FEDERAL COURT OF AUSTRALIA

Dahler v Australian Capital Territory (No 2) [2016] FCA 1100

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed pursuant to s 25(2B)(ba) and (bb) of the Federal Court of Australia Act 1976 (Cth).

2.    Costs be reserved.

THE COURT NOTES THAT:

3.    The parties are to liaise forthwith as to the making of any timetabling orders for the provision of written submissions and the taking of any other steps with respect to the issue of costs in the event that the respondents seek costs and agreement is not reached as to the appropriate order as to costs.

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

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

1    By an interlocutory application filed on 22 February 2016, the respondents seek summary dismissal of this appeal pursuant to an application made under r 36.74 of the Federal Court Rules 2011 (Cth) (the Rules) on the grounds that the appellant, Mr Clinton Dahler, has not complied with a direction of the Court and has failed to prosecute the appeal in a timely manner. The power to dismiss upon such an application is found in s 25(2B)(ba) and (bb) of the Federal Court of Australia Act 1976 (Cth) (FCA).

2    For the reasons set out below, the application for summary dismissal should be allowed. The question of costs is reserved, in line with the position accepted by the parties at the hearing.

2.    EVIDENCE RELIED UPON

3    In support of the interlocutory application, the respondents rely upon the affidavit of Daniel Ng sworn on 22 February 2016. Mr Ng is a solicitor employed by the respondents’ legal representative, the ACT Government Solicitor.

4    The appellant resists the application and seeks to rely upon a bundle of documents tendered at the hearing, together with correspondence in which an application was made to the Registrar for assistance with settling the index to the Appeal Book by the appellant’s counsel, Ms Keys, on 26 June 2015 and the response by the Court on 6 August 2015. The appellant also seeks to rely upon the affidavits sworn or affirmed by the appellant on 17 October 2015 and 19 December 2015. I note that, while these affidavits were read without objection, much of the content of the second affidavit in particular was argumentative and in the nature of submissions.

3.    CONDUCT OF THE PROCEEDINGS

5    It is necessary given the nature of the respondents’ application and the seriousness of the step which they invite this Court to take, to set out the history of the conduct of the appeal in some detail.

3.1    Conduct of the appeal from the Federal Circuit Court decision before the first directions hearing

6    By a notice of appeal filed on 22 June 2015, the appellant appeals from the orders of the Federal Circuit Court given on 5 June 2015 at Sydney. By that judgment, the Federal Circuit Court dismissed a claim alleging a contravention of s 340 of the Fair Work Act 2009 (Cth) (Fair Work Act) for unlawful dismissal from the appellant’s employment on the ground that the reason why he was dismissed was not a proscribed reason under the Fair Work Act. Rather, his dismissal was by reason of “the proven misbehaviour of Mr Dahler… not the process he participated in which established that misbehaviour”: Dahler v Australian Capital Territory & Anor (No 2) [2015] FCCA 845; (2015) 296 FLR 363 at 367 [21] (Judge Driver). The Federal Circuit Court also dismissed a claim alleging a contravention of s 351 of the Fair Work Act.

7    On 26 June 2015, Ms Keys sent an email to the Registrar of the Court that stated:

In accordance with Federal Court Rules 33.24, the Appellant applies for the Registrar’s assistance to settle the index to Parts A and B of the appeal book in connection with the appeal filed on 22 June 2015.

8    On 7 July 2015, the appellant filed a “supplementary” (i.e. amended) notice of appeal.

3.2    The timetabling and other orders made by Buchanan J on 15 July 2015

9    Subsequently on 15 July 2015, Buchanan J struck out certain paragraphs of the supplementary notice of appeal in upholding the respondents’ objection to competency filed on 2 July 2015. The supplementary notice of appeal as it stands following the orders of Buchanan J contends that the appeal in relation to the final judgment is also founded on a number of interlocutory judgments which the appellant seeks also to set aside.

10    At the same time, Buchanan J also made orders in accordance with Practice Note APP2 for the preparation of the appeal and its listing for hearing in Canberra for one day on a date to be fixed during the Full Court and Appellate Sitting period 2 to 27 November 2015 before a single judge or a Full Court. Pursuant to those orders, the appeal was listed for hearing initially on 23 November 2015. Based on that hearing date, the orders made by Buchanan J required:

(1)    the appellant to file and serve his outline of submissions no later than 26 October 2015 (being 20 business days before the hearing of the appeal);

(2)    the respondents to file and serve their outline of submissions and materials to be included in Part C to the Appeal Book no later than 4.00pm on 2 November 2015 (being 15 business days before the hearing of the appeal);

(3)    the appellant to file and serve his submissions in reply no later than 4.00pm on 9 November 2015 (being 10 business days before the hearing of the appeal);

(4)    the appellant to file and serve Part C of the Appeal Book no later than 4.00pm on 16 November 2015 (being 5 business days before the hearing of the appeal);

(5)    the appellant to file and serve his list of authorities by 16 November 2015 (being 5 business days before the hearing of the appeal); and

(6)    the respondents to file and serve their list of authorities no later than 17 November 2015 (being 4 business days before the hearing of the appeal).

3.3    The initial delay in providing the Appeal Book index and issue as to whether the appeal should be heard by a Full Court

11    On 21 July 2015, the respondents filed a Status Report on behalf the parties. While it later transpired that this version of the report was sent in error (see [13] below), that report relevantly identified that the “Appellant has sought assistance from Registrar” in response to the question whether the Appeal Book index had been settled.

12    On 6 August 2015, a legal case manager of the Court responded to Ms Keys’ email of 26 June 2015 (see [7] above) explaining the delay and advising that:

If the appellant seeks a settlement of index appointment, the Court can arrange one, but will do so once the draft indexes have been provided to the Court after consultation about the draft indexes with the respondent for comments. If there is no agreement in respect of the draft indexes, please advise so that further steps can be taken.

Please provide the draft indexes for Parts A and B at your earliest convenience, as outlined above.

13    On 3 September 2015, the respondents’ solicitors sent an email to the Registry advising that the Status Report sent to the Court on 21 July 2015 had been sent in error, since it did not reflect the parties’ position as to whether the appeal be heard by a single Judge or the Full Court. The email attached the correct (agreed) version of the Status Report, stating that the appellant’s position was that the matter be listed before the Full Court.

14    Later on 3 September 2015, the Court sent an email to the parties’ legal representatives in response explaining that:

The constitution of the Court is a matter for the Chief Justice and His Honour determined that the matter be heard by a single judge. The Chief Justice determined this on 17 July 2015, following the case management hearing before Buchanan J on 15 July 2015.

3.4    The proposed further supplementary notice of appeal and continued failure to provide the draft index to the Appeal Book

15    On 30 September 2015, the Federal Circuit Court made an order that the appellant’s barrister, Ms Keys, personally pay the respondents’ costs of five interlocutory applications in the proceedings below: Dahler v Australian Capital Territory (No 3) [2015] FCCA 2615 (Dahler (No 3)).

16    On 13 October 2015, Ms Keys emailed the respondents’ solicitors advising that an interlocutory application would be filed shortly to seek leave to file a further amended supplementary notice of appeal and foreshadowing an application to vacate the hearing of the appeal on 23 November 2015. That email provided:

A Supplementary Notice of appeal was lodged on behalf of Clinton Dahler with the Federal Court Registry in Sydney yesterday, seeking to additionally found the appeal on the interlocutory costs judgment ‘delivered’ on 30 September 2015, which Judge Driver’s Associate emailed to me on 1 October 2015.

However, the Registry did not accept the document, advising that Mr Dahler needed to file an Interlocutory Application seeking leave to extend time (from 28 days after the judgment on 5 June 2015) in which to file a Further Amended Supplementary Notice of appeal, supported by an affidavit attaching a draft further amended Supplementary Notice of Appeal. For your information, I have attached a copy of the draft Further Amended Supplementary Notice of Appeal.

I have made arrangements to meet with Mr Dahler over the weekend (as soon as he is available) to settle the Interlocutory Application and supporting affidavit and anticipate that the Interlocutory Application will be filed next Monday. I also anticipate that the Interlocutory Application will seek to vacate the hearing of the appeal on 27 (sic) November 2015.

17    On 15 October 2015, the respondents’ solicitors emailed Ms Keys. That email was part of a chain of emails concerning different proceedings before the Court (involving the same parties), but also expressed concern in relation to the lack of progress in preparing this matter for the appeal. The email relevantly provided:

We note that directions for preparation of the appeal were made by Buchanan J on 15 July 2015.

We note that you have failed to provide a draft appeal book index, or any appeal book, despite our requests, and despite our referring you to the relevant Practice Note.

We note also that in accordance with Buchanan J’s order your Outline of Submissions for the appeal is due to be filed and served on 26 October 2015. In our view this document, at the very least, is essential if my client is to have any opportunity to understand the substance of the appeal.

18    The email also foreshadowed the present application for dismissal with costs for want of prosecution in the event that the appellant took no further step to prosecute the appeal. In addition, the email raised a concern that “you [Ms Keys] are counsel for the same applicant/ appellant … although your interlocutory application concerns an order made against you personally.” A similar concern had been raised by the respondents’ solicitors in an earlier email to the Registry and copied to Ms Keys on 14 October 2015.

3.5    The appellant’s interlocutory application on 19 October 2015 for leave to further amend the notice of appeal, to vacate the hearing on 23 November and to list the appeal before a Full Court

19    On 19 October 2015, the appellant filed an interlocutory application seeking orders to the effect that the hearing date be vacated, leave be granted to amend the notice of appeal and the matter be relisted before a Full Court. This was supported by an affidavit of Mr Dahler sworn on 17 October 2015 to which the draft further amended supplementary notice of appeal was annexed. The amendments sought were in effect to broaden the appeal so as to seek to set aside the orders for costs made against Ms Keys in the Federal Circuit Court in Canberra on 30 September 2015 in Dahler (No 3) (see [15] above). I note that this application was made before the appellants’ written submissions were due under the timetable set by Buchanan J having regard to the date then set for the hearing of the appeal.

20    On 26 October 2015, the Registry wrote to the parties inquiring as to whether the respondents opposed the interlocutory application filed on 19 October 2015. The respondents replied on the same day advising they did not oppose any of the orders sought in the interlocutory application.

21    On 29 October 2015 at 10.41am, the Court sent an email to the parties advising that, in the circumstances and in the absence of any further matters being brought to the Court’s attention, I proposed to make the orders set out below at 4.00pm on 30 October 2015:

1.    Leave be granted to extend time for the appellant to further amend the notice of appeal pursuant to r 36.10 of the Federal Court Rules 2011 (Cth) by filing the further amended supplementary notice of appeal annexed as a draft to the affidavit deposed by Clinton Dahler on 17 October 2015, within 7 days.

2.    Pursuant to r 36.11 of the Federal Court Rules 2011 (Cth), the hearing of the appeal hearing listed on 23 November 2015 be vacated and the appeal be stood over to the Court’s Full Court and Appellate Sitting Period 8 February to 4 March 2016.

3.    The appeal be listed for hearing in Canberra on a date to be fixed during the Full Court and Appellate Sitting Period 8 February to 4 March 2016 before a single Judge pursuant to s 25(1AA)(a) of the Federal Court of Australia Act 1976 (Cth).

22    On 30 October 2015, Ms Keys responded by email “not oppos[ing]” proposed orders 1 and 2 – a position which is not surprising given that those orders allowed in part the appellant’s interlocutory application. I note in this regard that no suggestion was then made that the appellant might require more than seven days within which to file and serve the further amended supplementary notice of appeal. However, Ms Keys objected to the third proposed order listing the matter before a single judge and requested an opportunity to be heard in support of the appeal being heard by a Full Court before any order was made to the contrary. Accordingly, the Court emailed the parties advising that it was proposed to list the matter for hearing before me for half an hour on Monday 23 November 2015. Both parties consented to that course.

23    On 6 November 2015, I made orders with respect to Mr Dahler’s interlocutory application filed on 19 October 2015, including:

(1)    an order granting leave to extend time for the appellant to further amend the notice of appeal by filing the further amended supplementary notice of appeal annexed as a draft to the affidavit of Clinton Dahler dated 17 October 2015, within seven days;

(2)    an order vacating the hearing of the appeal listed on 23 November 2015 and for the appeal to be stood over to the Full Court and Appellate Sitting Period 8 February to 4 March 2016; and

(3)    an order listing the appellant’s interlocutory application for the appeal to be heard by a Full Court for hearing on 23 November 2015.

24    The proposed further amended supplementary notice of appeal was not, however, filed within the seven days permitted by the order.

3.6    The hearing on 23 November 2015 of outstanding matters on the appellant’s interlocutory application

25    On 19 November 2015, Ms Keys emailed the Court advising that:

At the interlocutory hearing, the Applicant will have separate representation in relation to that part of the appeal involving the judgment made on 30 September 2015. ...

26    On 23 November 2015, the appellant’s interlocutory application came before me for hearing and I made orders to the following effect:

(1)    that Ms Keys have leave to file an application for leave to appeal from the costs orders made against her by the Federal Circuit Court on 30 September 2015 on or before 21 December 2015;

(2)    dismissing the appellant’s application for the matter to be heard and determined by a Full Court for the reasons given in an ex tempore judgment (Dahler v Australian Capital Territory [2015] FCA 1303), with the costs of that application being reserved; and

(3)    that the appeal be stood over for hearing before a single Judge in the Court’s Full Court and Appellate Sitting Period 8 February to 4 March 2016.

27    I note that no application has been filed by Ms Keys in which she seeks to challenge the costs order made against her in the Federal Circuit Court pursuant to that leave or otherwise.

28    At the hearing on 23 November 2015, I also raised a concern that each iteration of the notice of appeal purported to be an appeal only from the judgment and orders made on 5 June 2015, being the substantive judgment by the Federal Circuit Court. However, the supplementary notice of appeal and the proposed further amended notice of appeal also sought relief in relation to a number of interlocutory orders. Yet it was not apparent how setting aside those orders could be relevant to the appeal against the substantive judgment given on 5 June 2015; nor had leave to appeal been sought from those interlocutory orders. The interlocutory hearing on 23 November 2015 is discussed further below at [57]-[61].

29    The date for the hearing of the appeal was later fixed for 1 March 2016. Based upon the hearing of the appeal being listed on that date, the orders of Buchanan J required:

(1)    the appellant to file and serve his outline of submissions no later than 4.00 pm on 2 February 2016;

(2)    the respondents to file and serve their outline of submissions and materials to be included in Part C to the Appeal Book no later than 4.00pm on 9 February 2016;

(3)    the appellant to file and serve his submissions in reply by 4.00 pm on 16 February 2016;

(4)    the appellant to file and serve Part C of the Appeal Book no later than 4.00 pm on 23 February 2016;

(5)    the appellant to file and serve his list of authorities by 23 February 2016; and

(6)    the respondents to file and serve their list of authorities no later than 24 February 2016.

3.7    Subsequent conduct of the proceedings leading to the vacation of the hearing of the appeal set down on 1 March 2016

30    On 25 November 2015, the ACT Government Solicitor emailed Ms Keys enclosing the draft index for the Appeal Book to which Ms Keys responded on the same day suggesting certain amendments which were agreed to.

31    On 18 December 2015, the legal representative of the respondents emailed Ms Keys requesting that she provide the draft appeal index to be approved by the Registrar as follows:

Given we now have a listing date of 1 March 2016; please provide a draft appeal index of Parts A and B (as per our email exchange on 25 and 26 November 2015) to be approved by the Registrar in accordance with Practice Note APP2. I attach electronic copies of the transcript, as requested. Please file the draft indexes by 8 January 2016 or we will have the matter listed before the Registrar.

32    On 21 December 2015, the appellant filed and served an affidavit sworn by him on 19 December 2015. In the affidavit at [8], Mr Dahler seeks to explain his failure to file the further amended supplementary appeal in accordance with the orders made on 6 November 2015 as follows:

On 6 November 2015, Her Honour Justice Perry’s Associate sent an email to Ms Keys and Ms Muthurajah attaching “orders made by Justice Perry in chambers this morning”, noting that the appeal hearing listed for 23 November 2015 had been vacated and the interlocutory hearing was listed for 9:30 AM on 23 November 2015. …

The Court did not serve me with a copy of the Orders made on 6 November 2015. Among other things, the Orders granted leave for me file the further amended supplementary appeal… within seven days, that is, before 13 November 2015. I did not file a further amended supplementary appeal by 30 November 2015 because I was unaware that any orders had been made on 6 November 2015.

(errors in the original.)

33    Complaint is also made in Mr Dahler’s affidavit filed on 21 December 2015 that the reasons for the order made on 23 November 2015 granting Ms Keys leave to file an application for leave to appeal from the costs order made against her in the Federal Circuit Court are not reflected in the ex tempore judgment delivered on 23 November 2015 and that he did not believe that Ms Keys has a conflict of interest in connection with that application. The affidavit is largely argumentative and therefore inadmissible as evidence but purports to give a number of reasons as to why it is said no conflict of interest arose and the application for leave to file a further supplementary notice of appeal should have been allowed.

34    Finally, the appellant deposes at [18] of his affidavit that:

There has been no Order that my Interlocutory Application filed 19 October 2015 is dismissed. I therefore request leave to file the draft Further Amended Supplementary Notice of Appeal from the Federal Circuit Court of Australia, which is a annexure “CD1” to my affidavit sworn 17 October 2015, and vacation of the hearing date on 30 March 2015 because it is now likely that the appeal will take more 1 one day. I also request that consideration be given to the appeal being heard by a Full Bench in the May 2016 Full Court and Appellate Sittings given the complexity of the factual and legal issues involved in the ‘costs decision’, which include revision of two separate ‘costs’ orders made in the Federal Court…

35    No submissions were filed by the appellant on or before 2 February 2016 in breach of the orders made by Buchanan J. However, on 16 February 2016, Ms Keys sent an email to the Registrar enclosing a further status report and the draft index to Parts A and B of the Appeal Book, and stated that the “hearing [of the appeal] could not proceed” on 1 March 2016. Ms Keys also stated in that email that she was not a party to the appeal and did not consent to being a party to the appeal, and that “neither the Court nor the Respondents have sought to join me as a party to the appeal”. That email was argumentative and based upon assertions as to matters of fact, seeking to explain why the matter could not proceed. I pause to note that it is inappropriate for correspondence with the Court to descend into such matters of argument and an application is required for a hearing date to be adjourned supported by an affidavit. No application was, however, made by the appellant for the hearing of the appeal to be adjourned and no supporting affidavit was therefore filed to explain the need for an adjournment.

36    On 18 February 2016, in response to a query from the Registry, the respondents’ solicitors confirmed that the respondents did not agree to the draft Appeal Book index submitted by the appellant.

37    On 22 February 2016, in response to an email from the Court regarding the status of the appeal in circumstances where the orders of Buchanan J of 15 July 2015 had not been complied with, Ms Keys send an email to my associate attaching her email to the Registry on 16 February 2016. That email again descended inappropriately into argument.

3.8    The application for summary dismissal and vacation of the hearing of the appeal

38    On 22 February 2016, the respondents filed the present application seeking summary dismissal of the appeal.

39    On 24 February, the matter came before me for directions, and timetabling orders were made for the filing of evidence and written submissions in relation to the present interlocutory application. Orders were also made vacating the hearing of the appeal which had been scheduled for 1 March 2016. While no application had been made for an adjournment, the appellant’s conduct as outlined above effectively presented the Court and the respondents with a fait accompli in so far as the hearing of the appeal on that date was concerned.

40    At the hearing of the interlocutory application on 4 April 2016, I was informed by counsel for the respondents that the Appeal Book index had been provided to the Court on 1 April 2016.

41    On 21 April 2016, when judgment on the respondents’ interlocutory application was reserved, the appellant filed Part A of the Appeal Book.

4.    CONSIDERATION

4.1    Relevant principles

42    Rule 36.74(1) provides that:

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 things:

(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.

43    The power to summarily dismiss upon such an application is found in s 25(2B) of the FCA which relevantly provides that:

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;

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

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

44    The parties relied upon Intellec Development Group Pty Ltd v 3D Funtimes Ltd [2011] FCAFC 148 (Intellec Development Group) and the decision of the Full Federal Court in Van Reesema v Giameos (1979) 27 ALR 525 (Van Reesema).

45    The principles which emerge from these authorities are well established and may be summarised as follows.

(1)    The discretion summarily to dismiss under this provision is an order that the Court would make only in a clear case. As the Full Court held with respect to then O 52 r 17 of the Federal Court Rules 1976 (Cth) in Van Reesema at 530, “[t]he power to dismiss the appeal for want of prosecution must not be lightly exercised.”

(2)    Public policy demands that Court rules and orders are complied with: Van Reesema at 531.

(3)    While each case will depend on its own circumstances, relevant facts may include whether there is a reasonably arguable case, the extent of delay in compliance, whether there is a satisfactory explanation for the non-compliance, and prejudice to the respondent by the delay: e.g. Intellec Development Group at [12]-[13].

(4)    The Court is required to take into account ss 37M and 37N of the FCA: Intellec Development Group at [2]-[3]. As Bromberg J explained in Shirreff v Beck Legal Pty Limited (No 3) [2011] FCA 604 (Shirreff) at [23]-[24] (quoted with approval in Intellec Development Group at [3]):

23.    Mr Shirreff’s failure to abide by the orders of the Court has deprived Beck Legal of the opportunity to have the appeal heard and resolved as quickly and as expeditiously as possible, in a manner consistent with the interests of justice. It is necessary also that I take into account s 37M of the Federal Court Act. That provision requires that the Rules must be interpreted and applied, and any power conferred or duty imposed by the Rules be exercised or carried out in a way that best promotes the overarching purpose of the civil practice and procedure provisions - that is, “the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible”.

24.    Case management considerations of the kind raised by s 37M of the Federal Court Act were referred to by the High Court in Aon, and beyond prejudice to a party to the proceeding, those considerations also go to waste of and inefficiency to Court resources, and the prejudice to other litigants before the Court, including by the failure of parties to properly prosecute their proceedings and the resultant loss of hearing days available to the Court.

46    In this regard, s 37M(2) of the FCA expands upon the “overarching purpose” referred to in s 37M(1), providing that it includes the following objectives:

(a)      the just determination of all proceedings before the Court;

(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;

(e)      the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.

47    Section 37M must be read together with s 37N, subsection (1) of which imposes a duty upon the parties to a civil proceeding to “conduct the proceeding … in a way that is consistent with the overarching purpose”. Section 37N(2) also imposes a duty upon a party’s lawyer as follows:

(2)    A party’s lawyer must, in the conduct of a civil proceeding before the Court (including negotiations for settlement) on the party’s behalf:

(a)    take account of the duty imposed on the party by subsection (1); and

(b)    assist the party to comply with the duty.

48    Consistently with the principles summarised above, Griffiths J held in Singh v Owners Strata Plan 11723 (No 4) [2012] FCA 1180 at [40] that:

(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 s 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.

4.2    The issues as to alleged non-compliance by the appellant

49    In support of their application for the appeal to be summarily dismissed, the respondents rely in particular upon:

(1)    the appellant’s failure to comply with r 36.52 of the Rules requiring that the appellant submit to the Registrar a draft of the index to Part A of the Appeal Book and Part B of the Appeal Book within 28 days after service of the notice of appeal both:

(a)    before the hearing of this appeal when initially set down on 23 November 2015; and

(b)    when the hearing of the appeal was relisted for hearing on 1 March 2016;

(2)    the appellant’s failure at any time to file written submissions in support of the appeal in contravention of the orders made by Buchanan J on 15 July 2015.

50    The appellant submits that there are practical explanations for the vacation of the hearings listed on 23 November 2015 and 1 March 2016 and for the failure to settle the Appeal Book index as required by Practice Note APP2 and the written submissions in accordance with the orders made on 15 July 2015. I consider the adequacy of those explanations below.

4.3    The delay in providing the draft index to the Appeal Book

51    Under r 36.52(2), an appellant must within 28 days after the notice of appeal has been served, submit to the Registrar a draft of the index to Parts A and B of the Appeal Book, save where an application has been made within seven days of service of the notice of appeal to the Registrar for assistance in settling the index. The same requirement is set out at [4.1] and [4.2] of the Practice Note APP2. As earlier mentioned, Ms Keys wrote to the Registrar within seven days of instituting the appeal on 26 June 2015 seeking assistance with settling the Appeal Book index. However, on 6 August 2015 the Court advised that it could arrange an index appointment only once the draft index settled in consultation with the respondents had been provided to the Court. Once that correspondence was received, I consider that Ms Keys ought to have acted promptly to rectify the situation as indicated in the email from the Court on 6 August 2015. The fact that Ms Keys had made an application for assistance to settle the Appeal Book index did not indefinitely postpone the appellant’s duty to provide the draft index in accordance with the Rules and Practice Note APP2. I accept therefore the respondents’ submission that this was a relevant non-compliance with the rules for the purposes of the summary dismissal application.

52    While the index to the Appeal Book was finally submitted on 1 April 2016, that was only after the hearing of the appeal had been adjourned twice and only after the respondents took the step of assuming the appellant’s responsibility for preparing the draft Appeal Book index in order to avoid further delay. That step was understandably described in the context of private litigation by the respondents’ counsel as “extraordinary” and was taken only after repeated reminders by the respondents in correspondence of the need for the appellant to attend to this task referring to the requirements in Practice Note APP2. I also accept the respondents’ submission that it can fairly be inferred that, if it had not been for the actions of the respondents’ solicitors drafting the first version of the draft index, the appellant may not have prepared it. Indeed, counsel for the appellant appeared to accept as much in submitting that the appellant’s failure to prepare the draft Appeal Book index is explained by the fact that the appellant is represented by a barrister on a direct access brief. However, there is no exception from the obligation imposed upon an appellant by r 36.52 or under Practice Note APP2 for such cases, and the appellant’s submissions fail to appreciate that what underlies these requirements is that it is for an appellant to prosecute her or his appeal.

53    It follows that I accept the respondents’ submission that there has been no adequate explanation given by the appellant for the failure to comply with this essential step in the prosecution of an appeal in accordance with the Rules and Practice Note APP2.

4.4    The failure to provide an outline of submissions in compliance with orders of 15 July 2015

54    Nor has there been any adequate explanation as to why no outline of submissions was filed in compliance with the orders of Buchanan J on which the respondents also rely in support of their interlocutory application. In this regard, the respondents rightly point to the opaqueness of the grounds of appeal which, with one or two exceptions, simply plead that the Court below erred in making a particular finding, and submit that this highlights the seriousness of the appellant’s failure to comply with the orders. While no point was taken by the respondents as to whether the grounds of appeal thereby failed to comply with the requirements under the rules for the pleading of grounds of appeal, nonetheless as they submit the pleadings fail to expose the errors which are said to have been made in the judgment below to the prejudice of the respondents. For example, ground 1.1.1 simply pleads as a particular of the general ground that the Court below erred in dismissing the appellant’s application under section 340 of the Fair Work Act 2009, that “[t]he Court below erred in finding that the Appellant ‘was not dismissed ‘because’ he had (or exercised) a workplace right, as required by section 340(1)(a)’ of the Act.” The respondents are left to guess as to why it is said that that finding was in error. The consequence of the opaqueness in the pleading of the grounds of appeal and the failure to comply with the orders as to the filing of written submissions is that the respondents and the Court remain in the dark as to what the appellant’s case is, notwithstanding that the respondents’ interlocutory application was heard some 10 months after the appeal was instituted.

55    Nor can it be ignored that the appellant’s failure to file written submissions and to take any steps to seek an extension of time or otherwise remedy that default before the March 2016 hearing date led to the last minute vacation of that date, together with the failure at that stage even to file the draft index of the Appeal Book. It was only upon my chambers discovering the default in compliance with the Orders as to written submissions that the matter was called back on for directions and it became evident that the March 2016 hearing date had to be vacated. In this regard, as set out earlier in the history of these proceedings, while Ms Keys had emailed the Registry on 16 February 2016 asserting that the “appeal cannot proceed”, no interlocutory application for an adjournment of the appeal was ever made in conformity with the Rules.

56    It would appear that the main basis on which the appellant relied to explain non-compliance with the Court directions prior to the hearing date was that his interlocutory application of 19 October 2015 had not been dealt with. This “explanation” is misconceived and inadequate for several reasons.

(1)    First, orders were made on 6 November 2015 granting the appellant leave to amend the supplementary notice of appeal by filing the further amended supplementary notice of appeal, as was sought in the interlocutory application made on 19 October 2015. As such, the interlocutory application made on 19 October 2015 was dealt with on 6 November 2015 to the extent that the appellant sought leave to file and serve that document, as the respondents submitted. The orders made on 6 November 2015 also vacated the hearing of the appeal on 23 November 2015 being the second order sought in that application. The only outstanding matter on the appellant’s interlocutory application therefore at the hearing on 23 November 2015 was the third order sought – that the appeal be heard by a Full Court. That application was heard and determined at the hearing, with ex tempore reasons given. The ex tempore reasons did not address the reasons why Ms Keys was granted leave to file an application for leave to appeal the costs order against her personally because Ms Keys accepted and agreed with that order: see below at [57].

(2)    Secondly, the fact that no further amended supplementary notice of appeal was in fact filed by the appellant within the seven day period set by the orders does not detract from the fact that the interlocutory application had been allowed to this extent by the orders made on 6 November 2015. Contrary to the appellant’s submissions, this does not mean that the orders made on 6 November 2015 to this effect “expired” such that the appellant’s interlocutory application was resuscitated in some way.

(3)    Thirdly, the appellant’s contention that he was not “served” with those orders by the Court is also misconceived. The Court does not serve orders. It was Ms Keys’ responsibility to bring those orders to the attention of her client. As the appellant’s affidavit acknowledges, Ms Keys was well aware that the orders had been made on 6 November 2015. Indeed, in her email of 30 October 2015, Ms Keys advised the Court that “the appellant does not oppose Order 1 & 2 being made”, which it must be assumed was based upon instructions from her client. In this regard, while Ms Keys is not the solicitor on the record, she has accepted a direct access brief as counsel and must therefore communicate directly with the appellant for instructions. Moreover, as the respondents submitted, Ms Keys had corresponded both with the Court and the respondents’ solicitors in the past on behalf of her client in the course of this litigation, as the earlier history of this proceeding set out above discloses. Indeed, Mr Ng’s unchallenged evidence was that all correspondence about the matter between the respondents’ solicitors and the appellant had been conducted with and by Ms Keys.

(4)    Fourthly, while counsel for the appellant said that the length of seven days was not sufficient for the appellant to be able to prepare and file the further amended supplementary notice of appeal, this had not been raised at any point prior to the hearing on 4 April 2016; to the contrary, as earlier stated, Ms Keys advised on 30 October 2015 that an order to this effect was not opposed.

57    In any event, to the extent to which the appellant is to be taken as pressing for a further grant of leave to file the further amended supplementary notice of appeal at the hearing on 23 November 2015, the first of the orders made on 23 November 2015 effectively disposed of that application. This is because both of the proposed amendments to the notice of appeal related to a proposed appeal against the costs order made personally against Ms Keys and Ms Keys accepted during the course of argument that the appropriate course in those circumstances was instead for her to seek leave to appeal the costs order against her. Specifically, during the course of argument on 23 November 2015, I raised concerns with Ms Keys about the fact that, if the amendments were allowed, her client would be appealing the costs orders despite the fact that these orders were made against Ms Keys personally and that, if she continued to represent the appellant with respect to these issues, this gave rise to a conflict of interest. The following exchange then occurred between me and Ms Keys:

HER HONOUR: Do you understand the point I’m making about the conflict?

MS KEYS: I do understand and I have made an application to my insurer in relation to representation.

HER HONOUR: Yes.

MS KEYS: Last week, that I had arranged for, I thought, someone to – that was going to appear – – –… on my behalf today, but that changed on Friday afternoon and the person is here in court but has indicated that they don’t wish to appear at this stage.

(emphasis added.)

58    Later in the hearing Ms Keys again confirmed her understanding about the conflict of interest as the following passages reveal:

MS KEYS: The potential conflict of interest only arises since Judge Driver’s judgment on 30 September 2015.

HER HONOUR: Yes, but it just seems, to my mind, that it shouldn’t be included in this notice of appeal because it’s not in your client’s interest to appeal that order. It’s something that affects your interests.

MS KEYS: And it will be – I was hoping to have that resolved by today but was unable to do it, and if – not if – when we do proceed with this there will be separate representation if that part of the appeal is - - - 

HER HONOUR: But that won’t affect the fact that, at the moment, it’s your client that’s appealing – would be appealing that order, and subject to what the respondents might say I don’t think it’s proper for the court to make an order which would allow you to file a notice of appeal on behalf of your client which, in fact, appeals an order in their favour, which is against the interests of the barrister appearing for him. You can seek your own leave to appeal, as I’ve indicated, but it just doesn’t seem, to my mind, to be something that is proper for your client to be appealing. Do you understand the point about the conflict?

MS KEYS: Yes, I do.

HER HONOUR: Yes.

MS KEYS: I do. The conflict is not an either/or situation, though. If – ..... I’ve explained the order that the appellant is seeking is that the order be struck out. If the order that was made on 30 September is struck out, there is no other order that he pay costs.

HER HONOUR: No, but that may well be something that the respondent seeks. I just think at the moment I’ve got a real problem with that and it may well be that you will have to seek leave or you will have to get someone separate to come and argue this point in front of me. At the moment, nothing you’re saying is persuading me that it’s appropriate for your client to seek that order. …

(emphasis added.)

59    Ms Keys also accepted that if the two paragraphs of the proposed further supplementary notice of appeal challenging the costs orders against her were not included, there was no need for any further document to be filed in the following passage from the transcript on 23 November 2015:

HER HONOUR: Thank you. So your point, Ms Keys, is if we don’t – if those two paragraphs are not to be included then, in fact, the notice of appeal in its current form, subject to the orders of Buchanan J, stands, so there’s no need for any further document to be filed.

MS KEYS: No. With this, the further amended supplementary notice of appeal was only intended to - - - 

HER HONOUR: Add those grounds relating - - - 

MS KEYS: - - - add those grounds of appeal.

HER HONOUR: Well, then, that would seem the simplest way to proceed. Are you happy with that, Mr Jarvis?

MR JARVIS: Yes, your Honour.

HER HONOUR: Okay. Well, then, in that case, there’s no need for any order relating to the filing of a further notice of appeal. Now, the question of the Full Court - - - 

(emphasis added.)

60    Furthermore while making the point that she had not been put on notice about the fact that it would fall to her to appeal the costs orders against her, Ms Keys also stated that she was “not … quibbling with what you’ve done.” I note in this regard, that the issue of the conflict had been raised well before the hearing in correspondence from the solicitors for the respondents: see above at [18].

61    Finally, with respect to the timetable for any application by Ms Keys for leave to appeal the costs orders against her, Ms Keys suggested that she would be able to file any such application by 17 December 2015. I ultimately ordered that she have until 21 December 2015 to which Ms Keys responded “That’s good. Thank you.”

62    The matter was raised again at the directions hearing on 24 February 2016:

MS KEYS: I don’t think it’s good enough that you have made a decision that [the interlocutory application of 19 October 2015 had been decided] – and it’s not in writing. It’s not a written decision. That I have to make – that the appellant cannot proceed with his appeal against the cost decision. If that is what your decision is, it should be an express decision. But he made an application last October and he wants that application pressed. He wants to amend – further amend his supplementary notice of appeal to include the costs decision that was made last September. The appellants wanted to appeal against that.

HER HONOUR: And that’s the costs order made against you, Ms Keys?

MS KEYS: Yes.

HER HONOUR: Well, I mean, I ---

MS KEYS: I am not a party.

HER HONOUR: No, but you could be one because this is an order that has been made against you. It has not been made against your client.

MS KEYS: I could be a party but nobody has made me a party. The court hasn’t made me a party.

HER HONOUR: Well, do you or do you not wish to appeal against that costs order?

MS KEYS: No, I don’t.

HER HONOUR: Well, then, that’s the end of the matter.

MS KEYS: The appellant wants to appeal against it.

HER HONOUR: Ms Keys, you did say, on the last occasion, you understood the difficulty that you were in. In those circumstances, it’s scarcely surprising that no published reasons were given and that you understood why there was a need for you to seek leave to be joined.

MS KEYS: The difficulty that I appreciated I’m in is that it’s very difficult to represent oneself and at the hearing of this matter I intend to have somebody else representing me, that is, it is not because I’m a party or I want to be a party or because I’ve been made a party.

HER HONOUR: Well, Ms Keys, you can’t be legally represented unless you’re a party.

63    Consequently, even if no formal order had been made on 6 November 2015 allowing the application to file the further supplementary notice of appeal, it was clear that the appellants’ application for leave in this respect had been effectively superceded by directing that Ms Keys was to seek leave to appeal the costs order against her within a specified time. It was also clear that Ms Keys understood why that was required, that she agreed with the orders providing for this to be done, and that she had agreed with the time within which that was to occur.

64    In short, it could not be said on any view that the interlocutory application remained unresolved to the extent to which the appellant sought leave to file and serve the further amended supplementary notice of appeal to appeal the costs order against Ms Keys, and that this was an adequate reason why the appellant had not complied with the court orders requiring the provision of an outline of submissions. I also note that the orders made by Buchanan J on 15 July 2015 also expressly afforded the parties liberty to apply on three days’ notice and that there is no reason as to why the appellant could not have sought to bring the matter on before the Court if there was a real concern about any aspect of the interlocutory application remaining unresolved and about filing the written submissions in light of such a concern. It was not open, in my view, to the appellant simply to stand by and ignore Court orders requiring the provision of an outline of submissions and the impending appeal date.

4.5    Should the discretion be exercised to summarily dismiss the appeal?

65    Bearing in mind the caution which must be exercised before acceding to an application for summary dismissal, I nonetheless consider that this is an appropriate case where the discretion should be exercised to summarily dismiss the appeal under s 25(2B)(ba) and (bb)(i) of the FCA.

66    First, for the reasons set out above, it is clear that the respondents rightly contend that the appellant has failed to comply with r 36.52 of the Federal Court Rules (and Practice Note App 2) in failing to submit the draft index to Parts A and B of the Appeal Book until some eight months after notification by the Court that an appointment to settle the draft index could be sought only once the draft index prepared in consultation with the respondents had been provided. Nor do I consider that a satisfactory explanation has been given for that delay. The delay was to the prejudice of the respondents who, understandably, ultimately elected to prepare the draft index which were provided to the appellant on 25 November 2015 after repeated reminders to the appellant of his obligation to do so were of no avail. Even then, the appellant still failed to provide the draft index to the Registrar until 1 April 2016, after the second hearing date had been vacated. As earlier explained, I also infer that, but for the respondents’ action in preparing the draft index, the appellant may well not have done so: see above at [52].

67    Secondly, the appellant failed to file written submissions on 2 February 2016 in compliance with the orders of Buchanan J and it remains the case that no written submissions have been filed. This has operated to the respondents’ prejudice in that the respondents remain, as I have earlier explained, in the dark as to the nature of the errors alleged by reason of the general and unsatisfactory pleadings in the notice of appeal. The appellant has been aware since at least 15 October 2015 that the respondents understandably consider that the outline of submissions is, at the very least, essential if the respondents are to understand the substance of the appeal. Yet the appellant has done nothing. The explanations for that non-compliance are unsatisfactory for the reasons I have already given.

68    Thirdly, the hearing of the appeal has now been adjourned twice: on the first occasion, at the appellant’s instigation, albeit unopposed; and on the second occasion in circumstances where the appellant ignored non-compliance with the orders made on 15 July 2015 and the requirement relating to preparation of the Appeal Books, and thereby effectively presented the respondents and the Court with a fait accompli where there was no option but to adjourn the hearing (see above at [39]).

69    Fourthly, as these matters demonstrate, the appellant’s non-compliance with the Rules, Practice Note APP2 and Court orders deprived the respondents of the opportunity to have the appeal resolved as expeditiously as possible in a manner consistent with the interests of justice and the overarching purpose in s 37M of the FCA.

70    The end result is, as the respondents submitted, that at the time of the hearing of the respondents’ interlocutory application, there was no evidence of compliance by the appellant with any Court order or Rule after the proceedings were instituted. In this regard, I note that Part A of the Appeal Book was filed by the appellant after judgment on the respondents’ application for summary dismissal was reserved. However, neither party sought leave to be heard on the significance of this to the application and it would not be appropriate for me to make any finding as to whether or not it was filed in compliance with r 36.52 requiring that the appellant must within 14 days of being notified that the Registrar has approved the draft index to Parts A and B, file Parts A and B. Nonetheless I consider that it is appropriate for me to have regard to it as reinforcing the appellant’s evidence that he wants the appeal to be heard and determined.

71    As to the latter point, I accept for present purposes that the appellant still wishes the appeal to be heard and determined. However, as Logan and Flick JJ explained in Dowling v Fairfax Media Publications Pty Ltd (No 2) [2010] FCAFC 28 (Dowling) at [82]:

Even though an appellant may not resile from his position that he wants an appeal heard and resolved, it should be noted that the “want of prosecution” referred to in s 25(2B)(ba) is a reference to the prosecution of an appeal in accordance with the Rules of this Court. No appellant can be allowed to unilaterally dictate the manner in which his appeal is to be prosecuted....

(emphasis added.)

72    Finally, no party made any submissions on the relevance to this application of the question of whether the appeal had any reasonable prospects of success. This may be because, as I have already observed and the respondents submitted, it is not possible to discern from the notice of appeal what errors are in fact alleged and therefore what prospects of success an appeal might have. This is due, in the context of generalised and opaque grounds of appeal, to the appellant’s failure to provide written submissions in compliance with the orders of Buchanan J made on 15 July 2015 or at all.

73    In short, I consider that this is a case where the history of non-compliance with essential steps in prosecuting the appeal indicates a continuing and significant failure to co-operate with the Court and the respondents in preparing the appeal for hearing. Further, the non-compliance with the order to provide written submissions continues to occasion prejudice to the respondents who remain in the dark about the basis on which it is said that the primary judge erred and whether there may be any merit in the appeal. This is a case where, notwithstanding the Rules, Practice Note APP2 and Court orders regarding the orderly and timely preparation of appeals, the appellant has done almost nothing to avail himself to facilitate that process: see by analogy Dowling at [91] (Logan and Flick JJ). In addition, I have had regard in deciding to summarily dismiss the appeal to the consequences for other litigants and the Court which result from the failure of the appellant to properly prosecute his appeal: see above at [45(4)] and [46]-[48] above.

5.    CONCLUSION

74    The appeal is summarily dismissed under s 25(2B)(ba) and (bb) of the FCA. As the parties accepted at the hearing, the question of costs is reserved. A timetable will be set for the filing of written submissions and any other steps which might be required in the event that the respondents should decide to seek an order as to costs.

Associate:

Dated:    9 September 2016