FEDERAL COURT OF AUSTRALIA

Irwin v Irwin [2016] FCA 1565

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 37P(3)(f) of the Federal Court of Australia Act 1976 (Cth) the requirements in r 36.74(2) of the Federal Court Rules 2011 (Cth) are waived in relation to the respondent’s application for an order that the appeal be dismissed.

2.    The appeal is dismissed.

3.    The appellant is to pay the respondent’s costs of and incidental to the appeal.

4.    The appellant has leave to inspect, but not to copy, the transcript of today’s hearing in the South Australia District Registry of the Court.

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

REASONS FOR JUDGMENT

Charlesworth J:

INTRODUCTION

1    Section 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) (Act) confers power upon a single judge to make an order that an appeal to the Court be dismissed for failure of the appellant to attend a hearing relating to the appeal. On 7 December 2016, I dismissed this appeal in the exercise of that power. I delivered brief oral reasons with a view to publishing written reasons at a later time. These are my written reasons.

SUMMARY OF REASONS

2    There were two hearings relating to this appeal at which the appellant either did not attend or attended only in part. The first was a case management hearing on 4 October 2016 during which the appellant departed the Court abruptly at a time when the Court remained in session. The second was a hearing commencing at 10:00am on 7 December 2016 at which a number of interlocutory issues raised by the respondent had been set down for argument. The appellant did not attend that hearing at all. In correspondence to which I will soon refer, the appellant stated an intention to (using his word) “boycott” the hearing.

3    The decision to dismiss Mr Irwin’s appeal was made having regard to (among other things):

(1)    Mr Irwin’s reasons for abruptly departing the 4 October 2016 hearing;

(2)    Mr Irwin’s reasons for not attending the 7 December 2016 hearing;

(3)    the likelihood that Mr Irwin would not attend future hearings relating to the appeal, including the hearing of the appeal itself;

(4)    Mr Irwin’s appreciation of the potential consequences for not attending a hearing relating to the appeal, notwithstanding his status as an unrepresented litigant; and

(5)    the overarching case management principles stated in s 37M(1) of the Act, the objectives underlying the principles stated in s 37M(2) of the Act and the application of the principles in the particular circumstances of the case.

4    It is necessary to set out some facts about the procedural history of this matter before turning to explain how those facts bore on my decision to dismiss the appeal.

THE CONDUCT OF THE APPEAL

5    The Federal Circuit Court made a sequestration order against the appellant on 23 June 2016. The appellant commenced this appeal against the sequestration order on 3 July 2016. The Notice of Appeal contains a postal address situated in the United Arab Emirates, an apparently international telephone number and the email address: icicam@hotmail.com.

6    The sequestration order was made on the petition of the respondent. The respondent is the appellant’s brother. He was represented on this appeal by Mr Selley of Iles Selley Lawyers and Mr Ower SC of Counsel. On 27 July 2016, the respondent filed a Notice of Objection to Competency (the Competency Notice). The Competency Notice asserted inter alia that the Notice of Appeal filed by the appellant did not identify a physical address for service for the appellant in Australia in contravention of r 11.01(a) and r 36.01(4) of the Federal Court Rules 2011 (Cth) (Rules). Various other objections were made as to the content of the Notice of Appeal.

7    The respondent then filed an interlocutory application on 8 August 2016. That application sought orders that the appeal be dismissed as incompetent or otherwise dismissed by reason of the appellant’s failure to state on his originating process a physical address for service in Australia. Alternatively, the respondent sought an order that the appellant pay security for the respondent’s costs.

8    The interlocutory application was served on the appellant by email on the morning of 10 August 2016. Later on that same morning, the South Australia District Registry of the Court (Registry) emailed the parties to advise that a case management hearing had been listed to commence at 9:00am on 19 August 2016 and that the respondent’s interlocutory application was listed for mention on the same day. Those two email communications prompted a long email from the appellant addressed to my associate and copied to a number of recipients including Mr Selley, Mr Ower SC and the Registry. The appellant’s email, dated 16 August 2016, alleges a “conspiracy to pervert the course of justice”. It directly and indirectly alleges involvement in the conspiracy by staff of the Registry. Reference is made to judicial officers of this Court and of the Supreme Court of South Australia (Supreme Court). The email suggests that the Chief Justice of the Supreme Court may have determined that the appeal in this Court was to be heard and determined by a single judge. The Chief Justice of the Supreme Court is described as my “ex employer”. The appellant further states that he neither needed nor wanted a case management hearing and complains that his appeal had not been set down for hearing. Further, he asserts in the email that the date proposed for the case management hearing was inconvenient to him because of a death that had occurred in his family. He alleges fraud in connection with the administration of his bankrupt estate and asserts that there may be a “plan” to dismiss his bankruptcy appeal in that week for the purpose of facilitating the furtherance of that fraud. He complains that by filing an interlocutory application on the appeal, the respondent was improperly seeking to “jump the queue” and get a “free hit”. The appellant further alleged that he was a “cognitively impaired man” with a “lifetime disability”. Whilst accusatory and discourteous in its tone, the email appears to have been written by a person with sufficient cognitive ability to understand and articulate arguments and legal concepts at least to the degree ordinarily demonstrated in this Court by a self-represented litigant.

9    The email was sent to my associate after the appellant had received, earlier on 16 August 2016, an email from the Registry containing a reminder in the following terms:

The applicant is reminded that correspondence to the Court should be made with the consent and foreknowledge of all of the parties. It is generally inappropriate to copy the Court in on correspondence that is directed in its content and tenor to another party. The appropriate course is to first obtain the consent of the other party to the order sought before communicating with the Court, and then to communicate with the Court in terms consented to by the other party.

10    After the appellant’s email was received by my associate, I caused my associate to send an email to the parties which included the following paragraph:

Having regard to the content and tenor of the appellant’s email, and having regard to the reminder given to the appellant earlier today about the appropriate manner of communicating with the Court, Justice Charlesworth directs that the appellant cease communications directly with her chambers. Until further order, any further communications directed to this email address will not be brought to the attention of Justice Charlesworth.

11    At the appellant’s request, and with the consent of the respondent, the proposed case management hearing date was vacated and the appeal was listed for case management at the alternative time of 22 August 2016 at 9:00am. The respondent’s interlocutory application was listed for mention at the same time. The appellant was granted leave to appear by telephone link from Victoria.

12    At the case management hearing on 22 August 2016 I marked a printout of the Registry’s email to the appellant MFI-A1. I marked an email chain including the appellant’s message to my associate and other recipients MFI-A2. I informed the appellant that if he had sent any other emails to my associate they had not been, and would not be, read by me. I adopted that course so that it would be abundantly clear to both parties which email communications had been read by me as at that date and so that the emails would be identifiable on the Court record. I also considered it appropriate that the respondent have copies of the emails so marked.

13    I then explained to the appellant that if he meant to assert that he was a person suffering from a legal incapacity then the Court could not proceed to hear and determine his appeal unless he was represented by a litigation guardian: see r 9.61 of the Rules and the definitions of “person under a legal incapacity” and “mentally disabled person”. I indicated to the appellant that his email communication directed to the Court contained articulate and coherent complaints about his perceptions concerning the conduct of his appeal. The appellant claimed that the emails were written by his wife, but that he agreed with the emails and had “signed off on” them. He said “I totally agree with – totally allowed her to write them for me”.

14    I fixed a period of four weeks in which the appellant should, if he wished, file any affidavit material upon which he relied in support of his assertion that he lacked legal capacity. The order was made having regard to the appellant’s acknowledgment that his wife could and did draft material pertaining to these proceedings on his behalf. The time frame of four weeks was fixed at the request of the appellant, having regard to practical difficulties that would impair his ability to prepare and file documents. The practical difficulties included the appellant’s difficulty accessing a computer and documents upon which he might seek to rely, as well as the circumstance that he resided interstate with only a few personal belongings presently at his disposal.

15    No affidavit was filed by or on behalf of the appellant within the time frame specified in my order. No extension of time in which to file an affidavit was sought.

16    At the resumption of the case management hearing on 4 October 2016, the appellant attended in person with his wife. Over the respondent’s objection, I granted the appellant leave to have his wife assist him in the capacity of a McKenzie friend. The grant of leave was expressly stated to be on a day by day basis. I reminded the appellant and his wife that the grant of leave for the appellant to be assisted by a McKenzie friend might be revoked should his wife act in a manner that did not assist the appellant or the Court, or should she otherwise act improperly.

17    Although the appellant had not filed affidavit material concerning his legal capacity, he indicated that he intended to adduce evidence on that topic before me on that day. However, after being reminded that should I become satisfied that he suffered from a legal incapacity then I would strike out the appeal in accordance with Div 9.6 of the Rules, the appellant did not adduce the evidence. Instead, he submitted that there was a difference between “a legal disability and a cognitive disability”. The appellant made further submissions at the case management hearing with sufficient coherence and insight to demonstrate to me that, despite his assertions, and in the absence of other evidence, he was not a person to whom Div 9.6 of the Rules applied.

18    I again reminded the appellant that any email communications sent to my associate were not being read by me and that I would only hear submissions from him in open court. The appellant asked: “So you can choose to listen to those emails [being MFI-A1 and MFI-A2] and throw the rest away, your Honour?” I confirmed that the appellant was correct in that understanding.

19    The appellant then raised an objection to the trustee of his bankrupt estate, Mr Naudi, attending in the proceedings. He submitted that Mr Naudi had a conflict of interest in that he was party to the fraud the appellant alleged against a wide circle of participants. I granted Mr Naudi leave to appear in the proceedings but not to make submissions unless invited to do so by the Court or unless an issue arose that affected the administration of the appellant’s bankrupt estate.

20    I invited submissions from the parties in relation to the appellant’s failure to provide a physical address for service in Australia. The appellant claimed he could not provide a physical address for service because he was presently stranded in Australia and living out of a suitcase in a hotel room. The appellant told the Court that he consented to any document that otherwise must be served personally upon him being served instead by way of an email transmission to the email address appearing on his originating documents. He gave his consent after having an opportunity to discuss the issue with his wife.

21    I otherwise made no order in the proceedings concerning the personal service of documents on the appellant in the action.

22    I then referred to the email correspondence marked MFI-A2, its express reference to a conspiracy involving the judiciary and the legal profession, and an implied connection between fraud occurring in proceedings in the Supreme Court and the reference to the Chief Justice of the Supreme Court being my “ex-employer”. In light of the content of the email, I invited the appellant to state whether it was his intention to make an application that I disqualify myself as the presiding judge on the appeal. I stated that it was insufficient that the appellant seek to have a judge disqualified obliquely by way of a throwaway line in an email to an associate that might, on some unexplained basis, support such an order. I asked the appellant how long he would like to file an affidavit in support of any application that I disqualify myself. At the appellant’s request, I fixed a period of 21 days for any such affidavit to be filed.

23    I heard submissions from the parties in relation to the most efficient and pragmatic means of determining the interlocutory issues that had arisen on the appeal. One of those issues concerned the service upon the appellant of a notice to produce documents relevant to his financial position and thereby relevant to the respondent’s application for security for costs.

24    Whilst I was inviting submissions from the appellant on the question of his compliance with the notice to produce, the appellant, together with his wife, departed the bar table and the courtroom. They left abruptly, without seeking to be excused and without giving any explanation.

25    I proceeded nonetheless to make further orders in the appellant’s absence. After I had done so the respondent, through his Counsel, made an oral application for an order that I dismiss the appeal pursuant to s 25(2B)(bb) of the Act by virtue of the appellant’s sudden and unexplained departure from the hearing. I declined to entertain the application at that time. I instead set the application down for hearing on 7 December 2016 and requested that the respondent put the appellant on notice that the application had been made and that any failure by the appellant to attend at the hearing on 7 December 2016 might be taken into account in support of it.

26    I made 18 orders for the case management of the appeal on 4 October 2016. The orders were as follows:

1.    The appellant is, if so advised, to file and serve an application for orders that the presiding judge on this appeal be disqualified on or before 25 October 2016.

2.    The appellant is to file and serve any affidavit material upon which he relies in relation to the respondent’s application for security for costs on or before 25 October 2016.

3.    The respondent, if so advised, is to file and serve any affidavit material upon which he relies in relation to the appellant’s application (if any) that the presiding judge on this appeal be disqualified on or before 1 November 2016.

4.    The respondent, if so advised, is to file and serve any affidavit material in reply on his application for security for costs on or before 1 November 2016.

5.    Any application filed by the appellant in accordance with the order in paragraph 1 is set down for hearing at 10:00am on 7 December 2016, with one day set aside.

6.    The respondent’s application for security for costs is set down for hearing at 10:00am on 7 December 2016.

7.    The appellant has leave to appear by video link at the hearing set down at 10:00am on 7 December 2016.

8.    The issues raised in grounds 2, 3 and 5 of the respondent’s notice of objection to competency is set down for hearing at 10:00am on 7 December 2016.

9.    The Notice to Produce dated 27 September 2016 served on the appellant by the respondent is to be complied with by 10:00am on 11 October 2016.

10.    The appellant is to file and serve written submissions in support of any application made in accordance with paragraph 1 on or before 1 November 2016, such submissions not to exceed 10 pages.

11.    The respondent is to file and serve written submissions in relation to its application for security for costs and any application for disqualification made by the appellant and all issues arising on its objection for competency as are set down for hearing at 10:00am on 7 December 2016 on or before 1 November 2016, such submissions not to exceed 20 pages.

12.    The appellant is to file and serve written submissions in relation to the respondent’s application for security for costs and all issues arising on the respondent’s objection to competency as are set down for hearing at 10:00am on 7 December 2016 on or before 22 November 2016, such submissions not to exceed 10 pages.

13.    Liberty to apply.

14.    No party in this proceeding is to communicate to the Court by way of email directed to the following email address: associate.charlesworthj@fedcourt.gov.au.

15.    Any correspondence that would otherwise be permitted under the Practice Notes of the Court to be sent to the email address referred to in paragraph 14 are to be directed instead to the SA District Registry and are otherwise to comply with the requirements of paragraphs 5.4.1 and 5.4.2 of Interim Practice Note NCF 1 regulating the manner in which parties are to communicate with the Court.

16.    The costs of today are reserved.

17.    The respondent’s oral application that this action be dismissed pursuant to s 25(2B)(bb) of the Federal Court of Australia Act 1976 (Cth) is set down for hearing at 10:00am on 7 December 2016.

18.    The parties, if so advised, are to file and serve written submissions in support of the application referred to in paragraph 17 of these orders on or before the dates upon which they are to file and serve written submissions in accordance with paragraph 11 (in the case of respondent) and paragraph 12 (in the case of the appellant) herein, such submissions not to exceed 5 pages.

27    After the hearing, I made a further order in chambers in the following terms:

Insofar as the appellant seeks leave to have the assistance of a McKenzie friend at the hearing set down at 10:00am on 7 December 2016, the appellant is, on or before 22 November 2016, to file and serve an affidavit deposing to the identity of the person proposed to act in that capacity.

28    That order reflected the circumstance that leave had only been granted to the appellant to have his wife appear as a McKenzie friend on a day by day basis. Having regard to the participation of the appellant’s wife in his abrupt departure from the hearing on that day, I considered it appropriate that the Court and the respondent be given notice of the identity of any alternative person the appellant might seek to assist him in that capacity at future hearings relating to the appeal.

29    The appellant filed no further materials on the appeal. In particular, no materials were filed as permitted or required by orders 1, 2, 10, 12 and 18 of 4 October 2016. The appellant did not seek to exercise the liberty to apply to appear by video link at the hearing on 7 December 2016. Nor did the appellant file any affidavit identifying any person he proposed assist him as a McKenzie friend at that hearing.

30    Although it appears that the appellant did not comply with the notice to produce referred to in order 9 of 4 October 2016, I have not taken that apparent instance of non-compliance into account in dismissing the appeal. For present purposes it is sufficient to note that I made orders on 27 October 2016 to the effect that the respondent have leave to inspect documents in the Registry relating to Mr Irwin’s financial position. The documents are the same documents forming the subject matter of the respondent’s notice to produce served on the appellant.

31    On 6 December 2016, the respondent filed an affidavit sworn by Mr Selley on the same day. I make the following findings by reference to that affidavit:

(1)    On 4 October 2016 Mr Selley wrote by email to the appellant in the following terms:

Dear Mr Irwin

I refer to the hearing before Justice Charlesworth this morning which you and your wife chose to walk out on.

The hearing continued in your absence.

One of the orders made was to extend time for you to comply with our Notice to Produce to 11 October 2016 and that my client has liberty to apply for further orders in that regard should you fail to comply. Please ensure you do. Mr Ower also made an oral application that your Appeal be dismissed under s25(2B)(bb) of the Federal Court of Australia Act 1976 for reason of your failure to attend a hearing. Her Honour permitted that application to be made orally but refused to entertain it this morning — it has been listed for hearing on 7 December 2016. Her Honour also directed us to inform you of the fact of the application and of the Court’s power to dismiss an action in the event a party fails to attend a hearing in the matter, foreshadowing that she may be disposed to exercise that power should you not attend the hearing on 7 December in person or video link or prematurely leave that hearing or fail to comply with other orders and directions which her Honour made this morning.

Regards

(2)    On 18 November 2016, the Supreme Court delivered judgment in proceedings in that Court concerning the administration of a deceased estate concerning both parties to this appeal. It appears that an article appeared in The Advertiser on 3 December 2016 relating to the appellant and the Supreme Court judgment that the appellant considered to be critical or derogatory of him.

(3)    On 5 December 2016, the appellant sent an email to recipients including my associate, the Registry and Mr Selley. It reads (with spelling and grammar retained):

Dear All

I refer to an article in the Adelaide Advertiser 3rd December 2016 entitled ‘No brotherly love’ which referred to me as an ‘undischarged bankrupt’, ‘a vexatious litigant’ and ‘missing’.

Given this ‘trial by newspaper’ it is my firm belief that my bankruptcy appeal (Mr Selley’s re-branded application to dismiss) has been further compromised.

There has been a formal application made to AFSA by myself and the person authorized to liaise with Mr Naudi on my behalf, to remove Mr Naudi and Meertens as bankruptcy trustee. Mr Naudi has a gross conflict of interest as ex Director of the Court appointed liquidator of Bonshaw Pty Ltd.

Therefore it would be entirely inappropriate for Mr Naudi and/or his legal representatives, Charlton Rowley to be present, acting on his behalf as their interests are one and the same.

I have requested that this hearing be deferred until such time as AFSA makes a determination on the removal of Mr Naudi and Meertens and a new bankruptcy trustee appointed. I have not had the courtesy of a reply from either her Honor’s chambers or from the South Australian registry.

Therefore I will boycott this hearing as a meaningless sham as no attention has been paid to my legal rights. I refuse to lend legitimacy to this pretense of a fair trial that is essentially a box-checking exercise.

My legal rights are being ignored in this unfair and egregious circus, where my objections are never responded to, and my Affidavits and evidence rejected.

My wife has been denied as a McKenzie friend by Justice Charlseworth and I don’t have the capacity to self represent as I have told your Honor and other Judicial members repeatedly on Court record. You still chose to ignore that.

Your sincerely

Campbell Irwin

CC:Chief Justice Allsop

(4)    Mr Selley sent a response to the appellant at 9:31am on the following day, attaching a copy of my orders of 4 October 2016. It is appropriate that I also set that email out in full:

Dear Mr Irwin

Tomorrow’s hearing concerns your Appeal which you have taken no steps to prosecute for months.

The hearing has been scheduled to hear argument on applications which you foreshadowed and were given leave to bring but elected not to and my client’s application for dismissal or, in the alternative, security for costs.

Further, I remind you of paragraph 17 of the Orders made by her Honour on 4 October 2016 (copy attached) setting down for hearing tomorrow an oral application made at the hearing on 4 October after your departure that your Appeal be dismissed for reason of that departure pursuant to section 25(2B)(bb) of the Federal Court Act.

I remind you that on 4 October 2016 I emailed you to inform you of the fact of that application and the implications of any non-attendance by you at the hearing scheduled for tomorrow.

I warn you that should you fail to attend the hearing tomorrow, my client will press for an order for dismissal pursuant to section 25(2B)bb) and/or Rule 36.74 and you ought note that Rule 17.04 permits the Court to proceed to hear and determine my client’s current applications in your absence.

Regards

32    The affidavit of Mr Selley annexed a transcript of a hearing before the Supreme Court at which judgment was delivered and at which the appellant did not attend. In dismissing the appellant’s appeal, I have not taken into account the circumstance that the appellant did not attend on the day in question before the Supreme Court, nor do I draw any inference or engage in any supposition as to why he may not have done so.

33    Having regard to the appellant’s acknowledgment that he authorises his wife to send emails on his behalf, which he reads and agrees, I infer that the email of 5 December 2016 was, if not drafted by the appellant, sent on his behalf and with his knowledge and consent.

PRINCIPLES

34    The power conferred under s 25(2B)(bb)(ii) of the Act is discretionary. The power is enlivened in the event that an appellant does not attend a hearing relating to the appeal. The phrase “relating to the appeal” is wide enough to encompass not only a hearing of the merits of the appeal itself, but a case management hearing of the kind held in this action on 22 August 2016 and a hearing set down for the purpose of argument on an interlocutory issue arising on the appeal. The hearing of 7 December 2016 was such a hearing.

35    Section 25(2B)(bb)(ii) of the Act does not contain express mandatory considerations to be taken into account in the exercise of the discretion. The discretion is nonetheless to be exercised judicially, having regard to the particular circumstances of the case. Importantly, s 25(2B)(bb)(ii) of the Act is a civil practice and procedure provision for the purposes of s 37M of the Act. It provides:

37M The overarching purpose of civil practice and procedure provisions

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

(a)    according to law; and

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

(2)    Without limiting the generality of subsection (1), the overarching purpose 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.

(3)    The civil practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.

(4)    The civil practice and procedure provisions are the following, so far as they apply in relation to civil proceedings:

(a)    the Rules of Court made under this Act;

(b)    any other provision made by or under this Act or any other Act with respect to the practice and procedure of the Court.

36    Section 25(2B)(bb)(ii) of the Act contemplates that an appeal may be dismissed without the Court first having heard and determined the appeal on its merits. In that regard, the Act contemplates that the “just resolution” of an appeal will not in every case require that the substantive issues raised on the initiating documents be heard and finally determined. Read together, s 25(2B)(bb)(ii) and s 37M(1) of the Act contemplate that the purpose of the just resolution of a particular dispute according to law and as quickly, inexpensively and efficiently as possible may be achieved in a particular case by the dismissal of an action other than on its substantive merits.

37    Section 37M(2) enumerates, without exhaustion, some of the objectives to be achieved by the civil practice and procedure provisions in accordance with their overarching purpose. Subsections 37M(2)(a) to (d) each refer to considerations affecting not only the parties to a particular dispute, but to the effective administration of justice across the whole of the Court more generally. Construed as a whole, the reference in s 37M(1) to the “just resolution of disputes” is to be given a wide meaning, so as to encompass considerations affecting not only the interests of the parties in a particular proceeding, but the effective resolution of all disputes pending in the Court. The just resolution of “disputes” in the Court may well be served by the application of a civil practice and procedure provision in a manner that advances the wider objectives specified in s 37M(2) even though the interests of individual litigants may be adversely affected in the particular case, and perhaps seriously so. The terms of s 37M recognise that the judicial and administrative resources available for the purposes of the Court are not unlimited.

38    It is the obligation of a party to an action in the Court to conduct the proceeding in a way that is consistent with the overarching purpose: s 37N.

39    The overarching purpose of s 37M does not include the objective of punishing a litigant in respect of his or her conduct in a proceeding. Having said that, it must be recognised that many civil practice and procedure provisions empower the Court to make orders having the practical effect of imposing an adverse and serious consequence upon a party where the party has departed in some way from the requirements of some other civil practice and procedure provision or an order made pursuant to such a provision. The purpose for imposing the consequence is not, however, to punish the party concerned, but to promote the overarching purpose stated in s 37M of the Act.

40    It is to be recognised that in a particular case there will be countervailing considerations weighing for and against the exercise of a discretionary power in a particular way. Relatedly, there may, in a particular case, be more than one way to achieve the overarching purpose of a civil practice and procedure provision conferring a discretionary power. In such a case, s 37M(3) mandates that the Court exercise the power in a way that best promotes that overarching purpose.

APPLICATION OF PRINCIPLES

41    There were, in the circumstances of this particular case, a number of considerations weighing against the exercise of the power conferred under s 25(2B)(bb)(ii).

42    First, the appellant may be prejudiced by the dismissal of his appeal without there having been any determination of the merits of the issues arising on the appeal. In weighing that consideration, I have assumed (without deciding) one or more of the grounds of appeal is arguable.

43    Second, I am satisfied that appellant genuinely perceives that the respondent and his advisers, the trustee of his bankrupt estate, the Registry and indeed the Court itself are together involved in a conspiracy to defeat his interests. I am satisfied that the appellant’s conduct in the proceedings is largely influenced by that perception. I proceed on the assumption that the perception is honestly held and that this perception explains the appellant’s conduct in the proceedings, including his departure from the case management hearing on 4 October 2016 and his conduct in failing to attend the hearing on 7 December 2016. I find that his conspiracy theory is tightly held, including in respect of the perceived involvement of the Court itself in the conspiracy.

44    Third, I am mindful that the appellant did in fact attend at the case management hearing on 22 August 2016 and for most of the hearing on 4 October 2016. It is ultimately unnecessary for me to determine whether the appellant’s conduct in departing the hearing on 4 October 2016 would be sufficient, of itself, to enliven the power under s 25(2B)(bb)(ii) of the Act. I am satisfied that the power is enlivened by reason of the appellant’s failure to attend the hearing on 7 December 2016 at all. Even if the appellant’s failure to attend a part of the hearing on 4 October 2016 was insufficient to enliven the power, the appellant’s conduct on that day is nonetheless a relevant consideration in the exercise of my discretion.

45    Fourth, I have borne in mind the appellant’s status as a self-represented litigant and the obvious disadvantages suffered by persons who appear before this Court without the assistance of legal representation. The Court should be slow to visit consequences upon a self-represented litigant for conduct in a proceeding, especially if it appears that the litigant may not fully appreciate the potential application of the Act in the proceedings, including the potential operation of provisions such as s 25(2B)(bb)(ii). I give further consider to that issue below.

46    Fifth, it is relevant that the hearing on 7 December 2016 was fixed for argument on parts of the Competency Notice filed by the respondent and on an interlocutory application, also filed by the respondent. The respondent’s application that the appeal be dismissed pursuant to s 25(2B)(bb)(ii) of the Act was also set down for argument. The respondent was the party with the responsibility of prosecuting all of the matters set down for argument on that day. Although the hearing was also set down for argument on any application the appellant might have made for an order that I disqualify myself, the appellant was not required to make any such application and he ultimately filed no affidavit deposing to the facts upon which he would rely on such an application in any event.

47    In the circumstances, it remained open to the Court to either adjourn the hearing or to proceed to determine the various interlocutory issues on their merits in the appellant’s absence. It was necessary to assess which of the alternative courses of action best promoted the case management principles.

48    In making that assessment I placed considerable weight on the risk that the appellant would not attend at future hearings related to the appeal. The following considerations were relevant to that assessment.

49    The appellant departed the Court on 4 October 2016 after being reminded that I would take any improper conduct into account in determining whether the appellant would, at future hearings, be granted leave to be assisted by his wife as a McKenzie friend. I had also informed the appellant and his wife that the email that had been sent to my associate (MFI-A2) lacked the degree of courtesy that is to be expected of all litigants before the Court, whether legally represented or not. Further, the departure occurred in circumstances where the appellant himself had, in the email to my associate, set out the provisions of s 25(2B)(bb)(ii) of the Act. In all of the circumstances I have described, I infer that by abruptly departing the proceedings the appellant intended to make a dramatic statement of protest directed at both the Court and the respondent, and that he did so knowing that his conduct was improper and intending that his departure would be disruptive.

50    It appears from the content of the appellant’s email to my associate that he considered that the requirement for a case management hearing was an unusual and oppressive requirement that had been applied to him but not to other persons invoking the appellate jurisdiction of the Court. The email indicates that the appellant was disgruntled with the progress or outcome of proceedings pending in the Supreme Court. As I have said, his email alleged a conspiracy involving myself and the Chief Justice of the Supreme Court who was, as I have said, described in the email as my “ex employer”. I assume that by that phrase the appellant sought to allege that this appeal had been allocated to me as a single judge because in 2002 I had been seconded, as a solicitor employed by the South Australian Attorney-General’s Department, to work for the Solicitor-General for the State of South Australia, now the Chief Justice of the Supreme Court. I infer that the appellant perceived that it was the Chief Justice of the Supreme Court who had taken steps to ensure that this appeal was to be determined by me as single judge, supposedly in the furtherance of a conspiracy by the judiciary (and others) against the appellant.

51    I infer from the appellant’s submissions at the hearing on 4 October 2016 and from his conduct in sending the email of 5 December 2016 that he subjectively believed that his legal rights in the proceedings were being “ignored”. His decision to “boycott” the hearing on 7 December 2016 was, I find, intended as a further protest explained by his perception that there is a conspiracy of actors intent on unlawfully defeating his legal interests, including his interests in exercising his rights to appeal the Federal Circuit Court judgment. Having regard to the whole of the history of the appeal as I have described it, I considered that the appellant’s perceptions would continue to influence or dictate his conduct in the proceedings so that the risk of the appellant failing to attend at other hearings relating to the appeal was unacceptably high. The appellant’s subjective loss of confidence in the Court and its procedures was, in my opinion, as immovable as it was unreasonable.

52    I am satisfied that the appellant chose to be absent from the hearing on 7 December 2016 fully appreciating that his failure to attend might result in the dismissal of his appeal and knowing that the Court would hear argument from the respondent on that day in respect of that very issue. He was notified of the application by emails from Mr Selley in circumstances where he had expressly agreed on 4 October 2016 that documents that are required under the Rules to be served personally upon him may instead be served by way of email transmission.

53    Even if the appellant considered he had proper grounds for an adjournment of the proceedings, he did not attend at the commencement of the hearing to make an oral application to have the hearing deferred, nor did he file and serve an adjournment application. I should add for completeness that had the appellant made an adjournment application merely on the ground that he sought to have the trustee of his bankrupt estate removed, I would not have granted the application on that ground in any event.

54    Further, insofar as the appellant’s failure to attend is in any way explained by a conviction on his part that I should disqualify myself, the appellant was expressly informed on 4 October 2016 that if he sought to make such an application he should file an affidavit deposing to the facts upon which he relied. The time frame for the filing of the affidavit was fixed at the request of the appellant himself. He did not file an application or affidavit within that time frame. I should further add that had the appellant made an application loosely alleging fraud against the judiciary and a connection between this Court and the Chief Justice of the Supreme Court, as apparently suggested in his email marked MFI-A2, I would not have disqualified myself on the basis of the allegation.

55    The discretion to dismiss the appeal pursuant to s 25(2B)(bb)(ii) of the Act fell to be exercised in all of the circumstances I have described. The overarching purpose stated in s 37M of the Act was best promoted by the dismissal of the appeal because, among other factors, the appellant’s non-attendance was accompanied by a disruptive attitude which, in turn, evidenced an unwillingness to comply with his obligations under s 37N of the Act.

56    The administrative and judicial resources of the Court should not be expended in preparing for hearings at which the appellant would not attend (whether as prosecutor or contradictor) except in accordance with his own desires and impulses. Although the respondent may not have been forensically prejudiced had argument proceeded in the appellant’s absence on the particular issues set down for hearing on 7 December 2016, I determined that the respondent should not be put to further costs of an interlocutory hearing which the appellant himself had described as a “meaningless sham”, a “pretense” [sic] and “essentially a box ticking exercise”. Nor should the respondent be put to the costs of otherwise defending an appeal in respect of which which there was an unacceptable risk that the appellant would fail to attend.

57    Mr Selley’s email of 6 December 2016 fairly put the appellant on notice that the costs of the respondent’s application for an order pursuant to s 25(2B)(bb)(ii) of the Act would be sought. It was in those circumstances that the order as to costs be made.

APPROPRIATE USE OF EMAIL

58    The appellant’s email of 5 December 2016 was sent in breach of my order of 4 October 2016 that the parties in the action not send emails to my associate. As the appellant appears to assert that other communications to my associate have not been read or responded to, it is appropriate that I give written reasons for making the order that I did on 4 October 2016.

59    A party to proceedings before this Court does not have an absolute right to correspond with the chambers of a presiding judge by way of email correspondence to the judge’s associate. The liberty to send correspondence to the associate to a judge is to be exercised sparingly and with the utmost professional courtesy. The email inbox of an associate to a judge of the Court is not an arena for combat or rhetoric. Nor is the associate’s inbox to be regarded as a repository for uninvited submissions, assertions of fact or accusations of fraud or misconduct against another party or third parties to the proceedings.

60    Practice Note CPN-1 prescribes some of the protocols in respect of such communications. It provides:

15.1    At all times, parties are expected to communicate courteously with each other, the Court and all Court staff.

15.2    In their communication with chambers staff of a judge or registrar, unless in the nature of an ex parte application, parties should only communicate with chambers where it is appropriate to do so, and such communications must always be open and uncontroversial. Communications with chambers staff of a judge or registrar must only occur with the prior knowledge or consent of all other parties to the proceeding where any issue of controversy exists or is likely to arise in respect of the issue being addressed. In these circumstances, this is not satisfied by mere copying in of others to the communication, which may be adequate in entirely uncontroversial communications.

61    The protocols are not to be regarded as expressing a mere convenience on the part of the Court. Rather, the protocols are designed to promote fairness, integrity and efficiency in litigation. Where emails from one party are sent to an associate of the presiding judge without the foreknowledge or consent of the other party, the potential for unfairness, whether real or apprehended, is obvious. Absent the leave of the Court, submissions of substance in an action are to be made in a proceeding by way of oral argument transcribed in open court or written submissions properly filed and served in the action, and not by way of unsolicited emails. The efficient use of the judicial and administrative resources of the Court is not served by parties expecting that lengthy and unsolicited submissions directed to the associate of a presiding judge (often expressed in a discourteous tone) will be considered, read and responded to.

62    The appellant in the present case was reminded of the appropriate use of email communications on 16 August 2016 (MFI-A1). The appellant ignored that reminder and sent the email marked MFI-A2 to my associate. The appellant was again reminded on 22 August 2016 and 4 October 2016 that email communications to my associate would not be read by me. The appellant nonetheless sent a further email to my associate on 5 December 2016. That email came to my attention as an exhibit to the affidavit of Mr Selley.

63    In accordance with the reminders that have been given to the appellant, I have not taken into account any other email communications from the appellant other than those referred to in these reasons for judgment. To the extent that the appellant’s email of 5 December 2016 complains that his “affidavits and evidence” have been “rejected”, it should be noted that the appellant filed no affidavits in the proceedings and otherwise adduced no evidence except for a printout of an email chain handed up on 4 October 2016 in support of his concerns about Mr Naudi. For completeness, that email has been marked for identification MFI-A3.

CONCLUSION

64    For the reasons given above, I made the following orders:

1.    Pursuant to s 37P(3)(f) of the Federal Court of Australia Act 1976 (Cth) the requirements in r 36.74(2) of the Federal Court Rules 2011 (Cth) are waived in relation to the respondent's application for an order that the appeal be dismissed.

2.    The appeal is dismissed.

3.    The appellant is to pay the respondent’s costs of and incidental to the appeal.

4.    The appellant has leave to inspect, but not to copy, the transcript of today’s hearing in the South Australia District Registry of the Court.

Associate:

Dated:    7 December 2016