Federal Court of Australia
Jafari v 23 Developments Pty Ltd  FCA 651
Jafari v 23 Developments Pty Ltd  FCCA 2379
VID 636 of 2020
Date of judgment:
PRACTICE AND PROCEDURE — continued non-compliance with court orders — where appellant given repeated opportunities to comply with court orders — default judgment awarded under r 5.23 of Federal Court Rules 2011
National Practice Area:
Commercial and Corporations
General and Personal Insolvency
Number of paragraphs:
2 June 2022
Counsel for the Appellant:
The Appellant was self-represented
Counsel for the Respondent:
Ms B Evert
Solicitor for the Respondent:
DATE OF ORDER:
THE COURT ORDERS THAT:
1. The appeal be dismissed with costs.
1 This proceeding concerned an appeal brought by Mr Kourosh Jafari (Appellant), seeking to challenge the decision of Judge Burchardt in Jafari v 23 Developments Pty Ltd  FCCA 2379. Before Judge Burchardt, Mr Jafari contended that the judgment creditor’s solicitor, Ms Bettina Evert, was not duly authorised to make an affidavit supporting a bankruptcy notice and as a consequence the bankruptcy notice was invalid and ought be set aside. Judge Burchardt rejected this ground of review.
2 The Appellant filed a notice of appeal on 23 September 2020. The Appellant sought to relitigate various matters that were initially determined by Justice Elliot in the Supreme Court of Victoria in Jafari v 23 Developments Pty Ltd  VSC 404.
3 On 7 July 2021 I set the matter down to be heard on 16 March 2022. On that day I also made the following orders to prepare the matter for appeal:
4 In accordance with Practice Note APP2:
(a) by 30 July 2021, the appellant file and serve the appellant’s complete parts A and B of the Appeal Book;
(b) by 4:00 p.m. on 6 August 2021, the appellant file and serve on the respondent an outline of submissions and chronology of the relevant events;
(c) by 4:00 p.m. on 27 August 2021, the respondent file and serve on the appellant an outline of submissions, a chronology of the relevant events and a list of materials to be included in part C of the Appeal Book;
(d) by 4:00 p.m. on 3 September 2021, the appellant file and serve on the respondent any submissions in reply;
(e) by 4:00 p.m. on 10 September 2021, the appellant file and serve on the respondent part C of the Appeal Book.
5 The submissions referred to in Order 4 of these Orders are not to exceed 10 pages in length, including any annexures.
6 By 4:00 p.m. on 10 September 2021, each party file and serve a list of authorities and legislation in accordance with Practice Note APP2.
4 To date, there has been no compliance with the above orders.
Circumstances of the Appellant’s default
5 On 28 February 2022, my Associate caused an email to be sent to the parties noting that orders 4, 5 and 6 had not been complied with. My Associate, at my direction, advised the parties to submit the relevant documents pursuant to orders 4, 5 and 6 by 9:00 a.m. on Thursday, 3 March 2022.
6 On 1 March 2022, the Appellant wrote to my Associate informing him that he had filed an interlocutory application with a supporting affidavit, asking for a stay of a bankruptcy notice and an adjournment of the hearing date. The Appellant stated that he had been preparing for a proceeding in the Supreme Court of Victoria against the Respondent and others, which the Appellant believed would impact the proceeding before me and indeed whether this proceeding should continue.
7 On 1 March 2022, the Appellant filed an interlocutory application with the Court seeking to stay the Bankruptcy Notice BN 247555 (Bankruptcy Notice) as well as adjourn the hearing date listed for 16 March 2022.
8 On 8 March 2022, I heard the Appellant’s interlocutory application and made the following orders:
THE COURT ORDERS THAT:
1. The hearing listed at 9:30 a.m. on 16 March 2022 is vacated.
2. A case management hearing is listed at 9:30 a.m. on 2 June 2022.
3. On or before 9:30 a.m. on 27 May 2022, the Appellant forward an email to the Associate of Anderson J setting out the steps that the Appellant has taken in relation to the Appellant’s application to the Supreme Court of Victoria.
9 At the case management hearing on 8 March 2022, I informed Mr Jafari that if he did not comply with my orders, that I would dismiss the proceeding.
10 On 27 May 2022, Mr Jafari sent the following email to my Associate:
I am writing to you in respect to the order of His Honour Justice Anderson's order (3) dated 8 March 2022.
All the necessary forms and applications are prepared to issue a writ in THE SUPREME COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION MAJOR TORTS LIST.
The Statement of Claim is being finalized by a (pro bono) Senior Counsel. Unfortunately the SC has been very busy with his cases in the High Court and the Appeal Court during April and May. He only finished couple of days ago and is working on my Statement of Claim.
I am anticipating to finalise my writ sometimes next week in the Supreme Court. Furthermore, a (pro bono) solicitor who's been helping me unfortunately has been diagnosed with Covid-19 and is resting at home and hopefully will recover by next week.
11 After receiving the above email, my Associate directed Mr Jafari to provide the names of both the Senior Counsel and the solicitor that Mr Jafari claimed were assisting him. Mr Jafari did not respond to my Associate’s query.
12 On 2 June 2022, the parties came back before me at a case management hearing. Ms Evert informed me that the Appellant had still not adhered to my orders and asked, on this basis, for the appeal to be struck out.
13 Mr Jafari, on multiple occasions, has failed to comply with the orders of this Court. In those circumstances, pursuant to r 5.23 of the Federal Court Rules 2011 (Cth), I will dismiss the appeal.
14 The appeal will be dismissed with costs.