FEDERAL COURT OF AUSTRALIA

Luck v University of Southern Queensland (No 4) [2011] FCA 433

THE COURT ORDERS THAT:

1.    The applicant’s notice of motion of 5 February 2010 be dismissed.

2.    The applicant pay the respondent’s costs of and incidental to the notice of motion.

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.

THE COURT ORDERS THAT:

1.    The applicant’s notice of motion of 5 February 2010 be dismissed.

2.    The applicant pay the respondent’s costs of and incidental to the notice of motion.

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.

REASONS FOR JUDGMENT

introduction

1    In these two proceedings the applicant (“Ms Luck”) seeks that various orders made by Registrars of this Court be set aside, and other consequential relief. The matter is listed for trial today and Ms Luck has not appeared. The respondent seeks that the proceeding be dismissed and relies on O 35A of the Federal Court Rules. The basis for that application is Ms Luck’s failure to comply with the Court’s orders and her failure to appear and progress her applications. For the reasons which follow I have determined that the proceedings should be dismissed.

2    By notices of motion filed on 5 February 2010 in these two proceedings (and amended on 6 April 2010 in proceeding VID476 of 2008 (“VID476”)), Ms Luck seeks review of the following decisions made by Registrars of the Court pursuant to s 35A(1) of the Federal Court of Australia Act 1976 (Cth)(“the Federal Court Act”):

(a)    On 30 September 2009, refusing to grant the applicant an extension of time in which to file and serve a notice of objection to the respondent’s bill of costs filed in VID476 on 5 June 2009;

(b)    On 18 January 2010, refusing to make orders in the applicant’s favour:

(i)    dispensing with compliance with O 62 r 46(3) of the Federal Court Rules;

(ii)    adjourning the taxation of costs in VID476; or

(iii)    waiving the fee payable for the taxation of costs in VID476;

(c)    On 22 January 2010, refusing to make orders in the applicant’s favour:

(i)    dispensing with compliance with O 62 r 46(3) of the Rules;

(ii)    adjourning the taxation of costs in VID476; or

(iii)    waiving the fee payable for the taxation of costs in VID476;

(d)    On 1 February 2010, issuing a Certificate of Taxation in VID899 of 2008; and

(e)    On 15 March 2010, issuing a Certificate of Taxation in VID476 of 2008.

background

3    The proceedings were first listed for directions on 9 March 2010. Prior to the directions hearing, Ms Luck made applications for removal of these proceedings to the High Court (M8 of 2010 and M9 of 2010) (“the High Court applications”). Ms Luck sought the stay or adjournment of these proceedings pending the determination of those applications by the High Court. On 9 March 2010, I granted an adjournment and listed a further directions hearing for 25 June 2010.

4    On 3 June 2010, the Court received correspondence from Ms Luck seeking a stay or further adjournment of the hearing of these proceedings for two months due to her medical condition and so she could pursue her applications in the High Court. The correspondence was accompanied by a doctor’s certificate.

5    On 21 June 2010, the respondent informed Ms Luck and the Court that it neither consented to nor opposed that application and on 21 June 2010 I granted an adjournment and listed a further directions hearing for 1 October 2010.

6    On 30 September 2010, correspondence was sent by Ms Luck to the respondent’s solicitor requesting an adjournment on the same grounds as the earlier application. On the same day the respondent informed Ms Luck and the Court that it consented to that application noting that there had been no progress in the pursuance of Ms Luck’s matters in the High Court and foreshadowing that on the next occasion, the respondent would ask the Court to order a timetable for the completion of procedural steps and to require strict compliance with that timetable. On 30 September 2010 I adjourned the directions hearing to 8 December 2010.

7    On 19 November 2010, the Court received correspondence from Ms Luck requesting a further stay or adjournment on the same grounds as the earlier applications. By letter dated 22 November 2010, sent via email the following day, the respondent informed Ms Luck and the Court that it would not consent to that application and proposed consent orders to prepare the matter for hearing which took into account the most recent matters raised in the most recent medical certificate provided by Ms Luck, and informed Ms Luck that if her consent was not received, the respondent would seek those orders be made at the hearing on 8 December 2011. Ms Luck did not respond.

8    On 6 December 2010, the Court’s Acting Manager of Client Services, informed the parties by email that in the absence of consent the directions hearing listed for 8 December 2010 would proceed.

9    On 8 December 2010, the matter came on for directions and Ms Luck failed to appear. The respondent sought orders in the terms proposed in its correspondence of 22 November 2010. I delivered a short ex tempore judgment (Luck v University of Southern Queensland (No. 3) [2010] FCA 1402) and made the following orders:

1.     The applicant file and serve by 1 March 2011 written submissions and any further affidavits upon which she intends to rely in support of her notice of motion dated 5 February 2010.

2.    The respondent file and serve by 22 March 2011 written submissions and any affidavits upon which it intends to rely in response to the applicant’s notice of motion dated 5 February 2010.

3.    The matter be listed for hearing on 31 March 2011 and

4.     Costs be reserved.

10    On 14 December 2010, the Court varied the date of hearing to 21 April 2011 and advised the parties. On 20 December 2010 the respondent served the applicant with a copy of the orders made on 8 December 2010 together with my the reasons for judgment and an email noting the change of listing date for the final hearing.

11    On 1 February 2011, Ms Luck sent the Court and the respondent a letter (enclosing a medical certificate dated 31 January 2011) in which she again sought an adjournment of these proceedings pending her recovery and the hearing and determination of the High Court matters. In a manner typical to much of the correspondence received from Ms Luck, the letter ended with the following statement:

I will not be interacting with the courts or the parties or undertaking related work following filing and serving of this letter and medical certificate by facsimile, and request that any correspondence that flows from this is kept to the bare minimum, and I will appropriately respond after my period of rest and recuperation.

12     In response to that correspondence on 4 February 2011 Ms Luck was contacted by the Court and informed that any application for the vacation of the trial would only be considered if she filed a notice of motion and supporting affidavit. On 21 February 2011, Ms Luck was further informed in the following terms:

If you seek to rely on your medical condition as a ground for not pursuing your action, including by seeking to vacate the trial listed for 21 April 2011 and, or requiring that the Court not communicate with you, then the Court will require evidence on affidavit as to your medical condition and your unfitness to press your application. The presentation of a medical certificate not supported by an affidavit from the medical practitioner concerned will not suffice for that purpose.

13     The Court has received various further responses from Ms Luck asserting her right to dictate how and when the Court will proceed with her matters. On 21 February Ms Luck sent a response to the Court in the following terms:

I find this correspondence harassing and traumatising and do not expect it to continue.  When the time comes for my medical certificate to expire or be renewed, I will consider the circumstances at that time in accordance with the status of my disabilities. I seek all concessions, adjustments, adjournments, stays and time extensions on the basis of my disabilities in accordance with my rights under the Disability Discrimination Act 1992.

Please cease this communication as it is not essential or necessary at this time.

14    On 5 April 2011, the Court received further correspondence from Ms Luck, via the respondent’s solicitors requesting a further adjournment or stay of the proceedings on similar grounds to the previous applications and accompanied by a further doctor’s certificate.

15    On 12 April 2011 the Court contacted Ms Luck via email re-advising her in the same terms as the 21 February 2011 email. Ms Luck responded in the following terms:

I write to inform you that I am unable to comply with the oppressive direction, I presume made by his Honour via Courtney Davey on 21 February 2011 and attached in the form of an email received today from Ms Davey.  I have also notified his Honour via the same means, on several occasions, that I seek concessions and reasonable adjustments in respect of the form in which I make my applications.

I have provided certification from Dr Leow and Dr Varney and clearly, as a disabled person, I am entitled to be granted my rights under the Disability Discrimination Act 1992 and the United Nations Convention on the Rights of Persons with Disabilities.

The only difference between the form directed by his Honour, i.e., affidavit, and my application in writing with qualified certification, is the amount of distress, trauma, pain and suffering I must endure to make it.  The initial reason for my seeking adjournments or stays due to my ill health, in June last year, was based on the traumas I suffered at the hands of the Courts and parties and the refusal to grant my disability rights to reasonable adjustments. 

His Honour’s refusal to accept my requests for the grant of my rights is a breach of domestic and international human rights law, and I consider it to be a persistent form of victimisation and harassment, and request that it be ceased immediately.

I am unable, as a self represented litigant, at this stage, due to my certified medical conditions, to cope with the preparation of any formal documents in regard to this matter, nor am I able to obtain the necessary authorised signature/s to formalise the documents, as it causes me to be further traumatised, and likely to extend the period of time I will be unable to comply with these oppressive directions.

Please forward this information on to his Honour.

16    There is also evidence before me that Ms Luck has failed to take steps to progress her applications in the High Court.

17    I should also refer to the various medical reports that have accompanied correspondence received from Ms Luck. There was a medical report from a Dr Varney, dated 9 November 2009. In that report the doctor certifies that Ms Luck suffers from various medical conditions which are there set out. The doctor says that because of those conditions:

Time extensions, at her discretion, are sought to allow her to complete requisite documents and activities for academic and forensic purposes.

18    The next certificate provided is dated 2 June 2010 and is provided by Dr Priscilla Leow. Relevantly, that certificate says that in the past few months Ms Luck has been traumatised by events related to legal proceedings and court appearances, and was so overwhelmed by her obligatory litigation duties that she had become further depressed and was suffering from a loss of concentration and focus as well as insomnia, all of which had exacerbated her underlying medical conditions. The doctor provided a medical certificate for two months on the basis that Ms Luck needed a rest to recover from her depression and to recollect her resources so as to cope with tasks relating to her legal proceedings.

19    A further medical certificate from Dr Leow was provided and dated 15 September 2010. In that certificate the doctor says that she had decided to give Ms Luck an extension of her medical certificate for a further month, effective from 15 September 2010. Again the doctor referred to Ms Luck’s condition being exacerbated by her anxiety relating to her negative experiences of the court processes and her legal proceedings. The doctor expressed a hope that Ms Luck would begin taking on her litigation duties within the next three to four weeks.

20    A further certificate from Dr Leow dated 17 November 2010 was provided. The certificate largely follows the same format as the earlier certificates. It notes that Ms Luck had hoped to begin taking on her litigation duties within the month following September 2010, but the doctor says that it appears that Ms Luck has not recovered enough to maintain focus and concentration to deal with those duties, and recommends a further period of adjustment and recovery of two months, effective from 17 November 2010.

21    A further certificate from Dr Leow dated 31 January 2011 was provided. It again notes Ms Luck’s hope of being able to commence her litigation duties, but again notes that the expected recovery had not eventuated. The doctor recommended a further period of adjustment of two months, effective from 31 January 2011.

22    Finally, a certificate dated 1 April 2011 was provided by Ms Luck, again from Dr Leow. That certificate recommends a further period of adjustment and recovery of a few months until all the health professionals looking after Ms Luck are satisfied that she is capable of undertaking the stress involved in Ms Luck’s legal matters after Ms Luck has had an opportunity to process and grieve her mother’s death. I note in that respect that the doctor’s certificate of 17 November 2010 stated that Ms Luck’s mother had died on 20 June 2010.

Legal Principles

23    Order 35A r 3(1) of the Federal Court Rules provides that if an applicant is in default the Court may order that:

(a)     The proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the applicant.

24    Order 35A r 2(1) provides that for the purposes of O 35A an applicant is in default if the applicant:

(a) Fails to comply with an order of the court in the proceeding; or

(b) Fails to attend a directions hearing; or

…

(f) Fails to prosecute the proceeding with due diligence.

25    The Court is reposed with a wide discretion. Default need not necessarily lead to dismissal. Some of the considerations relevant to the exercise of that discretion were referred to by Tamberlin, Greenwood and Collier JJ in Welsh v Digilin Proprietary Limited [2008] FCAFC 149 in a passage which relies upon the judgment of an earlier Full Court in Lenijamar Pty Ltd v AGC (Advances) Limited (1990) 27 FCR 388. At paragraph [12]-[14] their Honours said of O 35A r 3(1);

The power conferred by this rule is discretionary and, as observed by Wilcox and Gummow JJ in Lenijamar in relation to a precursor to this rule:

The power given by the rule is conditional on one circumstance only: the failure of a party to comply with an order of the court directing that party to take a step in the proceeding. There is no requirement of intentional default tor contumelious conduct, although the attitude of the applicant to the default and the Court’s judgment as to whether or not the applicant genuinely wishes the matter to go to trial within a reasonable period will usually be important factors in weighing the proper exercise of the discretion.. There is no requirement of “inordinate or inexcusable delay” on the part of the applicant or the applicant’s lawyers, although any such delay is likely to be a significant matter. There is no requirement of prejudice to the respondent, although the existence of prejudice is also likely to be significant. (Lenijamar Proprietary Limited v AGC (Advances) Limited (1990) FCA 520; (1990) 27 FCR 388 at 395-396).

Their Honours continued:

The discretion is unconfined, except for the condition of non-compliance with a direction. Two situations are obvious candidates for the exercise of the power: cases in which the history of non-compliance by an applicant is such as to indicate an inability or unwillingness to co-operate with the court and the other party or parties in having the matter ready for trial within an acceptable period and cases – whatever the applicant’s state of mind or resources – in which the non-compliance is continuing and occasioning unnecessary delay, expense or other prejudice to the respondent. (Lenijamar (1990) 27 FCR at 396).

In our view these comments apply with equal force to the discretion which the court is presently required to exercise under order 35A rule 3(1)...

Application of Legal Principles to the Facts

26    Ms Luck’s conduct is in default of O 35A r 2(1) paragraph (a) by her failure to comply with the orders made on 8 December 2010. She is also in default at paragraph (b) of that rule due to her failure to attend the directions hearing on 8 December 2010. Given that it is now some 14 months since her notices of motion were issued and that Ms Luck has failed to take any step to progress those proceedings, she has in my view, failed to prosecute the proceedings with due diligence in breach of paragraph (f) of r 2(1) of O 35A. I have taken into account the following matters in deciding to exercise my discretion in favour of the dismissal of the proceedings.

27    Ms Luck’s conduct demonstrates an inability or unwillingness to cooperate with the Court. On one view her conduct, particularly the content and tone of her correspondence with the Court may be regarded as high-handed, disrespectful and defiant. As the authorities to which I have referred say, there is no requirement of intentional default or contumelious conduct. It is not necessary for me to make any such findings. It is sufficient that I be satisfied, as I am, that Ms Luck’s conduct indicates “an inability or unwillingness to cooperate with the Court and the other party or parties in having the matter ready for trial within an acceptable period.”

28    Ms Luck’s lack of cooperation is manifested by her refusal to deal with her asserted need for more time through a proper application to the Court. The medical certificates provided by Ms Luck are not verified. Given their number and nature, the respondent is entitled to test the veracity of the conclusions contained in them. Far more critically, and accepting the content of those certificates for the moment, the respondent and the Court needs to be put in the position of knowing what, if any, prospect there is that Ms Luck will, in the future, be in a position to prosecute these proceedings. The medical certificates make it clear that Ms Luck’s medical condition has a close connection with and is adversely affected by her need to prosecute these proceedings.

29    These proceedings are, according to Ms Luck’s doctor, a significant stressor upon Ms Luck. Whilst the certificates in each case provide hope that in a month or two from the date of the certificate Ms Luck will recover, that expectation does not eventuate and the impression that is left by the certificates is that Ms Luck may not be in a position to prosecute these proceedings either at all, or in the foreseeable future. The fundamental point, however, is that Ms Luck’s uncooperative conduct has failed to put the Court in the position to know what her future capacity to prosecute these proceedings truly is.

30    Prejudice to the respondent is another factor which I have taken into account. The respondent has orders for the payment of its costs, which it is entitled to pursue. In practical terms, it is precluded from doing so whilst the process by which those costs were taxed remains under challenge. That preclusion is an advantage to Ms Luck, aided by her inability to progress these proceedings.

31    I also take into account the nature of the proceedings and whether the claim appears to have substance. I refer in that respect to Lenijamar Pty Ltd at 402. In essence this is a fight over costs which have been taxed in the sum of some $50,000. The process by which those costs were taxed is challenged, but on the material before me, including by reference to what I regard to be the persuasive written submissions provided by the respondent, Ms Luck’s challenge has no apparent likelihood of success. Even if Ms Luck was successful and the process was to be redone, at best the end result for Ms Luck may be some reduction in the sum to be paid by her by way of costs. In the circumstances, and on the assumption that the medical certificates are correct, there is a real prospect that the pursuance of these proceedings by Ms Luck may well do her more harm than good, even if she should succeed.

32    Lastly I take into account the need to bring finality to this litigation and the Court’s obligation to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible: ss 37M and 37N of the Federal Court Act.

33    For those reasons I will, in each proceeding, make orders dismissing the applicant’s notice of motion and requiring Ms Luck pay the costs of and incidental to the notice of motion.

Associate:

Dated:    3 May 2011