FEDERAL COURT OF AUSTRALIA

Kanakaridis v Westpac Banking Corporation [2015] FCA 1034

THE COURT ORDERS THAT:

1.    The application for leave to appeal from the orders of this Court made on 7 August 2015 be refused.

2.    The Applicants pay Respondent’s costs of the application.

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

THE COURT ORDERS THAT:

1.    The application for an extension of time within which to apply for leave to appeal from orders of this Court made on 1 May 2015 be refused.

2.    The Applicants pay the Respondents’ costs of the application.

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

REASONS FOR JUDGMENT

1    Before the Court are two related applications. The applicants, Mr Savvas Kanakaridis and Ms Qin Qin Hou, seek leave to appeal from interlocutory orders of this Court (Beach J) made in Kanakaridis and Another v Westpac Banking Corporation and Others VID 149 of 2015 (“the substantive proceeding”) as follows:

(a)    in VID 441 of 2015, the applicants seek leave to appeal from orders made on 7 August 2015; and

(b)    in VID 476 of 2015, the applicants seek leave to appeal from orders made on 1 May 2015 and seek an extension of time within which to do so.

VID 476 of 2015 is brought against three respondents, namely Westpac Banking Corporation (“Westpac”), the Department of Land, Water and Planning and the Department of Justice and Regulation, while VID 441 of 2015 is only brought against Westpac. It is only Westpac that has taken an active role in defending the applications.

2    The applications came on for hearing on 15 September 2015 at 10:15 am. Prior to the hearing Mr Kanakaridis had informed chambers and the other parties by email that he was not available to attend the hearing because he was away travelling. In the early morning on the day of the hearing he forwarded a medical certificate to chambers which, although the certificate did not expressly state so, indicated that he claimed to be unfit to attend the hearing. I treated his emails and his provision of a medical certificate as an application for an adjournment.

3    When the matter was called inside and outside the Court the applicants did not appear. I stood the matter down until 11 am and I requested counsel for Westpac to telephone Mr Kanakaridis to ascertain whether he intended to appear. When the hearing resumed counsel informed me that his solicitor’s attempts to contact Mr Kanakaridis had been unsuccessful. The applicants did not appear when the matter was again called.

4    In my view the application for adjournment must be refused. Because of the applicants’ failure to attend the hearing I have dismissed the applications. I have ordered costs against the applicants.

The procedural history

The orders being appealed

5    On 7 August 2015 the substantive proceeding came on for interlocutory hearing before Justice Beach. On that date, an application by Westpac seeking summary dismissal of the proceeding was listed for hearing. I have taken what follows from the transcript of that hearing.

6    By email to his Honour’s chambers prior to the hearing, Mr Kanakaridis had requested an adjournment and provided a medical certificate which indicated that he was unwell. The applicants did not file an affidavit providing evidence in support of the application for an adjournment and they did not appear.

7    Westpac opposed adjournment of the hearing and relied on an affidavit of Annette Leigh Gaber, a partner of Gadens Lawyers, the solicitors for Westpac, affirmed 7 August 2015. In reliance on the affidavit Westpac argued that Mr Kanakaridis, and through him Ms Hou, had shown a pattern of conduct of trying to avoid substantive hearings by the production of medical certificates just prior to the hearing. His Honour granted the adjournment application, but made orders requiring the applicants to file evidence on affidavit should they seek a further adjournment, including by requiring that any doctor that certified that the applicants were unfit to attend Court should swear an affidavit and be available for cross examination. His Honour made the following orders (“the August Orders”):

1.    The first respondent’s application be adjourned to 10 September 2015 at 11:00am.

2.    Any application by the applicants, or any of them, to further adjourn the first respondent’s application must be communicated to the first respondent’s solicitors in writing by 4:00pm on 7 September 2015. Such application must be accompanied by an affidavit of any applicant seeking an adjournment outlining the basis for the adjournment and exhibiting any relevant documents in support.

3.    If any application made under paragraph 2 above is made on medical grounds, each applicant seeking the adjournment must also file and serve by 7 September 2015 a medical certificate and a detailed medical report outlining the applicant’s condition, prescribed medications, prognosis and capacity to appear in court, such medical certificate and medical report to be exhibited to an affidavit by the relevant treating doctor from whom the certificate and report has been obtained which sets out her or his qualifications and area(s) of specialisation (if any).

4.    Any treating doctor who gives an affidavit under paragraph 3 above is to be provided with a copy of this order by any applicant seeking an adjournment and must be available to attend the hearing of the adjournment application to be cross examined by the first respondent’s representatives on 10 September 2015 at 11:00am.

5.    By 21 August 2015, the first respondent file a short outline of 2 – 3 pages which responds to the first applicant’s affidavit sworn on 7 August 2015 and running to 147 pages.

6.    The applicants pay the first respondent’s costs of the adjournment, including costs thrown away.

8    Previously, in Orders 4 and 5 of orders made at a directions hearing on 1 May 2015 (“the May Orders”) his Honour ordered that the Registrar of Titles be substituted as the second respondent because he considered that was the correct party, and ordered the removal of the Department of Justice and Regulation as the third respondent on the basis that the claim against it was misconceived.

The applications for leave to appeal against the Orders

9    Despite being successful in their applications to adjourn the 7 August 2015 hearing, on 21 August 2015 the applicants filed an application for leave to appeal the August Orders. They also filed an application for leave to appeal the May Orders together with an application for extension of time to appeal.

10    The August Orders concerned the hearing of Westpac’s summary dismissal application, which was fixed the hearing on 10 September 2015. The application for leave to appeal did not stay the August Orders and the 10 September 2015 hearing date remained on foot. It was therefore appropriate to deal with that application urgently and I listed the applications for hearing on 9 September 2015 at 10:15 am.

The applications to adjourn the hearing of the leave applications

11    By email on 4 September 2015 my chambers requested the parties to confirm the suitability of the hearing date at their earliest convenience. Ms Gaber speedily confirmed Westpac’s availability but my chambers received no response from the applicants to that email or to a further email on 7 September 2015. Nor did chambers receive any response to several telephone messages left for the applicants.

12    On 8 September 2015 at 12:23 pm, the day before the hearing date, Mr Kanakaridis emailed chambers (copying the other parties) and stated:

Sorry for the late reply but that time is not suitable for us as we have a hearing listed in the supreme court [sic] at the same time.

13    At 12:58 pm the same day, in response to a telephone enquiry from my chambers as to whether the applicants would be available if the hearing was moved to the afternoon of 9 September 2015, Mr Kanakaridis sent an email to chambers (copying the other parties) in which he stated:

As this is an obvious set up and a conspiracy between the court and Gadens to squeeze the date of the appeal in to the 9th of September so that it is heard before the date of the trial being the 10th of September, we are not amused.

Furthermore, we are very concerned about the court’s handling of the matter with relation to the other parties involved.

It is obvious that Gadens is running the court and it is disgraceful.

14    Because of the applicants’ asserted unavailability for the 9 September 2015 hearing I decided that the application would not proceed on that date. I adjourned the hearing to 15 September 2015 at 10:15 am and chambers so informed the parties by email.

15    I interpose to note two matters of which I later became aware:

(a)    in an affidavit affirmed on 15 September 2015 Ms Gaber deposed that the Supreme Court of Victoria list showed that proceeding SCI 2014 03447 Kanakaridis and Hou v Australian and New Zealand Banking Group Ltd was listed for hearing in the Practice Court on 9 September 2015 at 10:30 am. The affidavit annexed the Order of Justice McDonald, made on 10 September 2015 dismissing the proceeding on the basis that there no appearance for Mr Kanakaridis or Ms Hou. Ms Gaber deposed that although the order was made and authenticated on 10 September 2015 she understood that it related to the hearing on 9 September 2015. I infer that Mr Kanakaridis was not, in fact, occupied in a Supreme Court hearing on 9 September 2015 and was not therefore unavailable to attend the hearing before me; and

(b)    on 14 September 2015 Mr Kanakaridis sent an email to chambers (copying the other parties) which stated:

Please see attached charges as made against various parties or conspiring and attempting to pervert the course of justice and for giving false testimony in a proceeding.

Mr Kanakaridis attached copies of criminal charges and summonses that he purported to have made against Justice Beach, Mr Hay of counsel for Westpac, Westpac, the Department of Justice and Gadens Lawyers. On the face of three of the charge sheets, Mr Kanakaridis filed them at Melbourne Magistrates’ Court, in person, on 9 September 2015. Again, I infer that Mr Kanakaridis was not, in fact, unavailable to attend the hearing before me on 9 September 2015.

16    In the 8 September 2015 email to the parties chambers sought their advice as to whether there were any difficulties with the 15 September 2015 listing. Ms Gaber speedily confirmed Westpac’s availability. However, at 4:25 pm that day chambers received an email from Mr Kanakaridis in which he stated:

We Will Not be available until After the 5th of October 2015

(Emphasis in original.)

17    Mr Kanakaridis’ email did not assert any basis for his unavailability and Westpac opposed an adjournment of the duration sought. As Westpac said in response, Mr Kanakaridis filed no evidence which outlined his unavailability for the hearing or for the period up to 5 October 2015.

18    Westpac had earlier filed an affidavit of Ms Gaber affirmed 3 September 2015. She annexed to that affidavit her earlier affidavit affirmed on 7 August 2015, filed in the substantive proceeding, in which she deposed that the applicants had made a number of previous adjournment applications on medical grounds, namely:

(a)    an application for adjournment of Westpac’s application for summary judgment, before AJ Lansdowne in the Supreme Court on 2 April 2014. An adjournment was refused;

(b)    an application for adjournment of the appeal against the summary judgment, before the Court of Appeal on 27 March 2015. An adjournment was allowed;

(c)    an application for adjournment of the appeal against the summary judgment, before the Court of Appeal on 1 April 2015. An adjournment was refused;

(d)    an application for adjournment of Westpac’s application for summary judgment, before Beach J in this Court on 12 June 2015. An adjournment was allowed;

(e)    an application for adjournment of an application to stay Westpac’s Supreme Court judgements, before Emerton J in the Supreme Court on 16 June 2015. An adjournment was refused.

Westpac relied upon this material to argue before Beach J (and before me in the hearing of the present applications) that it revealed a pattern of conduct in which the applicants sought to adjourn hearings so that substantive matters could not be dealt with.

19    On 8 September 2015 I made orders in proceedings VID 441 of 2015 and VID 476 of 2015. Orders 2 and 3 provided:

…

2.    Should the applicants wish to adjourn the hearings they must, by 5.00 pm on Friday, 11 September 2015, file and serve an application for an adjournment supported by an affidavit setting out the grounds for such application.

3    If the application for adjournment is made on medical grounds, it must include as an attachment a short report from a medical practitioner outlining the medical condition relied on together with the prescribed medications, and provide an opinion as to the applicants’ capacity to appear in Court on 15 September 2015. The medical practitioner who provides such a report must be available to attend for cross-examination on 15 September 2015 at 10.15 am.

20    On 8 September 2015 chambers sent an email to Mr Kanakaridis (copying the other parties), enclosing the orders and stating:

I refer to your email of 8 September 2015 in which you advise you will not be available to prosecute your two applications for leave to appeal until after 5 October 2015.

Please note that your applications have been listed for hearing on Tuesday, 15 September 2015 at 10:15 am. Your email stating that you are not available until after 5 October 2015 does not suffice to adjourn that hearing, amongst other things because it is unsupported by any evidence.

His Honour has made orders in the form attached to this email. The matters will proceed on 15 September 2015 unless an application for an adjournment in satisfactory form is made in an appropriate time (as provided in the orders), and is acceded to by his Honour. The respondent is entitled to be heard on the application.

Please understand that the applications for leave to appeal are yours to prosecute. Should you fail to comply with orders, fail to attend the hearing or fail to prosecute the appeals with appropriate diligence, they are liable to be dismissed pursuant to the Federal Court Rules 2011 (Cth).

(Emphasis added.)

21    The applicants did not make an application for an adjournment supported by evidence on affidavit. There was no further contact by Mr Kanakaridis with chambers until the day before the hearing date.

22    On 14 September 2015 at 12:13 am Mr Kanakaridis sent an email to chambers (copying the other parties) and said:

The Applicants family is on leave until the 5th of October as mentioned previously.

Half the family has already travelled to China and the rest is also travelling and on leave until the end of the school holidays which is on the 5th of October 2015

It was not correct that Mr Kanakaridis had previously informed chambers that his family was on leave. In my view the email intimated that Mr Kanakaridis was “travelling” and away until 5 October 2015, and therefore unavailable for the hearing on 15 September 2015.

23    On the same day at 9.20 am chambers emailed Mr Kanakaridis (copying the other parties) and said:

I refer to your email sent early this morning regarding the hearing listed for tomorrow.

I reiterate what I have said in my email of 8 September 2015. If you seek to adjourn the hearing you must make an application in satisfactory form, supported by an affidavit.

You have not provided a sworn affidavit as to your whereabouts or availability to attend tomorrow’s hearing.

If you intend to seek an adjournment of tomorrow’s hearing please file and serve an application and supporting affidavit urgently.

24    On 15 September 2015 at 2.35 am Mr Kanakaridis sent an email to chambers (copying the other parties). The email itself was blank but it attached a medical certificate of Dr Nikoloz Chanturia of St Kilda Medical Deputising Services dated that day which stated:

This is to certify that Mr Savvas Kanakaridis is receiving medical treatment and for the period from Monday, 14 September 2015 to Tuesday, 15 September 2015 inclusive he will be unfit to continue his usual occupation.

Annexed to the medical certificate was a referral by Dr Chanturia to Dr Paul Brown, psychiatrist which stated that Mr Kanakaridis presented with “Depression/Anxiety”. I note in passing that the medical certificate confirmed that Mr Kanakaridis was, in fact, in Melbourne rather than away travelling.

Consideration

25    In reliance on the non-appearance of the applicants Westpac applied to dismiss both applications.

26    Rule 35.33 of the Federal Court Rules 2011 (Cth) (“the Rules”) relevantly provides:

Absence of a party

(1)    If a party is absent when an application under rule 35.12 or 35.14 is called on for hearing, any other party may apply to the Court for an order that:

(a)    if the absent party is the applicant;

(i)    the application be dismissed; or

…

(2)    If a hearing proceeds in a party’s absence and during or at the conclusion of the hearing an order is made, the party who was absent may apply to the Court for an order:

(a)    setting aside or varying the order; and

(b)    for the further conduct of the proceeding.

Rule 35.12 relates to applications for leave to appeal and r. 35.14 relates to applications for extension of time.

27    To similar effect, r. 35.32(c) allows dismissal of an application for leave to appeal or an application for extension of time where the applicant fails to attend the hearing related to the application. In my view the reference in r. 35.32 to r 34.14 is a slip and the reference is intended to be to r. 35.14.

28    The applicants’ failure to attend the hearing occurred in circumstances where they had sought an adjournment, although they did not do so in a way that complied with my orders. The Court has a wide discretion under the Rules. In Lenjamar Pty Ltd v AGC Ltd 27 FCR 388 at 395-6, dealing with a precursor to the applicable Rules, Wilcox and Gummow JJ noted that Court operates under a case management system in which the judge has an unconfined discretion in relation to orders that may flow from a failure to prosecute a proceeding.

29    There is no question that the applicants’ failure to appear need not necessarily lead to dismissal, but in all the circumstances I consider the application for adjournment should be refused. I do so for the following reasons.

30    First, the applicants sought and obtained an adjournment of the hearing listed for 9 September 2015, in my view on spurious grounds. Mr Kanakaridis asserted that he was unable to attend the hearing in this Court because of a Supreme Court listing. He insinuated that he was required to attend a hearing before that Court when that was not the case and he did not in fact appear at the Supreme Court hearing. I note also that, on the same date that he said he was unavailable to attend the hearing in this Court, he was apparently filing other proceedings in the Melbourne Magistrates Court.

31    Second, when the hearing was adjourned to 15 September 2015 Mr Kanakaridis asserted that he was unavailable to attend any hearing before 5 October 2015. He insinuated that he was away on leave travelling until the end of the school holidays on 5 October 2015. I do not accept that he was away and unavailable to attend the hearing on 15 September 2015 when he attended a St Kilda medical practitioner on 14 September 2015.

32    Third, there was evidence that the applicants had a history of seeking adjournments based on unverified and untested medical certificates filed shortly prior to a hearing. On 8 September 2015 I made orders that any future application for adjournment was required to be supported by an affidavit setting out the grounds, requiring that if it was made on medical grounds the affidavit should attach a short medical report and the medical practitioner was to be made available to attend for cross examination. This requirement was reiterated in an email from chambers.

33    Despite the orders, at 2.35 am in the morning on the day of the hearing, Mr Kanakaridis provided a medical certificate to chambers by email. As I have said, I treated this as an application for adjournment but I do not grant the adjournment sought when:

(a)    the adjournment application was not compliant with my orders. It was not made within the time limit provided in the orders and it was not supported by an affidavit. The medical certificate was not verified by affidavit evidence and Dr Chanturia was not made available for cross-examination as required by the orders;

(b)    the medical certificate did not state that Mr Kanakaridis was unfit to attend Court. It said only that he was “unfit to continue his usual occupation”;

(c)    counsel for Westpac was not afforded an opportunity to test whether Dr Chanturia in fact provided the certificate, or whether Mr Kanakaridis was in fact unfit to attend Court. The applicants had a history of seeking adjournments through the late provision of unverified medical certificates and Westpac was entitled to test the veracity of the conclusions in the certificate: Luck v University of Southern Queensland (No. 4) [2011] FCA 433 at [28] (Bromberg J);

34    Fourth, the applicants’ history of seeking adjournments on medical grounds is relevant because, as the Court of Appeal observed on 1 April 2015, there is “no means of knowing whether the applicants will be any better position in terms of the mental health on any adjourned date.”: Hou and Anor v Westpac Banking Corporation – Ruling (Application for an Adjournment) (Unreported 1 April 2015, Whelan and Beach JJ).

35    Fifth, the application for an adjournment on medical grounds was made on a different basis to that which Mr Kanakaridis initially asserted, namely that he was away travelling. This gave me cause to doubt that he was genuinely unfit to attend Court.

36    Sixth, it is not just the applicants’ interests that must be considered. The respondents are entitled to have the proceeding brought against them dealt with expeditiously. The evidence indicated that Mr Kanakaridis had repeatedly sought to adjourn the various proceedings between the parties that have been on foot.

37    Seventh, the conduct of litigation is not merely a matter for the parties. It is also one for the Court and there is a need to avoid disruption to the Court’s list with consequent inconvenience to the Court and prejudice to the interests of other litigants waiting to be heard: Sali v SPC Ltd (1993) 67 ALJR 841 at 849 (Toohey and Gaudron JJ) cited with approval in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at [93] (Gummow, Hayne, Crennan, Keifel and Bell JJ). The applications were afforded two urgent hearing dates before me in order to accommodate the applicants’ interests. They said that they were unavailable on either date but I am not satisfied that was so.

38    The application for an adjournment must fail. Based on the failure of the applicants to appear I have dismissed the application for leave to appeal in VID 441 of 2015 and the application for leave to appeal and for extension of time in VID 476 of 2015, doing so pursuant to rr 35.33 and/or 35.32.

39    It is unnecessary to go further, but it is perhaps worth noting that the applications for leave to appeal appear to have little or no merit. I will not traverse the detail of my view in this regard as it is not the basis for my decision. It suffices to indicate my opinion that the material filed by the applicants does not indicate grounds for sufficient doubt regarding whether the primary judge made an error in the exercise of the discretion of the type described in House v The King (1936) 55 CLR 499 at 505 (Dixon, Evatt and McTiernan JJ). That is, whether the primary judge acted upon a wrong principle, allowed extraneous or irrelevant matters to guide or affect him, mistook the facts, or failed to take into account some material consideration.

40    Further, the material does not indicate that substantial injustice would result if, the decision being supposed to be wrong, leave to appeal was refused. A tight rein is to be kept on appellate interference in matters of practice and procedure: Décor Corporation Pty Ltd and Another v Dart Industries Inc (1991) 33 FCR 397 at 398-400 (Sheppard, Burchett and Heerey) JJ; Adam P Brown Mail Fashions Pty Ltd v Philip Morris Inc and Another (1981) 148 CLR 170 at 177 (Gibbs CJ, Aickin, Wilson and Brennan JJ).

41    Assuming the August Orders to be wrong, I find it impossible to see how any substantial injustice could result from them. They established a case management regime to apply to any future applications for adjournment, in circumstances where there was evidence that the applicants had a history of seeking adjournments on medical grounds without establishing a proper evidentiary basis for the request. Assuming the May Orders to be wrong, again, no substantial injustice is shown. Those orders substituted another party for the second respondent and removed the third respondent as a party. The applicants’ concerns in that regard can be taken up in any appeal from the final determination of the proceeding.

Associate:

Dated:    16 September 2015