant’s non-compliance with the Court’s directions will only serve to exacerbate our client’s costs.

40 In the Status Report prepared by Freehills, Freehills stated that the respondent opposed the listing of the matter for hearing and would continue to do so until proper grounds of appeal were provided by the appellant.

41 It is in light of these events that, on 5 October 2010, the respondent filed the Notice of Motion with which I am now dealing.

Consideration

42 The appellant has not sought to have the respondent’s Notice of Motion adjourned. Nor has the appellant sought to vacate the hearing of the appeal fixed for 12 November 2010. However, the appellant has persistently and consistently brought to the attention of the Court the difficulties which he is presently experiencing both in terms of his health and his financial position. The materials provided by the appellant directed to establishing his current state of health are untested and have not been presented to the Court in any formal way. Those materials, however, reveal that the appellant appears to be suffering from stress and anxiety brought about by the legal proceedings which he instituted against the respondent in the Federal Magistrates Court and by the appeal from the Federal Magistrate’s decision which he has instituted in this Court. In one of the reports to which I have referred, the stress and anxiety brought about by these events are described as “permanent” but with some prospect of improvement over time.

43 It seems to me that there is no real prospect that the appellant’s medical conditions will improve in the foreseeable future whilstever the appeal and underlying litigation remain on foot. Nor does there seem to be any real prospect of an improvement in his financial circumstances in the foreseeable future. The appellant is in a classic “Catch-22” situation. On the one hand, he says that he is unable to prosecute his appeal because of his poor health and his lack of funds. On the other hand, his medical conditions will not improve until his appeal is determined. At the very least, the reports from the appellant’s doctors suggest that his prognosis is uncertain and that it is impossible to predict when, if at all, his conditions might improve. Further, the Court has been unable to secure pro bono legal representation for the appellant and it seems unlikely that he will be able to afford a lawyer for some considerable time (if ever).

44 In effect, the appellant is asking the Court to defer dealing with his appeal for an indefinite period with no reasonable prospect that his circumstances will improve should such deferment occur.

45 If the Court were to accede to the appellant’s wishes, there is likely to be substantial prejudice caused to the respondent. The respondent will have to devote time and money to protecting its interests in relation to the appeal. In addition, it will be left with unresolved litigation hanging over its head which will not be dealt with for some considerable time—probably years.

46 Apart from filing his Notice of Appeal, the appellant has not taken any step whatsoever to progress his appeal since 25 June 2010.

47 Order 52 r 13(2) of the Federal Court Rules provides:

13 Title of proceeding

…

(2) The notice of appeal shall state:

(a) whether the whole or part only, and what part, of the judgment is appealed from;

(b) briefly, but specifically, the grounds relied upon in support of the appeal; and

48 It is not sufficient for an appellant to state his grounds of appeal in the general terms in which the grounds of appeal in the present case have been specified. The grounds of appeal should identify with precision the errors made in the judgment under appeal and should indicate, in brief terms, the substance of the error allegedly made. In addition, the Notice of Appeal should state with precision the relief which is sought (Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354 at [2]–[5] (pp 355–356) (per Branson J) and at [48]–[54] (pp 368–370) (per Weinberg and Dowsett JJ); Argus Real Estate Holdings Pty Ltd v Lyristakis [2002] FCAFC 256 at [10] (per Spender and Miles JJ); Commonwealth v Evans (2004) 81 ALD 402 at [33]–[35] (per Branson J); and SZMIP v Minister for Immigration and Citizenship [2009] FCA 217 at [9]–[13] (per Flick J)).

49 In my view, the appellant’s Notice of Appeal falls well short of what is required by O 52 r 13(2) of the Federal Court Rules. The grounds of appeal are too general to be of any value and the appellant has failed to specify the relief which he seeks. The appellant himself recognises that his Notice of Appeal is seriously defective. In the body of that document, he says that he will amend it when he recovers from his current health problems and has the benefit of legal advice.

50 Order 52 r 38 is in the following terms:

38 Time; want of prosecution

(1) Where an appellant has not done any act required to be done by or under these Rules, or otherwise has not prosecuted his appeal with due diligence, the Court may:

(a) order that the appeal shall be dismissed for want of prosecution;

(b) fix a time peremptorily for the doing of the act and at the same time order that upon non compliance the appeal shall stand dismissed for want of prosecution, or subsequently and in the event of non compliance, order that it be so dismissed; or

(2) The Court may not make an order under subrule (1) unless notice of the proposed order has been served on the appellant.

(3) An order under paragraph (1) (b) may be varied at any time before the appeal stands dismissed for want of prosecution, and in special circumstances may be varied or revoked after that time.

51 There is authority in the United Kingdom (Birkett v James [1978] AC 297), followed in this Court in Van Reesema v Giameos (1979) 27 ALR 525; (1979) 41 FLR 86, to the effect that the power to dismiss an appeal for want of prosecution must not be exercised lightly. Each case must be decided on its merits and depends upon its own circumstances. General statements are of limited assistance.

52 In the present case, the appellant has taken no steps whatsoever to progress his appeal. He has not attended at Court to explain his delay, although he has written to the Court on at least two occasions suggesting that the reasons for his failure to attend to the steps required of him were his poor health and difficult financial position.

53 For the reasons which I have explained at [42]–[46] above, there is no real prospect of any change in the appellant’s present circumstances in the foreseeable future. Sooner or later, the Court will have to take steps to bring the matter to a head. In the circumstances, I think that O 52 r 38 has been engaged.

54 Section 25(2B)(ba), (bb) and (bc) of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act) provide:

25 Exercise of appellate jurisdiction

…

(2B) A single Judge (sitting in Chambers or in open court) or a Full Court may:

…

(ba) make an order that an appeal to the Court be dismissed for want of prosecution; or

(bb) make an order that an appeal to the Court be dismissed for:

(i) failure to comply with a direction of the Court; or

(ii) failure of the appellant to attend a hearing relating to the appeal; or

(bc) vary or set aside an order under paragraph (ab), (ba) or (bb); or

…

55 Consistent with the requirements of s 37M and s 37N of the Federal Court Act, both the Court and the parties are required to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.

56 My conclusions therefore are:

(a) The appellant’s Notice of Appeal is defective and does not meet the requirements for a Notice of Appeal in this Court laid down by O 52 r 13(2). The defects are not a mere matter of form. There is no prospect that the Notice of Appeal will be redrafted and put into proper form in the immediate future. There is no prospect that the appellant will be able to secure legal representation in the foreseeable future;

(b) The appellant has failed to prosecute his appeal with due diligence and has failed to take a number of specific steps required of him by the Court to ready his appeal for hearing;

(c) The appellant has failed to facilitate the just resolution of his dispute with the respondent according to law and as quickly, inexpensively and efficiently as possible;

(d) The appellant’s failure to propound a Notice of Appeal in proper form and to prosecute his appeal has caused and will continue to cause substantial prejudice to the respondent that is unlikely to be able to be compensated by an order for costs; and

(e) The medical and quasi-medical reports provided to the Court by the appellant do not support a solution to his inactivity which involves permitting the appeal to remain on foot. That material suggests that the appropriate course for the Court to adopt in order to break the present impasse is to dismiss the appeal.

57 In my view, O 52 r 38 of the Federal Court Rules and s 25(2B)(ba) and (bb) of the Federal Court Act are both engaged. I propose to dismiss the appellant’s appeal because his Notice of Appeal is defective and because he has failed to prosecute his appeal with due diligence, he having taken no steps whatsoever to progress his appeal. I am not satisfied that there is any real prospect of an improvement in the appellant’s situation in the foreseeable future and I think that the respondent is suffering and will continue to suffer real and substantial prejudice by reason of the appellant’s inactivity.

58 The respondent has sought indemnity costs against the appellant. Whilst I think that the appellant should be ordered to pay the respondent’s costs of the appeal, I think that those costs should be taxed on the party/party basis given the circumstances to which I have referred. There will be orders accordingly.

I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster.

Associate:

Dated: 19 October 2010

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