Federal Court of Australia

Zirk-Sadowski v University of New South Wales (No 2) [2023] FCA 897

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s interlocutory application for default judgment pursuant to r 5.23 of the Federal Court Rules 2011 (Cth) made on 11 July 2023 be dismissed.

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

REASONS FOR JUDGMENT

ANDERSON J

INTRODUCTION AND BACKGROUND

1    On 11 November 2022, the applicant filed an originating application for relief under s 39B(1A)(c) of the Judiciary Act 1903 (Cth) (Originating Application). The Originating Application was supported by an affidavit, affirmed by the applicant on 11 November 2022. On 21 February 2023, the applicant also filed a Concise Statement, purportedly in support of the relief sought in his Originating Application.

2    The applicant is self-represented.

3    At the first case management hearing in this proceeding on 1 June 2023, the applicant applied for default judgment against the first and second respondents pursuant to r 5.23 of the Federal Court Rules 2011 (Cth) (Rules). The applicant contended that the respondents were in default within the meaning of r 5.22 of the Rules principally on the basis that the respondents had not filed a defence within 28 days of service of the Originating Application or the Concise Statement as required by r 16.32 of the Rules.

4    On 1 June 2023, I made orders which, amongst other things, provided that:

(a)    the applicant’s application for default judgment be dismissed; and

(b)    the applicant be granted leave to file and serve an amended originating application by 29 June 2023.

5    My reasons for those orders were delivered ex tempore: Zirk-Sadowski v University of New South Wales [2023] FCA 805.

6    The applicant filed an amended originating application on 22 June 2023 (Amended Originating Application).

7    At the next case management hearing, which was held on 11 July 2023, the applicant sought, amongst other things:

(a)    orders entering default judgment against the respondents pursuant to r 5.23 of the Rules on the basis of the respondents’ failure to file a genuine steps statement;

(b)    alternatively, a self-executing order pursuant to r 5.21 of the Rules providing that, if the respondents did not file genuine steps statements by a date specified by the Court, the applicant be awarded judgement against the respondents;

(c)    alternatively, “leave to file an application for summary judgment”.

8    After hearing oral submissions by the parties, I informed the parties that:

(a)    I was not inclined to enter judgement against the respondents on the basis of any alleged failure to file a genuine steps statement; and

(b)    the proceeding would proceed in accordance with draft timetabling orders submitted by the respondents in advance of the case management hearing.

9    I then made orders timetabling the proceeding for a final hearing (Timetabling Orders).

10    After the hearing, the applicant sent two emails to my chambers in the evening of 11 July 2023 (11 July 2023 Emails). In those emails, the applicant sought various additional orders not sought at the case management hearing, and also sought to re-agitate his application in relation to summary judgment. The applicant sent a further email to chambers on 12 July 2023 attaching “revised proposed orders” which he said “were in accordance with and in relation to” the submissions made in his 11 July 2023 Emails (Revised Proposed Orders).

11    On 12 July 2023, my chambers emailed the applicant and informed him that I had considered the requests in his emails, and refused to make the orders sought.

12    In a subsequent email sent on 12 July 2023, the applicant requested that I provide “reasons in relation to [the applicant’s] submissions and [the Court’s] decisions not to grant the orders in default, the directions for making a summary judgment application, and for the self-executing order which [the applicant] sought during the hearing”.

13    I set out my reasons in response to the applicant’s request below.

CONSIDERATION

Default judgment application and request for self-executing orders

14    The background to the applicant’s default judgment application can be stated briefly. On 11 November 2022, the applicant filed the Originating Application, by which the applicant sought judicial review of three decisions of the Fair Work Commission. On that day, the applicant also filed a genuine steps statement pursuant to r 8.02 of the Rules. Neither of the respondents have filed a genuine steps statement.

15    The applicant submits that the respondents are in default, within the meaning of r 5.22 of the Rules, as they did not file a genuine steps statement before the return date fixed on the Originating Application (as required by r 5.03 of the Rules).

16    In the present case, an issue arises as to whether the respondents are required to file a genuine steps statement in this proceeding. Rule 8.02(1) of the Rules provides that an applicant is only required to file a genuine steps statement “[i]f Part 2 of the Civil Dispute Resolution Act [2011 (Cth)] applies”. Rule 5.03(1) provides that a respondent must file the respondent’s genuine steps statement “if an applicant has filed a genuine steps statement”. Within Part 2 of the Civil Dispute Resolution Act 2011 (Cth) (CDR Act), s 6(3) provides that a “genuine steps statement need not be filed … in relation to proceedings that are wholly excluded proceedings”. Section 6(4) provides that a genuine steps statement must be filed “in relation to proceedings that are in part excluded proceedings, but the statement need not relate to the parts of the proceedings that are excluded proceedings”. Section 16(1)(c) of the CDR Act provides that proceedings are excluded proceedings “to the extent that they are proceedings under … the Fair Work Act 2009 (Cth)”.

17    The respondents both submitted that the present proceeding was a proceeding under the Fair Work Act 2009 (Cth) and therefore was an excluded proceeding under the CDR Act. The applicant submitted that this proceeding was a proceeding under the Judiciary Act 1903 (Cth), and was not an excluded proceeding.

18    It is not necessary to resolve whether this proceeding is a wholly or partly “excluded proceeding”, and therefore whether the respondents were each required to file a genuine steps statement. This is because, as the respondents correctly observe, s 10(2) of the CDR Act relevantly states:

A failure to file a genuine steps statement in proceedings does not invalidate the application instituting the proceedings, a response to such an application or the proceedings.

19    In circumstances where s 10(2) of the CDR Act provides that a response to an application will not be invalidated by a failure to file genuine steps statement, it is difficult to understand how the applicant could be entitled to default judgment by reason of any failure by the respondents to file genuine steps statements. In any case, the applicant has not pointed to any authority in which the Court has awarded default judgment to an applicant solely on the basis of a respondent’s failure to file a genuine steps statement. I therefore dismiss the applicant’s application for default judgment.

20    I also refuse the applicant’s request that the Court make a self-executing order pursuant to r 5.21 of the Rules providing that, if the respondents do not file genuine steps statements by a date specified by the Court, the applicant be awarded judgment against the respondents.

21    Rule 5.21(d) of the Rules provides that “[a] party may apply to the Court for an order that, unless another party does an act or thing within a certain time … the party have judgment against the other party”. That rule must be exercised in accordance with the overarching purpose identified in s 37M(1) of the Federal Court of Australia Act 1976 (Cth) (Act) to facilitate the “just resolution of disputes according to law” and as “quickly, inexpensively and efficiently as possible”: Derrimut Health & Fitness Pty Ltd v Revival 24:7 Gym Pty Ltd (No 2) [2020] FCA 1581 at [51]. The courts are concerned not only with justice between the parties, which remains their priority, but also with the public interest in the proper and efficient use of public resources: Aeon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at [23].

22    Having regard to these authorities, and bearing in mind that the proceeding has been timetabled for a final hearing (as discussed further below), I am not satisfied that ordering the respondents to file a genuine steps statement at this time as proposed by the applicant would be consistent with the overarching purpose in s 37M(1) of the Act. I therefore decline to make the self-executing order sought by the applicant.

Request for directions concerning summary judgment application

23    At the 11 July 2023 case management hearing, the applicant sought “leave to file an application for summary judgment”. In the first of the 11 July 2023 Emails (sent by the applicant at 6.28pm), the applicant stated “[I]f applicable, I am pursing a summary judgment supported by the following legal authority [citing Superior IP International Pty Ltd v Ahearn Fox Patent and Trade Mark Attorneys [2012] FCA 28]. In the second of the 11 July 2023 Emails (sent by the applicant at 9.04pm), the applicant stated:

I am seeking directions under the Rule 1.21(a) of the Federal Court Rules 2011 (Cth) in relation to filing my application on affidavit for summary judgement. I am seeking a summary judgement in relation to the parts of the relief sought in my claim which relies on the Copyright Act 1968 (Cth) and on the Commonwealth of Australia Constitution Act (Cth), available at the following link … This point pertains specifically to the filing of a Genuine Steps Statement and its associated provisions, which are quoted below for reference:

“For both administrative law and constitutional law cases, parties should consider the requirement to file a Genuine Steps Statement (Form 16) - see r 8.02 of the Federal Court Rules and the Civil Dispute Resolution Act 2011 (Cth) (including sections 6, 7, and 16).”

Considering the provisions outlined in sections 6, 7, and 16 of the Civil Dispute Resolution Act 2011 (Cth), it becomes evident that the Respondents were obligated to respond to the filed Genuine Steps Statement by submitting their own Genuine Steps Statement, as mandated by Rule 5.03 of the Federal Court Rules 2011.

24    On the applicant’s correspondence, it is not entirely clear whether the applicant is making an application for summary judgment, or is simply seeking directions under r 1.21(a) of the Federal Court Rules 2011 (Cth) as to the procedure for filing an application for summary judgment.

25    Section 31A(1) of the Act provides:

(1)     The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a)     the first party is prosecuting the proceeding or that part of the proceeding; and

(b)     the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.

26    Rule 26.01(1)-(2) of the Rules relevantly provides:

(1)     A party may apply to the Court for an order that judgment be given against another party because:

…

(e)     the respondent has no reasonable prospect of successfully defending the proceeding or part of the proceeding.

(2)     The application must be accompanied by an affidavit stating:

(a)     the grounds of the application; and

(b)     the facts and circumstances relied on to support those grounds.

27    As at the date of the applicant’s request, the applicant had not filed an application for summary judgment or an affidavit in support of that application. It follows that I am not in a position to consider any substantive application for summary judgment the subject of the applicant’s request. However, I would observe that, if the applicant’s application for summary judgment were to be based on the respondents’ alleged failure to file genuine steps statements (as appears to be the case based on the second of the 11 July 2023 Emails, which is extracted above), such an application would confront the difficulty that such a failure would not, of itself, establish the grounds for summary judgment as set out in s 31A(1) of the Act and r 26.01(1)(e) of the Rules. That is to say, the failure to file a genuine steps statement has no bearing on an assessment of the respondents’ prospects of successfully defending the proceeding, which is the relevant inquiry under s 31A(1) of the Act and r 26.01(1)(e) of the Rules.

28    As to the applicant’s application for directions pursuant to r 1.21(a) of the Rules, I note that in Grabovsky v Secretary, Department of Social Services [2014] FCA 1121, Edmonds J stated at [13]-[14]:

Rule 1.21 assists prospective applicants in making applications to the Court if procedures are wanting or in doubt. Where there is no specific procedure to initiate a cause of action in this Court, r 1.21 will be of relevance as it permits the Court to devise an ad hoc procedure: Browne v Commissioner for Railways (1935) 36 SR (NSW) 21 at 29.

Where, however there is a specific procedure to be followed for bringing an application to the Court, then r 1.21 will not be relevant, nor be of assistance to a prospective applicant

29    Similarly, in my opinion, where the Court has a procedure to be followed for the bringing of an application for summary judgment, as set out in r 26 of the Rules, the applicant cannot apply under r 1.21 of the Rules for a direction as to how to make that application.

30    For this reason, I decline the applicant’s request for directions pursuant to 1.21 of the Rules

Access to Microsoft Teams recordings

31    I understand from the 11 July 2023 Emails that the applicant is seeking orders that the Court make orders releasing Microsoft Teams recordings of the previous case management hearings in this proceeding.

32    I reject the applicant’s request.

33    The Court has published on its website guidance for parties concerning access to transcripts. The website states that a party may purchase the whole, or a part, of a transcript in a proceeding from the Court's authorised transcript provider. Audio recordings of Federal Court proceedings are not available other than by order or direction of the Court.

34    In the present case, the applicant has not identified any reason, let alone a sufficient reason, for the Court to order the production of audio recordings of the case management hearing.

Additional timetabling orders

35    The Timetabling Orders of 11 June 2023 provide for, amongst other things:

(a)    the order of the parties to the proceeding to be changed (orders 1-2), and the title of the proceeding to be changed accordingly (order 3);

(b)    the proceeding to be heard on 9 April 2024 (order 5);

(c)    the applicant to prepare, file and serve an Application Book in accordance with Practice Note APP 2 (comprising Part A, the Part B Index and Part C) (orders 6-7, 12.2-12.3); and

(d)    the parties to file submissions and accompanying materials in advance of the hearing (orders 8-11, 13).

36    I understand from the 11 July 2023 Emails that the applicant seeks the following additional or alternative timetabling orders:

(a)    that the applicant file notices to admit facts pursuant to r 22.01 of the Rules, instead of the Application Book (Request 1);

(b)    that the Court dispense with the requirement for the applicant to prepare, file and serve a Part B Index to the Application Book (as is presently required by order 7 of the Timetabling Orders) (Request 2);

(c)    that the respondent, rather than the applicant, prepare the Application Book (order 6 of the Timetabling Orders requires the applicant to prepare the Application Book) (Request 3);

(d)    that the parties attend a mediation (Request 4);

(e)    that the “proceedings within the trial, if it occurs, be determined by the Full Court” pursuant to s 20(3)(e) of the Act (Request 5);

(f)    that the Court issue directions, pursuant to r 1.12(a) of the Rules, concerning the procedure for amending the title of the proceeding (Request 6).

37    In considering each of these requests, I am conscious that the Court has already made Timetabling Orders in a conventional form, and which provide for the applicant’s application to proceed to a final determination without the risk of delay caused by further interlocutory applications. I am not satisfied that any of the orders proposed by the applicant would assist the Court in ensuring that this matter is heard and determined efficiently.

38    Certain of the applicant’s requested timetabling orders threaten the orderly and efficient conduct of the proceeding by proposing to abandon the filing of an Authorities Book (Request 1) and interposing additional steps in advance of the hearing (Request 4). In the case of Request 5, the applicant has not articulated any basis for the proceeding to be heard and determined, in the first instance, by the Full Court. Request 6 is redundant in circumstances where the Timetabling Orders already require the title of the proceeding to be amended. I therefore refuse to make those orders.

39    As to Request 2, the applicant correctly notes that the eBooks Practice Note (GPN-eBooks) at [8.3] provides that, in the case of Appeal eBooks, the Part B Index (being the Comprehensive Reference Index) is not required to be prepared or filed. Notwithstanding what is recorded in the Practice Note, the Court may order the parties to file and serve a Part B Index where it will assist in the just and efficient resolution of the dispute to do so. In this case, I am satisfied that a Part B Index will be of utility in hearing and determining the applicant’s claim. The applicant’s Amended Originating Application seeks judicial review of three decisions of the Fair Work Commission. The Amended Originating Application is 40 pages in length. The applicant’s “grounds of application” in the Amended Originating Application span 36 paragraphs, and are drafted in narrative form. In these circumstances, to confine the scope of any dispute, it will be helpful for the Court and the parties to have a common record of the material before the Fair Work Commission at the time of its decisions that are the subject of the applicant’s application for judicial review. That is precisely what the Part B Index provides. For this reason, I consider the requirement in the Timetabling Orders that the applicant prepare, file and serve on the respondents a Part B Index is appropriate. I therefore refuse Request 2.

40    As to Request 3, the applicant sought to rely on the Guide to Administrative or Constitutional Law cases last updated on October 2022 and published on the Court’s website. The website relevantly states:

The Judge may order an applicant, or sometimes a respondent if the applicant is self-represented, to file and serve a Court Book

41    I accept that it is within the Court’s power to direct the respondents to prepare, file and serve the Application Book in this proceeding, given that the applicant is self-represented. However, this is a matter of discretion when the Court exercises its case management powers under provisions such as s 37M, s 37N and s 37P. In my experience, the Registry of this Court is well-equipped to assist self-represented applicants in preparing application books that are consistent with the orders of the Court and any applicable practice notes. I am not satisfied that, in this case, the burden of preparing an Application Book should be borne by the respondents merely because the applicant is self-represented. I therefore refuse Request 3.

DISPOSITION

42    For these reasons:

(a)    the applicant’s application for default judgment will be dismissed;

(b)    the applicant’s request for directions pursuant to r 1.21(a) of the Rules is refused;

(c)    the applicant’s request for access to Microsoft Teams recordings is refused;

(d)    the Court refuses to make the orders requested in the applicant’s 11 July 2023 Emails.

43    Finally, it is necessary to remind the applicant of his obligations under s 37N(1) of the Act to conduct the proceeding in a way that is consistent with the overarching purpose set out in s 37M(1) of the Act. I am conscious that the applicant is self-represented. However, the obligation imposed upon parties by s 37N of the Act applies irrespective of whether a party is legally represented or is self-represented: Kennedy v Secretary, Department of Industry [2016] FCA 485 at [51]. The applicant’s claim has now been timetabled for final hearing, at which point the Court will hear and determine the substance of the applicant’s claim. The applicant should be conscious of the risk that cascading interlocutory applications brought by the applicant may undermine the efficient progress of the applicant’s claim to a final hearing.

Associate:

Dated:    3 August 2023