Federal Court of Australia

Jang v Trustees of the Property of Lee, a bankrupt [2022] FCA 1576

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time filed by the applicant on 12 May 2022 be dismissed.

2.    The applicant pay the respondent’s costs of the application on an indemnity basis.

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

REASONS FOR JUDGMENT

(Revised from transcript)

WIGNEY J:

1    This matter concerns an application by the applicant under r 36.05 of the Federal Court Rules 2011 (Cth) for an extension of time to file a notice of appeal in respect of proceedings concerning property vested in the applicant’s daughter-in-law’s trustees in bankruptcy: Jang v Trustees of the Property of Lee (bankrupt) [2022] FCA 99.

2    The matter was referred to my docket in July 2022 to hear and determine the application for an extension of time and to case manage the matter prior to its potential listing in the Full Court sitting period in November 2022.

Case management hearing on 19 July 2022

3    The matter was listed for case management hearing on 19 July 2022. At the hearing, counsel for the respondent indicated that it had not been served with all of the documentation relevant to the appeal. Counsel for the applicant sought an extension of time to amend its notice of appeal, with that application to be heard at some later time. It should be noted in that respect that the draft notice of appeal purported to have been filed along with the application for an extension of time essentially contained no grounds of appeal.

4    I ultimately ordered that the applicant file and serve a draft notice of appeal before 26 July 2022, and listed the application for an extension of time for hearing on 3 August 2022, along with timetabling orders up to that date.

Attempted discontinuation of the proceeding

5    On 29 July 2022, the applicant communicated to the Court via email that “the Applications in this matter will not proceed and the Appellant consents to them being dismissed”. The parties were advised by the Court’s registry that the appropriate course for discontinuing the proceeding was to file a notice of discontinuance or provide consent orders agreeing to the dismissal of the proceeding.

6    On 2 August 2022, the applicant attempted to file a notice of discontinuance in respect of the whole of the proceeding by consent of all parties. The parties notified the Court of this development, and the hearing on 3 August 2022 was accordingly vacated.

7    However, as it emerged from correspondence between the Court’s registry and my chambers, the incorrect notice of discontinuance form (Form 48) had been used by the parties. The correct position, with regard to the nature and context of this proceeding, is stated in r 36.73 of the Rules, which provides that “[a]n appellant may discontinue an appeal by filing a notice of discontinuance of the appeal, in accordance with Form 126…” As such, the lodged notice of discontinuation was not accepted for filing. The Court’s registry advised the parties of this, and instructed the parties to refile the notice of discontinuance using the appropriate form required by r 36.73. No attempt to refile was made by the applicant.

Interlocutory application for dismissal and costs

8    On 31 August 2022, the respondent filed an interlocutory application and supporting affidavit seeking orders that the application for an extension of time be dismissed and that the applicant pay the respondent’s costs on an indemnity basis. The parties were contacted by the Court with a view to listing the application for interlocutory hearing, however received no response from the parties until 27 October 2022. That correspondence stated, in effect, that the applicant’s legal representatives had filed a notice of ceasing to act and no longer represented the applicant. The notice of ceasing to act identified another law firm as a possible contact for the applicant, however the nominated law firm subsequently clarified that as being in error.

9    In light of the applicant no longer being legally represented and the respondent’s application to have the proceeding dismissed with costs, the matter was listed for case management hearing on 9 November 2022. That case management hearing was subsequently adjourned to 16 November 2022, and then adjourned again until 30 November 2022, to allow the respondent adequate time to establish contact with applicant and notify her of the upcoming hearing.

Respondent’s attempts to contact the applicant

10    The respondent has filed a lengthy affidavit from a solicitor, which deposes to the extensive steps that have been taken to endeavour to contact the applicant in relation to today’s application. I am satisfied that appropriate attempts have been made to contact the applicant, and the applicant has either been uncontactable, or has ignored those attempts to contact her. I note that the matter was called on for hearing at 9.45am today, and the matter was called outside the courtroom three times, with no appearance by the applicant.

11    I am satisfied in all the circumstances, particularly given the apparent desire on the part of the applicant some time ago to discontinue the proceedings, that it is appropriate for the applicant’s application for an extension of time to be dismissed. That dismissal is essentially for want of prosecution of the appeal or the application for an extension of time, and failing to comply with directions of the court, and failing to attend a hearing relating to the appeal as required.

12    The court’s power to dismiss an appeal in those circumstances is pursuant to rr 36.74 or 36.75 of the Rules. The sole remaining issue is in relation to costs. I am persuaded in all the circumstances that this was a case where there was never reasonable prospects of the applicant appealing the decision. The draft notice of appeal that accompanied the application for an extension of time contained no grounds and, in due course, it was apparent that when legal advice was received by the applicant, there were no viable grounds – hence the decision to withdraw the appeal.

13    Perhaps equally significantly is the fact that the applicant, following her communication of an intention to withdraw her appeal, has effectively abandoned the proceedings and has made no effort whatsoever to regularise the withdrawal of the proceeding, and the respondents have been put to considerable expense in endeavouring to finalise the proceedings. That fact alone is, in my view, sufficient to justify an order for indemnity costs.

Disposition

14    It follows that, in all the circumstances, the appropriate orders to make are that the application for an extension of time filed by the applicant on 12 May 2022 be dismissed and the applicant pay the respondent’s costs of the application on an indemnity basis.

Associate:

Dated:    21 December 2022