FEDERAL COURT OF AUSTRALIA

Sims v Suda Ltd [2015] FCA 967

THE COURT ORDERS THAT:

1.    The applicant’s application for an extension of time and leave to appeal filed on 16 April 2015 is dismissed.

2.    The applicant is to 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    The applicant has sought an extension of time and leave to appeal from the judgment of the primary judge in WAD 255 of 2014, delivered on 27 March 2015.

2    The primary judge’s judgment was an interlocutory judgment in that it struck out the applicant’s statement of claim and dismissed his application under s 31A of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act). The applicant required leave to commence an appeal and the leave to appeal needed to be applied for within 14 days.

3    On 16 April 2015, the applicant filed his application for an extension of time and leave to appeal, together with an affidavit in support thereof. The application was made pursuant to r 35.14 of the Federal Court Rules 2011 (the Rules). The applicant also filed a draft notice of appeal and a statement saying that he wanted to make oral submissions in support of his application.

4    The matter was listed for hearing on 4 June 2015. When the matter was called the applicant did not appear. The hearing was adjourned to 25 June 2015.

5    After the hearing on 4 June 2015, the respondent’s solicitor wrote to the applicant advising the applicant that the hearing had been adjourned to 25 June 2015 and that the respondent’s solicitor had been instructed to oppose any further adjournment should the applicant fail to appear at the hearing on 25 June 2015. The applicant failed to appear at the hearing on 25 June 2015.

6    At the hearing on 25 June 2015, I made orders that by 3 July 2015, the respondent was to file and serve submissions in support of its contention that the applicant’s application for an extension of time and leave to appeal, be dismissed; and for the applicant to file and serve submissions in response by 17 July 2015.

7    The respondent filed its submissions on 3 July 2015 and served the submissions on the applicant together with a covering letter from the respondent’s solicitor that confirmed that the applicant’s submissions in response were due on 17 July 2015.

8    The applicant failed to file his submissions in response by 17 July 2015.

9    The respondent’s solicitor then wrote to the applicant on 20 July 2015 informing the applicant that the respondent was willing to afford the applicant an extension of time till 21 July 2015 to file his submissions in response. The applicant has not filed any submissions in response.

10    On 27 July 2015, the respondent filed supplementary submissions contending that the applicant’s application should be dismissed, pursuant to r 35.32 of the Rules, on the basis that the applicant had failed to attend both hearings in the proceeding and has failed to file submissions as ordered by the Court.

11    Rule 35.32 of the Rules provides that:

A respondent to an application under rule 35.12 or 34.14 may apply to the Court for an order that the application be dismissed:

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

(b)    for a failure to comply with these Rules; or

(c)    for a failure to attend a hearing relating to the application; or

(d)    for want of prosecution.

the decision of the primary judge

12    In his statement of claim, the applicant attempted to plead what he referred to as three claims. The primary judge categorised the claims broadly as breach of contract based on an indemnity agreement, failure to pay the applicant money for his “inventive steps”, and fraud. In respect of each of the claims there was an attempt to couch the claim in the alternative as a claim for misleading or deceptive conduct in contravention of the Trade Practices Act 1974 (Cth) or the Australian Consumer Law.

13    The primary judge struck out the pleading as not complying with the rules of pleading. However, the primary judge also had regard to the underlying strength of each of the claims made by the applicant and determined that each of the claims should be dismissed under s 31A of the Federal Court Act as not demonstrating a reasonable prospect of success.

14    In addition, the primary judge ordered that the applicant’s statement of claim should be removed from the Court file on the basis that the material was scandalous.

15    The applicant has set out the grounds of his complaint about the primary judge’s orders in different terms in three different documents.

16    In his application for an extension of time under the heading “Grounds of Application”, the applicant has stated:

1.    The Learned Primary Judge erred at law and fact in finding the Appellants Action was an abuse of process, was individually and in combination wholly without merit and should have been determined summarily pursuant to:

a.    Section 18 of Australian Consumer Law; (ACL)

b.    Section 4(2)(a) of the Competition and Consumer Act 2010; (CCA)

c.    Section 184(1)(a)(b)(c)(d) of the Australian Corporations and Securities Legislation.

2.    The Learned Primary Judge should have used his position as Judge and not struck out the Appellants pleadings and avoided the stultifying the development of Law…

17    In his affidavit of 15 April 2015, the applicant has set out the following grounds of complaint:

1.    The Learned Primary Judge erred in fact and Law in finding against the Appellant in Claim one of the Action as abuse of process, vexatious, Scandalous and frivolous and should have found pursuant to Section 18 of Australian Consumer law, and, or Indemnity…

2    The Learned Primary Judge erred in fact and law in finding against the Appellant in Claim two of the Action as an abuse of process, Vexatious, Scandalous and frivolous and should have found pursuant to Section 18 Australian Consumer law and, or 184(1)(b) of the Australian Corporations and Securities Legislation and reserved his judgement until the higher Court ruling on the Appellants rights to litigate “Quantum Merit” [sic]…

3.    Learned Primary Judge erred in fact in finding the Appellants Third Claim in the Action was the Action as an abuse of process, Vexatious, Scandalous and frivolous and should have found pursuant to Section 18 Australian Consumer Law and, or 184(1)(b) of the Australian Corporations and Securities Legislation.

4.    Learned Primary Judge erred at Law in uplifting the Appellants Affidavit and attachments which attachments are copies of the records of the Respondent and should have granted the Appellant his wanted Orders to inspect, copy and authenticate the Respondents records to the Court pursuant to the evidence Act and not stultify the development of Law.

5.    The Learned Primary Judge erred in fact in finding against the Appellant by summary judgement and caused injustice against a person with disability and should have found pursuant to Human Rights Legislation, abuse of a 72 Year Old person suffering chronic health defects, illiteracy in Law, a person in need of assistance where assistance and explanation is required.

6.    Learned Primary Judge erred at law and fact in finding the failure of the Appellant to properly plead fraud and should have granted leave for the Appellant to seek assistance and re plead the Action.

18    The third document setting out the applicant’s complaints is in his draft notice of appeal. In that document, the applicant has expanded upon the “Grounds of Application” as described in his affidavit. (See, [16] above.) The draft notice of appeal has the flavour of submissions.

19    The materials which have been filed by the applicant, essentially, comprise assertions at a highly generalised level which do not identify any specific errors allegedly made by the primary judge.

20    This is subject to one exception, and that relates to the second complaint referred to in the applicant’s affidavit of 15 April 2015. (See, [17] above.) That complaint appears to relate to the fact that the primary judge referred in his reasons for judgment to a decision of Barker J in Sims v Chong [2014] FCA 1069 (Sims v Chong) which was at the time of the hearing, the subject of appeal to the Full Court. The applicant’s complaint appears to be that the primary judge should have adjourned the hearing to await the outcome of the Full Court appeal in Sims v Chong.

21    In Sims v Chong, Barker J had relied upon the decision of Registrar Boyle in Sims v Suda Ltd [2014] WASC 3 (Sims v Suda). In that case, Registrar Boyle struck out and dismissed the applicant’s claim made in the Supreme Court for non-payment in respect of the “inventive steps”. In Sims v Chong, Barker J dismissed the applicant’s claim on the basis that the applicant was attempting to re-litigate the same case which Registrar Boyle had dismissed.

22    The primary judge referred to both Sims v Suda and Sims v Chong and found that, by reason of these decisions, the matters raised by the applicant’s claim for non-payment for his “inventive steps”, were, in part, the subject of res judicata or Anshun estoppel.

23    The primary judge went on to find that, in any event, the applicant’s claims made in this Court had no reasonable prospects of success on their merits.

24    As it has transpired, after the primary judge delivered his decision in WAD 255 of 2014, the Full Court upheld the applicant’s appeal in Sims v Chong. In so doing, the Full Court also observed that the decision of Registrar Boyle would not give rise to a res judicata in respect of the applicant’s claims dismissed by Registrar Boyle.

25    However, in my view, this does not help the applicant because the primary judge also had regard to the underlying prospects of success of the claims advanced by the applicant, in dismissing his application under s 31A of the Federal Court Act. The applicant has not on the materials before the Court identified any specific respect in which the primary judge erred in coming to that view, whether in relation to the so-called second claim, or indeed, in relation to any other of the claims made by the applicant in the proceeding.

26    In my view, the decision of the primary judge is not attended with sufficient doubt to warrant the grant of an extension of time to appeal or leave to appeal.

27    Further, and, in any event, I would also dismiss the applicant’s application under r 35.32 by reason of the applicant’s failure to attend the hearing on 25 June 2015. That was the second hearing which the applicant had failed to attend, without him giving any explanation either to the respondent or to the Court. In my view, the unexplained failure of the applicant to attend that hearing when seen in the context of the unexplained failure to attend the first hearing, and the unexplained failure to comply with the other directions of the Court, indicates either an inability or unwillingness on the part of the applicant to cooperate with the Court in disposing of the application in a timely manner (Lenijamar Pty Ltd v AGC (Advances) Limited (1990) 27 FCR 388 at 396). This warrants the dismissal of the applicant’s application dated 16 April 2015.

28    It follows that the applicant’s application for an extension of time and leave to appeal is dismissed. The applicant is to pay the respondent’s costs.

Associate

Dated:    28 August 2015