FEDERAL COURT OF AUSTRALIA

James v Owners - Strata Plan No 14274 (Formerly Woollahra Constructions Pty Ltd) [2013] FCA 1257

THE COURT ORDERS THAT:

1.    The respondent’s name be amended to ‘Woollahra Constructions Pty Ltd’.

2.    The appeal be dismissed.

3.    The appellant pay the respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    This is an appeal from a decision of the Federal Magistrates Court (now the Federal Circuit Court) handed down on 11 February 2013. The order appealed from is a sequestration order made against the estate of the appellant, Nicholas James. Mr Haines, who appears for the respondent, has drawn the Court’s attention to the fact that the notice of appeal incorrectly names the respondent as the Owners of Strata Plan No. 14274 (formerly Woollahra Constructions Pty Ltd). In fact, it is clear from the judgment and orders made in the Federal Magistrates Court that the correct name of the respondent is Woollahra Constructions Pty Ltd. I will order that the relevant documentation, including the notice of appeal, be amended accordingly.

2    The proceedings did not start auspiciously insofar as the appellant is concerned. The appeal was not commenced within the prescribed time (21 days), so the appellant was required to file an application for an extension of time within which to file the notice of appeal. That application was filed on 8 March 2013. At that time, the appellant was represented by a solicitor. An order was made extending the time for the filing of any notice of appeal to 19 April 2013. That order was made on 18 April 2013. A notice of appeal was filed on 19 April 2013 in accordance with that order.

3    The parties appeared before a Registrar on 16 July 2013, ostensibly for the purpose of settling the appeal book index. No orders were made in that regard. A notation on the Court file indicates that the parties were to attend to settling the appeal book index themselves and that, if any dispute in relation to the appeal book arose, the matter was to be re-listed for the determination or consideration of that dispute.

4    On 17 July 2013 the matter was listed for an appeal callover before Allsop CJ. By this time Mr James was unrepresented. He appeared in person at the callover. A representative of the respondent appeared and sought to have the appeal heard in the November Full Court sittings. Whilst there was no application for expedition of the appeal, the respondent submitted that any delay in the hearing of the appeal would delay the finalisation of the administration of the estate of Mr James. In those circumstances, the Chief Justice made an order the effect of which was to ensure that, if possible, the matter would be listed for hearing before a single judge before November 2013.

5    Following the making of the order by the Chief Justice, the matter was listed for hearing before me on 30 October 2013. It was also listed for directions on 1 October 2013. At the directions hearing on 1 October 2013, Mr Haines appeared for the respondent. There was no appearance for Mr James. Mr Haines suggested that the appeal should be dismissed given the failure of Mr James to appear. I did not accede to that application. Instead, I ordered that the matter be adjourned for seven days and directed that correspondence be sent to Mr James indicating that should he not appear on 8 October 2013, the appeal might be dismissed.

6    On 8 October 2013, Mr James did appear. Mr Haines appeared for the respondent again. Mr James explained his non-appearance on the previous occasion as arising from the fact that he did not receive the listing notice. It was pointed out to Mr James that this appears to have occurred because he had not filed a notice of address for service following the withdrawal of his solicitor. Mr James applied for the 30 October 2013 hearing date to be vacated and that the matter be adjourned for a month. That application was refused. It was indicated to Mr James that there would be no adjournment of the hearing unless there were good grounds to do so given the public interest in the matter being heard expeditiously. A series of orders and directions were made to ensure that the matter was ready for hearing on 30 October 2013. Those orders included the filing of an appeal book and written submissions by Mr James.

7    Shortly before 30 October 2013, the Court received email correspondence from Mr James which indicated that he had not complied with any of the orders in relation to the preparation of an appeal book or the filing of submissions. He wanted the 30 October 2013 hearing date adjourned. My associate replied to Mr James’ email and advised that if Mr James wanted to apply for an adjournment he should appear in Court on 30 October 2013 and make that application.

8    On 30 October 2013 Mr James appeared and applied for the hearing to be vacated. Mr Haines, who again appeared for the respondent, did not oppose the application. Given that no appeal book or written submissions had been filed the hearing obviously could not proceed. Given that fact and that there was no opposition to the adjournment, the Court acceded to the adjournment application and made a series of further directions in relation to the filing of an appeal book and submissions by Mr James. The orders included that Mr James file and serve the appeal book and a written outline of submissions by 20 November 2013. The matter was listed for further directions on 21 November 2013.

9    In the course of the adjournment application made on 30 October 2013, the Court made it abundantly clear to Mr James that, if he did not comply with the orders for the filing of the appeal book and submissions and sought a further adjournment of the hearing, he would have to provide a very good explanation for why it was necessary for the matter to be further adjourned. Mr James was also advised that any such explanation would be required to be provided in an affidavit, which would be the subject of careful and critical examination by the Court. It was made abundantly clear again to Mr James that non-compliance with the orders could result in the appeal being summarily dismissed.

10    On 20 November 2013 at 4.56 pm, my associate received an email from Mr James. It reads as follows:

Dear parties,

I refer to the above and note that the matter is listed for Directions at 930 am on Thursday, 21 November 2013.

On 8 November 2013, I had to leave for overseas on an urgent basis to visit a friend who was admitted into hospital in Dubai. I obtained the consent of the trustee for the travel.

I had excepted to return to Australia at the start of this week but due to complications with my friend I now cannot return in time for the directions hearing.

I am trying to arrange for a solicitor to appear on my behalf and will advise if this successful.

I ask the matter be adjourned for two weeks to allow me to return to Australia.

(errors in original)

11    My associate responded to that email shortly after it was received. Mr James was advised that there was no consent to the adjournment and that Mr James should appear himself or retain a lawyer to appear for him at the directions hearing on 21 November 2013 if he wanted to apply for an adjournment. There followed a further email exchange in which Mr James, in my view quite inappropriately, requested reasons for the position that was taken by the Court. My associate replied to the email and again indicated that if Mr James wanted to apply for an adjournment he should appear in Court himself, or by his representative, on 21 November 2013.

12    When the matter was called on before me this morning Mr James did not appear. I requested the court officer to call his name outside Court three times. That was done and there was no appearance. Based on the email exchange referred to earlier, it would appear to be likely that Mr James is still in Dubai. There is, however, no evidence before the Court by affidavit explaining the non-appearance of Mr James or his non-compliance with previous directions.

13    No appeal book has been filed. No submissions have been filed by Mr James. It is now over nine months since the sequestration order was made. Mr James has done nothing to advance his appeal or prepare the matter for hearing.

14    The absence of an appeal book and submissions must be considered in the light of the fact that, on one view, this is a very straightforward matter. There was very limited evidence before the then Federal Magistrate and the judgment and reasons for the making of the sequestration order are very brief. It is apparent from the notice of appeal that the ground of appeal is a very short point relating to a finding made by the Federal Magistrate about the absence of evidence about the value of a relevant property. Any appeal book would be fairly slim and easy to compile, even for an unrepresented litigant. It would also be fairly straightforward to prepare some written submissions in support of the argument that is proposed to be advanced on appeal, again even for an unrepresented litigant. My observations of Mr James are that he is an intelligent and articulate person.

15    If the matter is adjourned today and further directions are made in relation to an appeal book and submissions, it is highly unlikely, even on a best case scenario, that the matter would be heard before mid to late February 2014. That is over a year after the sequestration order was made. This must also be considered in the context of what has been said to Mr James on the previous occasions this matter has been in Court and the fact that the only explanation that has been given for his non-appearance today is in email correspondence, not by way of an affidavit. As I said earlier, when Mr James last appeared before the Court it was made abundantly clear to him that any explanation for non-compliance with directions and any adjournment application would need to be contained in an affidavit and would be carefully examined by the Court, even if any further adjournment was not opposed.

16    There is a public interest in the expeditious determination of matters involving bankruptcy. In Cirillo v Consolidated Press Pty Limited (formerly known as Citicorp Australia Ltd) (2007) 245 ALR 374 at [51], it was said:

A related consideration militating against the grant of what would necessarily have been a lengthy adjournment was the public interest in the expeditious determinations of alleged insolvencies. See, e.g. Bryant v Commonwealth Bank of Australia (1996) 134 ALR 460.

17    In Totev and Sfar (2008) 167 FCR 193 at [17] it was said that it is of great importance that bankruptcy matters be dealt with in “a highly expeditious” manner. “Courts exercising bankruptcy jurisdiction must be assiduous in avoiding delay in dealing with any question concerning the making of a sequestration order.” Similar sentiments were expressed in Dunlop v Fishburn [2011] FCA 1194.

18    Provision is made in the Federal Court Rules 2011 (Rules) for the summary dismissal of appeals in certain circumstances. The relevant rule is r 36.74 which provides that:

36.74    (1)    A respondent may apply to the Court for an order that the appeal be dismissed for the failure by an appellant to do any of the following:

(a)    comply with a direction of the Court;

(b)    comply with these Rules;

(c)    attend a hearing relating to the appeal;

(d)    prosecute the appeal.

19    Subrule 36.74(2) provides that an application under subrule (1) is required to be served on the appellant at the appellant’s address for service or personally.

20    Mr Haines, who again appeared for the respondent today, indicated that he did not have instructions to apply for the summary dismissal of the appeal. Nonetheless, r 1.32 of the Rules provides that:

1.32 The Court may make any order that the Court considers appropriate in the interests of justice.

21    In my opinion, r 1.32 is applicable in the circumstances in this case. If the Court considers it appropriate in the interests of justice to dismiss the appellant’s appeal because of his failure to comply with directions, his failure to appear at a hearing relating to the appeal and his failure to prosecute the appeal, the Court can do so pursuant to r 1.32 despite the fact that no application is made by the respondent under r 36.74.

22    The relevant principles relating to the dismissal of an appeal were recently considered by Griffiths J in Singh v The Owners – Strata Plan 11723 (No 4) [2012] FCA 1180.

23    At [39] Griffiths J referred to a number of authorities relating to the summary dismissal of appeals, including Van Reesema v Giameous (1979) 27 ALR 525; Goldie v The Commonwealth of Australia [2004] FCA 973; Dowling v Fairfax Media Publications Pty Ltd (No 2) [2010] FCAFC 28; Shirreff v Beck Legal Pty Ltd (No 3) [2011] FCA 604 and SZISM v Minister for Immigration and Citizenship (2007) 158 FCR 292.

24    Griffiths J summarised the relevant principles in the following terms:

(a)    the power to dismiss an appeal for want of prosecution must not be lightly exercised. Even where an appellant is doing little to prosecute an appeal, every effort should be made to have the appeal heard and determined in a manner which is consistent with the interests of the other parties and the public interest in the administration of justice;

(b)    failure to comply with rules which are designed to ensure that an appeal can be heard in a timely and organised manner may justify dismissal of the proceedings, but that will necessarily depend on the facts and circumstances of each individual case as well as a consideration of other interests which are relevant to the proper administration of justice;

(c)    an unexplained frequent and persistent failure to comply with directions may result in an appeal being dismissed. It is relevant, in this context, to take into account case management considerations of the kind raised by section 37M of the Act;

(d)    another relevant consideration is the prejudice to the respondent of the appellant’s failure to prosecute an appeal in a timely and efficient way; and

(e)    the clear purpose of the relevant provisions in the Act and the 2011 Rules empowering summary dismissal of an appeal is the efficient dispatch of Court business.

25    The reference in Griffiths J’s summary of relevant principles to “case management considerations of the kind raised by section 37M of the Act” is a reference to s 37M of the Federal Court of Australia Act 1976 (Cth) which provides, amongst other things, that:

(1)    The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolute of disputes:

(a)    according to law; and

(b)    as quickly, inexpensively and efficiently as possible.

(Emphasis added)

26    Subsection (2) of s 37M provides that:

(2)    Without limiting the generality of subsection (1), the overarching purpose includes the following objectives:

(b)    the efficient use of the judicial and administrative resources available for the purposes of the Court;

(c)    the efficient disposal of the Court’s overall caseload;

(d)    the disposal of all proceedings in a timely manner.

(Emphasis added)

27    In the circumstances of this case, I would add to the list of relevant considerations referred to by Griffiths J the public interest involved in dealing with bankruptcy proceedings in a timely fashion.

28    In my opinion, having regard to the unfortunate history of these proceedings, the lengthy delay since the sequestration order was made and the fact that Mr James has done nothing at all to advance this appeal between the time when he first applied for an extension of time to file his appeal and today, it is in the interest of justice for this appeal to be summarily dismissed. The Court has no confidence whatsoever that Mr James, even if given some further time, will do anything to prosecute this appeal in a timely fashion or at all.

29    Mr James has been warned on two occasions that his failure to comply with directions in relation to the hearing of this appeal might result in the dismissal of the appeal. He was warned in the clearest of terms on the last occasion that if he did not comply with the directions, he should at the very least proffer his explanation in an affidavit. I do not consider it appropriate, other than in exceptional circumstances, for an adjournment application to be foreshadowed or made by way of email correspondence from one party to an associate of a Judge of this Court without the prior consent or approval of the other party. I consider it even less appropriate that the party then continue the unilateral correspondence by seeking reasons for not acceding to the initial request. There were no exceptional circumstances here. If Mr James wanted to apply for an adjournment, particularly given what had happened previously, he was required to make that application in open court supported by evidence.

30    In all the circumstances, I consider that it is appropriate in the interests of justice for this appeal to be dismissed, given Mr James’ unexplained failure to comply with directions, his failure to appear today and his failure to prosecute this appeal with any due diligence or expedition. Accordingly, the orders that I propose to make are that the appeal be dismissed and that the appellant pay the respondent’s costs.

Associate:

Dated:    21 November 2013