Federal Court of Australia

Murabito v Westview Frames and Trusses (NSW) Pty Ltd [2024] FCA 1385

ORDERS

THE COURT ORDERS THAT:

1.    The requirement in relation to service of the interlocutory application dated 2 October 2024 pursuant to r 36.74(2) of the Federal Court of Australia Rules 2011 (Cth) be dispensed with pursuant to r 1.34 of the Rules.

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

3.    The appellant pay the respondents’ costs of the appeal.

4.    The appellant pay the first respondent’s costs of the interlocutory application.

5.    In the absence of agreement on the costs payable pursuant to order 3 and or 4, costs are to be determined by a Registrar on a lump sum basis.

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

REASONS FOR JUDGMENT

CHEESEMAN J:

INTRODUCTION

1    These reasons concern an application seeking to dismiss an appeal by a bankrupt, Mr Steven Murabito, from a judgment of the Federal Circuit and Family Court dismissing his application for review of a sequestration order made against his estate by a Registrar of the Federal Circuit and Family Court: Westview Frames and Trusses (NSW) Pty Ltd v Murabito [2022] FedCFamC2G 897 (PJ). The notice of appeal was filed on 30 November 2022.

2    By interlocutory application dated 2 October 2024, the first respondent, Westview Frames and Trusses (NSW) Pty Ltd seeks an order pursuant to s 25(2B)(ba), or alternatively s 25(2B)(bb), of the Federal Court of Australia Act 1976 (Cth) (FCA Act) that Mr Murabito’s appeal be dismissed. Westview also seeks their costs of the appeal including all reserved costs and the costs of the present application. Westview was the petitioning creditor in the sequestration proceeding.

3    The second respondent is Mr Murabito’s Trustee in bankruptcy. The Trustee has sought to avoid incurring costs as much as possible in this proceeding. The Trustee has adopted a neutral position throughout the conduct of the appeal. Westview’s counsel has regularly mentioned the appearance of the Trustee at the case management hearings in the proceeding.

4    Mr Murabito has been legally represented for the majority of the time the proceeding has been on foot but the dynamic between him and his solicitors has been unorthodox. Mr Murabito’s solicitor filed a notice of ceasing to act on 19 September 2024. He is no longer legally represented. At the hearing of this application, Mr Murabito was granted leave to be assisted by his wife, Lilly Murabito, as in effect, a McKenzie friend. Mrs Murabito has worked in a clerical capacity in his former solicitor’s practice for some years. She assisted Mr Murabito in the hearing by identifying the materials which Mr Murabito sought to place before the Court and in making oral submissions on his behalf. I adjourned for a short period after Westview completed its oral submissions to enable Mrs Murabito to consult with Mr Murabito before addressing the Court. Upon the Court resuming, Mrs Murabito began by observing that Mr Murabito was anxious but indicated that she understood the issues on which Mr Murabito wished to address the Court in relation to the application and was prepared to do so. When making submissions, I observed that Mrs Murabito, who was sitting at the bar table with Mr Murabito, was careful to consult Mr Murabito as she made the submissions on his behalf. Counsel for Westview did not oppose Mrs Murabito playing this role and otherwise actively collaborated to assist Mr and Mrs Murabito to ensure that the materials they wished to put forward were arranged as best as could be managed from the bar table. The Court is grateful for the approach taken by counsel for Westview and for the role played by Mrs Murabito.

5    For the reasons which follow, I am satisfied that it is appropriate to make orders substantially as sought by Westview and to dismiss the appeal.

EVIDENCE

6    Westview relies upon two affidavits of Edwina Hall, solicitor at O’Neill Partners Commercial Lawyers, affirmed on 2 October 2024 and 21 October 2024. Ms Hall is the solicitor with the day-to-day carriage of the appeal for Westview.

7    Mr Murabito relies upon a bundle of documents including a document styled as an affidavit, dated 31 October 2024. Mr Murabito was sworn in and adopted the contents of the “affidavit” on his oath in the witness box. Westview objected to several paragraphs of the affidavit, which in the main were resolved on the basis that those parts would be subject to a state of mind limitation and otherwise be treated as submissions. I upheld Westview’s objections in relation to Mr Murabito expressing conclusions as to his medical condition, which were not supported by medical evidence, and the probative value of which was substantially outweighed by the danger that the evidence might unfairly prejudice Westview and unduly waste time.

8    An application for leave to cross-examine Mr Murabito was made during the hearing. In the circumstances of this application, I was not persuaded that leave should be granted. Given that I refused leave to cross-examine, I make no inferences of the type recognised in Browne v Dunn as a result of Westview not asking questions of Mr Murabito, including in relation to any inconsistency between the material in his affidavit and his other communications sent to the Court.

9    Westview tendered a bundle of email correspondence between Mr Murabito, the Registry and the solicitors for Westview during the period 2 October 2024 to 31 October 2024. I will address these email exchanges to the extent they are relevant below.

APPLICABLE PRINCIPLES

10    The power to make an order that an appeal be dismissed pursuant to s 25(2B) of the FCA Act may be exercised by a single judge exercising appellate jurisdiction. Section 25(2B) relevantly provides:

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; or

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

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

(ii)    failure of the appellant to attend a hearing relating to the appeal; or

…

11    The procedure by which a respondent may apply for such an order is found in r 36.74 of the Federal Court of Australia Rules 2011 (Cth) which provides:

Application to dismiss appeal

(1)    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:

(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.

(2)    An application under subrule (1) must be served on the appellant:

(a)    at the appellant's address for service; or

(b)    personally.

12    In appropriate cases, the service requirement in r 36.74(2) may be waived pursuant to r 1.34: see Eep18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 793 at [35]ff (Raper J); Nandutu v Chapman (No 2) [2021] FCA 45 at [28] (Stewart J).

13    Similarly, r 36.11(2) provides for the procedure by which any party may apply to the Court for directions in relation to the management, conduct and hearing of an appeal and, in doing so, may apply for an order dismissing an appeal for want of prosecution (r 36.11(2)(h)) or failure to comply with a direction of the Court (r 36.11(2)(j)(i)), without any service requirements.

14    Finally, r 5.23 of the Rules also empowers the Court to dismiss a proceeding on default of a party.

15    In exercising the discretion to dismiss proceedings, it is appropriate to have regard to the history of an appellant’s non-compliance and assess whether it is indicative of an inability or unwillingness to cooperate with the Court and the other party in having the appeal ready for hearing within an acceptable period.

16    The equivalent power under the former rules was found in O 10 r 7 of the Federal Court Rules 1967 (Cth). In Lenijamar Pty Ltd v AGC (Advances) Ltd [1990] FCA 745; 27 FCR 388 at 396, Wilcox and Gummow JJ observed that:

The discretion conferred by O 10, r 7 is unconfined, except for the condition of non-compliance with a direction. As it is impossible to foresee all of the circumstances under which the rule might be sought to be used, it is undesirable to make any exhaustive statement of the circumstances under which the power granted by the rule will appropriately be exercised. We will not attempt to do so. But two situations are obvious candidates for the exercise of the power: cases in which the history of non-compliance by an applicant is such as to indicate an inability or unwillingness to cooperate with the court and the other party or parties in having the matter ready for trial within an acceptable period and cases — whatever the applicant’s state of mind or resources — in which the non-compliance is continuing and occasioning unnecessary delay, expense or other prejudice to the respondent. Although the history of the matter will always be relevant, it is more likely to be decisive in the first of these two situations. Even though the most recent non-compliance may be minor, the cumulative effect of an applicant’s defaults may be such as to satisfy the judge that the applicant is either subjectively unwilling to cooperate or, for some reason, is unable to do so. Such a conclusion would not readily be reached; but, where it was, fairness to the respondent would normally require the summary dismissal of the proceeding.

17    These observations are apposite in the context of the present Rules as well: see Winn v Yeo as former trustee of the estate of Goodwin (a bankrupt) [2020] FCA 552 at [44] (O'Callaghan J).

18    The power to dismiss an appeal for want of prosecution “must not be lightly exercised” and “each case depends on its own circumstances”: see Van Reesema v Giameos (1979) 27 ALR 525 at 530 and 531 (Bowen CJ, Fisher and Lockhart JJ).

19    The interests that must be balanced in exercising this power are relevantly summarised by Stewart J in Nandutu v Chapman (No 2) [2021] FCA 45 at [22]-[23]:

22     On the authorities, I accept that dismissal of an appeal for want of prosecution is a drastic remedy that should be sparingly resorted to, that a court should not lightly deprive a litigant of their right of appeal, and that each case turns on its own facts and circumstances.  It is also the case that the respondent to an appeal has a key interest in being able to enjoy the fruits of the judgment that is appealed from and to bring the appeal to a reasonably quick and efficient conclusion.  These divergences in interests must be balanced. 

23     However, there are also other interests that must be brought into consideration. These include the overarching purpose of the civil practice and procedure of the Court which is to facilitate the just resolution of disputes “as quickly, inexpensively and efficiently as possible”: s 37M(1) of the Act. Parties to a civil proceeding, including an appeal, must conduct the proceeding in a way that is consistent with the overarching purpose: s 37N(1) of the Act. These provisions, and the jurisprudence of the Court, recognise the broader public interest and the interest of other litigants in other cases in having proceedings brought to a just and efficient conclusion: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 at [5] and [30] per French CJ, [93]-[98] per Gummow, Hayne, Crennan, Kiefel and Bell JJ.

BACKGROUND

20    The act of bankruptcy which formed the basis of the sequestration order was Mr Murabito’s failure to comply with a bankruptcy notice in respect of payment of a judgment debt issued on the application of Westview against Mr Murabito on 10 March 2021.

21    A sequestration order was made by a Registrar on 7 April 2022.

22    Mr Murabito applied to the Federal Circuit and Family Court for review of the sequestration order. The application was heard on 14 and 28 June 2022 and 31 October 2022. The application for review was dismissed on 2 November 2022.

23    The present appeal was filed on 30 November 2022.

PROCEDURAL HISTORY

24    Westview’s application to dismiss the appeal was heard on 31 October 2024. The matter was called outside the Court and commenced in the absence of Mr Murabito. Mr Murabito arrived around ten minutes later, accompanied by his wife. Mrs Murabito acted as his McKenzie friend (see generally Nepal v Minister for Immigration and Border Protection [2015] FCA 366 at [14]-[16] (Edelman J)). I considered it to be in the interests of justice to permit Mrs Murabito to act as a McKenzie friend to Mr Murabito.

25    The following is an abbreviated chronological narrative of the procedural history which lead to this application.

26    At the time of Mr Murabito filing the notice of appeal on 30 November 2022, the solicitor acting for Mr Murabito was Nazley Khan of Blackstone Legal.

27    At the first case management hearing on 16 March 2023, Mr Ardino, a solicitor of Di Lizio & Associates, appeared for Mr Murabito. Mrs Murabito was employed as Mr Ardino’s law clerk. It later transpired that a notice of appearance had not been filed by Mr Ardino. I made orders requiring Mr Murabito to file and serve any evidence on which he sought to rely for the interim relief sought in the notice of appeal. Mr Murabito did not provide any evidence within the time required, or at all.

28    On 1 May 2023, I referred Westview’s interlocutory application filed on 14 April 2023 in relation to security for costs to a Registrar for determination.

29    A notice of ceasing to act was filed by Blackstone Legal on 29 May 2023.

30    On 8 June 2023, the Registrar made orders that Mr Murabito file and serve any affidavit evidence and written submissions in support of the security for costs application and that failure to comply would result in Mr Murabito requiring leave to serve any further evidence or submissions in respect of the security for costs application. Mr Murabito did not file any evidence or submissions within the requisite time.

31    A Registrar of this Court granted the security application on 23 August 2023 in the sum of $20,000 and the security was paid on 21 September 2023.

32    On 28 September 2023, I entered orders timetabling submissions in relation to the substantive appeal. Mr Murabito did not comply with the timetable, which was extended by orders I made on 19 October 2023.

33    On 23 October 2023, Mr Murabito emailed the Court requesting a further extension of time. Mr Murabito asserted that he had not heard from Mr Ardino and that no submissions had been prepared by Mr Ardino. Westview objected to the requested extension.

34    On 25 October 2023, I ordered that Mr Murabito provide an affidavit explaining his delay in complying with the timetabling orders, which had been extended as outlined above. I also ordered that Mr Ardino attend the next case management hearing.

35    On 27 October 2023, the case management hearing was called on and Mr Ardino was not present. The case management hearing commenced with Mr Murabito appearing in person. Mr Murabito addressed on irrelevant material and was visibly and increasingly agitated in addressing the Court. Mr Ardino appeared some time later. He acknowledged that he had not filed a notice of appearing. He acknowledged that despite having not attended to filing a notice of appearance, he appeared at the previous case management hearing and had been involved in the earlier interparty correspondence on behalf of Mr Murabito. In view of the fact that Mr Ardino had appeared on two occasions, but not on others, purporting to act on instructions from Mr Murabito, I required Mr Ardino to give an undertaking to the Court that a notice of acting would be filed immediately following the adjournment of the case management hearing. That was not done. A notice of acting was filed on 31 October 2023 nominating Mario Di Lizio, principal of Di Lizio & Associates, as Mr Murabito’s solicitor.

36    The failure of Mr Ardino to attend to filing a notice of acting was not a mere technical breach of the procedural requirements ⸻ it was material in that it was opaque as to whether Mr Ardino was authorised to appear and make submissions on Mr Murabito’s account. Although it appeared, based on my observation of the interaction between Mr Murabito and Mr Ardino in Court, that Mr Ardino was so authorised, at times Mr Murabito sought to address the Court directly when Mr Ardino was appearing for him. For this reason, I formed the view that it was necessary to confirm the position by requiring Mr Ardino as an officer of the Court to cause a notice of acting to be filed.

37    At the case management hearing on 27 October 2023, I also made orders providing for a further extension of the timetable, with the following notation:

The is the second occasion on which the appellant has been granted an extension of time for the filing and service of his submissions. The respondents have indicated that if the appellant does not file and serve his submissions in accordance with the below orders, they may apply for this proceeding to be dismissed.

38    Mr Murabito did not comply with the directions made on 27 October 2023 ⸻ he did not file and serve his submissions within the time prescribed by the further extension.

39    As a result of Mr Murabito’s repeated defaults in compliance with orders, I made a guillotine order on 13 November 2023. Mr Murabito was required to file his submissions by 24 November 2023 otherwise the proceeding would be dismissed.

40    On 24 November 2023, Mr Murabito filed his appeal submissions. The submissions were signed by Mr Golledge SC. In his submissions, Mr Murabito indicated that several appeal grounds were not maintained and leave would be sought to file an amended notice of appeal. A draft amended notice of appeal was not attached to the submissions, notwithstanding that the submissions addressed each of the proposed new grounds of appeal.

41    There ensued what turned out to be a long and fruitless quest to determine what was the document said to be the proposed amended notice of appeal. A document styled as a proposed form of amended notice to appeal signed by Mr Ardino, which was undated, was provided to the Court and the respondents by email on 8 December 2023. The proposed form of amended notice of appeal introduced three additional grounds and was not supported by an application for leave to amend or an affidavit in support. These supporting documents were not filed, nor was leave obtained to file the proposed amended notice of appeal.

42    On 8 February 2024, Mr Murabito appeared in person at a case management hearing. Mr Murabito said that Mr Ardino was still his solicitor but was unable to attend as he was gravely ill. Mr Murabito said that he was prepared to make submissions himself and would consider retaining alternative legal representation because he believed Mr Ardino’s illness to be “very dire”. Mr Murabito then tendered a medical letter dated 6 September 2022 outlining his own medical history, a hospital discharge summary dated December 2022 in respect of an admission date in December 2022 and a three-page generic patient information sheet dated March 2023 titled “Mild traumatic brain injury (concussion)”. Mr Murabito’s submissions were not directed to these materials. After seeking to move back the date for compliance with certain procedural steps proposed by Westview, Mr Murabito’s submissions devolved to making inappropriate and serious allegations about inter alia the legal representatives of Westview. Mr Murabito was highly agitated but regained his composure to some extent. When Mr Murabito calmed down, I told Mr Murabito that many of the things that he had said were inappropriate to have been ventilated in the way that he did and in the way that he expressed himself in the face of the Court, but that I would not at that stage take it any further. I emphasised to Mr Murabito that the case management hearing was directed to making procedural orders to bring his appeal forward for determination. I made procedural directions which accommodated the extension sought by Mr Murabito and relevantly for present purposes required that Mr Murabito file and serve any application for leave to amend his notice of appeal by 29 February 2024. An application for leave to amend was not filed or served.

43    On 5 March 2024, Mr Ardino appeared at a case management hearing. Westview also appeared and mentioned the appearance of counsel for the Trustee. Mr Ardino sought to tender additional medical records and a new form of amended notice to appeal signed by Mr Ardino on 5 March 2024. The form of proposed amended notice of appeal provided significantly differed from an earlier version of the proposed amended notice of appeal that Westview had been given at some stage. Mr Ardino explained that the cause for delay in preparing the amended notice of appeal was because of a delay in receiving instructions. The time for compliance for Mr Murabito to file his application for leave to amend the notice of appeal was extended to 6 March 2024 and I directed Mr Murabito to file and serve the affidavit made by Mr Ardino dated 5 March 2024.

44    On 7 March 2024, Mr Murabito provided to the Court and Westview a proposed amended notice of appeal and lodged his interlocutory application and affidavit for filing.

45    On 11 April 2024, the appeal was listed for case management hearing. Counsel for Westview appeared and noted that counsel for the Trustee did not wish to play an active role in the hearing. Mr Ardino appeared on behalf of Mr Murabito. The live issues at the case management hearing included Mr Murabito’s application for leave to amend and also Westview’s application for additional security for costs. Westview raised concerns as to which version of the proposed amended notice of appeal was the final iteration on which Mr Murabito sought to rely.

46    The security for costs application was resolved by consent during an adjournment. Mr Murabito agreed to provide additional security in the sum of $10,000 for Westview’s estimated costs by 26 April 2024. In the event of default it was agreed that the appeal would be stayed until such time as Mr Murabito paid the additional security. Finally, as a backstop, the parties agreed to an order that if Mr Murabito failed to provide the additional security by 2 May 2024, the appeal would be dismissed pursuant to r 1.32 of the Rules and s 25(2B)(bb)(i) of the FCA Act.

47    The issue of whether the amendment application could be determined on the papers was not resolved, however the parties agreed to seek instructions and provide a joint communication to the Court by 15 April 2024. Mr Ardino sought leave to make an application for a further variation to the existing timetable in order to file unspecified further material in support of the amendment application. In the absence of the application being formulated, I did not grant leave at large. I made orders accordingly, including a notation that:

By a joint email communication to the Court, the parties are by 4pm, 15 April 2024, to:

i.    provide agreed short minutes of order in respect of progressing the appellant's interlocutory application dated 6 March 2024 seeking leave to amend the notice of appeal;

ii.    indicate whether the parties consent to the application being determined on the papers; and

iii.     identify the materials filed with the Court upon which each party relies for the application.

48    Mr Murabito did not comply with the directions made on 11 April 2024.

49    On 16 April 2024, I made orders relevantly that by 4pm, 10 May 2024 the parties notify the Court by joint email whether they consent to the amendment application being determined on the papers, or to be heard on a date to be fixed by the Court. The orders were expressed to take effect subject to the regime put in place in relation to the provision of additional security. Westview consented to the application being determined on the papers, whereas Mr Murabito did not.

50    Mr Murabito did not provide the additional security within the time required by the orders made on 11 April 2024 as extended by the orders made on 16 April 2024. This resulted in the appeal being stayed for a short period, until Mr Murabito provided the additional security on 20 May 2024.

51    On 1 May 2024, Mr Murabito emailed the Court requesting an extension of time until 8 May 2024 to identify the materials he sought to rely on for his amendment application. This extension was granted. Mr Murabito did not provide a list of materials by this time.

52    On 9 May 2024, Mr Murabito provided a list of documents by email. That list appeared to be a list of every document filed in this proceeding and before the primary judge in the Federal Circuit and Family Court.

53    On 20 May 2024, I made orders, relevantly, that by 27 May 2024, Mr Murabito by email to the Court, copied to all parties in the proceeding identify the materials filed with the Court upon which he relies for the application. I listed the amendment application for hearing on 20 June 2024.

54    On 20 June 2024, I heard the amendment application. Mr Ardino did not appear at the hearing. Mr Murabito attended in person. He made an oral application for an adjournment of his amendment application. Mr Murabito read an affidavit of his own dated 19 June 2024. He sought a suppression order in respect of the documents he wished to tender on the application. I made an interim suppression order to enable Mr Murabito to address and identify why a suppression order was necessary. Ultimately, I was not persuaded that it was appropriate to continue the interim suppression orders.

55    In his affidavit, Mr Murabito gave a description of a medical episode he says he experienced on 17 May 2024 which resulted in an ambulance taking him to the emergency department of Concord Hospital, from which he was discharged later that day. Mr Murabito also tendered an incomplete hospital discharge summary dated 17 May 2024 (two of four pages). It was admitted for the purposes of Mr Murabito’s adjournment application. The discharge summary included a conclusion expressed as an impression that Mr Murabito had experienced a “syncopal event, sinus bradycardia, no suggestion of a seizure”. The recommendation in respect of cardiology treatment was that he was suitable for outpatient follow up.

56    In his affidavit, Mr Murabito also made series of allegations about hacking and cyber interference with his computer and email accounts, which he said had prevented him from accessing his computer, emails and communicating with “personnel” assisting him in this matter. He said that his children’s computers and mobile phones had been hacked. Further, that his family’s bank accounts had been breached. Mr Murabito said he spoke with “Australian Police” in charge of the matter but did not identify any police officer by name. He did not adduce any independent evidence to support the allegations he made about cyber interference. From the bar table, Mr Murabito again made sweeping allegations of misconduct against Westview and its legal representatives.

57    In opposing the adjournment application, Westview tendered an email, which had been sent an hour before the hearing from Mr Ardino to the Registry and others, in which Mr Ardino said that his instructions to act in this matter had been suspended pending further advice from Mr Murabito. Mr Murabito later confirmed after some obfuscation that he had instructed Mr Ardino not to attend the amendment hearing, but that he wanted Mr Ardino to continue to act for him in the proceeding.

58    I refused Mr Murabito’s adjournment application. I then endeavoured to confirm whether the proposed amended notice of appeal signed by Mr Ardino on 5 March 2024 was the document in respect of which Mr Murabito was seeking leave. I provided a copy to Mr Murabito to review. He gave an answer that was difficult to follow but ultimately said that he could not answer without the benefit of advice. Mr Murabito acknowledged that he had told his solicitor not to attend.

59    After making brief oral submissions, Mr Murabito threatened to decline to participate any further in the hearing of his interlocutory application and subsequently left the courtroom.

60    I dismissed the amendment application there being no proposed amended notice of appeal being pressed by Mr Murabito before the Court and, having regard to the procedural history, I was satisfied that Mr Murabito had had ample opportunity to pursue the application.

61    I made orders that the appeal be referred to a Registrar to conduct a conference to settle the appeal papers with a view to the appointment of a hearing date for the appeal.

62    Between 5 July 2024 and 19 September 2024, the Registry and support staff corresponded with Mr Murabito, directly and through his legal representative, Mr Ardino, for the purpose of making arrangements for the provision of draft indexes to an appeal book and arranging a conference, including a telephone call prior to the conference. The Registry received no response from Mr Murabito to any of their communications. As at 11 July 2024, Mr Ardino was still actively representing Mr Murabito and consented to a proposed timetable for the preparation of the appeal book before the Registrar.

63    The conference listed for 11 September 2024 was vacated and re-listed for 25 September 2024.

64    On 19 September 2024, Mr Di Lizio filed a notice of ceasing to act for Mr Murabito.

65    On 25 September 2024, Westview’s legal representatives attended a case conference hearing before Registrar Lee for the purpose of settling an appeal book index for this appeal. Mr Murabito did not attend the conference, nor did any legal or other representative of Mr Murabito.

66    On 25 September 2024, the Registrar made orders noting that Mr Murabito had not appeared and ordered that the matter be listed before me and directed, at Westview's request, Westview to file and serve any interlocutory application for the dismissal of the appeal within seven days.

67    The interlocutory application for dismissal was filed with the Registry on 2 October 2024, Westview emailed a copy of the interlocutory application and supporting affidavit of Ms Hall to Mr Murabito on 2 October 2024.

68    On 17 October 2024, the Registry confirmed that the interlocutory application had been accepted for filing and was listed for hearing on 31 October 2024.

69    On 30 October 2024, Westview emailed a sealed copy of the interlocutory application and supporting affidavit of Ms Hall to Mr Murabito. On 31 October 2024, Mr Murabito emailed Registry and Westview shortly before the commencement of the hearing stating he had not been properly served, had sought legal advice and requested an adjournment. Mr Murabito arrived at the hearing late, but as mentioned above, appeared to oppose the application with the assistance of his wife.

CONSIDERATION

70    Dismissal of an appeal for want of prosecution is a remedy that by its nature should be used sparingly. The Court is faced with balancing whether to deprive a litigant of their right of appeal against the interests of the respondent to an appeal in being able to enjoy the fruits of the judgment. The Court must also be conscious that the respondent also has an interest in bringing the appeal to a reasonably quick and efficient conclusion. More broadly, that interest is shared by other litigants in the Court and the public in efficiently using Court resources and promoting the objective of facilitating the just resolution of disputes “as quickly, inexpensively and efficiently as possible” in accordance with s 37M(1) of the FCA Act. Each case will turn on its own facts and circumstances.

71    Having regard to the procedural history, which is outlined fulsomely above, I am satisfied that in the facts and circumstances of this appeal, it is appropriate to grant the relief sought by Westview and to dismiss the appeal under ss 25(2B)(ba) and 25(2B)(bb) of the FCA Act. My reasons are as follows.

72    Mr Murabito first indicated through his counsel on 24 November 2023 that he intended to apply for leave to amend his notice of appeal and that that would be done within seven days. Timetabling orders which required Mr Murabito to serve his proposed amended notice of appeal were put in place, and repeatedly extended, and repeatedly breached. Although a proposed amended notice of appeal was circulated in March 2024, it was entirely unclear whether Mr Murabito intended to proceed on that version, which differed in material respects from the form of the proposed amended notice of appeal that had been foreshadowed in his counsel’s submissions in November 2023. When the amendment application was ultimately listed for hearing, Mr Murabito instructed his solicitor not to attend the hearing and declined to identify the proposed amended notice of appeal. Since his amendment application was dismissed, he has not engaged with the steps taken by the Court to assist him in bringing the appeal forward for determination. His solicitor filed a notice of ceasing to act. There is presently no solicitor on the record for Mr Murabito and he has not attended before the Registrar for the purpose of settling the appeal books.

73    The procedural history which I have addressed in detail above demonstrates that:

(1)    The elapse of time since the notice of appeal was filed in November 2022 has been substantial and there has been little in the way of material progress towards a hearing date;

(2)    Mr Murabito has, on multiple occasions, failed to comply with Court orders;

(3)    His non-compliance with Court orders has been productive of:

(a)    delay in the efficient progress of the proceeding;

(b)    wasted Court time and the incurring of wasted costs arising from unnecessary or vacated case management hearings;

(c)    wasted costs arising from unnecessary or vacated conferences before a Registrar; and

(d)    the proceedings being temporarily stayed in the period when Mr Murabito was late in providing additional security, to which he had agreed.

74    Mr Murabito did not engage with Westview in relation to the present application until shortly before the hearing of the application. By email on 30 October 2024, Mr Murabito asserted that he did not believe he had been served with the application to dismiss the appeal and evidence filed by the respondents. He requested an adjournment until he was able to engage legal representation for the hearing of this application.

75    It became clear during Mr Murabito’s submissions that there appeared to be a misunderstanding as to the versions of the affidavit of Ms Hall provided to Mr Murabito. Mr Murabito understood the sealed copy of the affidavit provided by Westview on 30 October 2024 to be different and additional to the affidavit provided by Westview on 2 October 2024. I do not accept that there was a reasonable basis for this understanding. The two versions of the affidavit were clearly substantially the same, one being unsealed and the other being sealed. It was foreshadowed in earlier correspondence from Westview’s solicitors to Mr Murabito that sealed copies of the relevant documents would be provided once filed. It is clear from the correspondence sent from Westview’s solicitors to Mr Murabito on 30 October 2024 that the documents were sealed copies of the documents dated 2 October 2024 and that there was no substantive change in the contents of the documents. As Mr Murabito has not taken steps to record an address for service, Westview sent correspondence to the email address actively used by Mr Murabito throughout the period up to and including the day of the hearing of the application. It is clear that Mr Murabito received the correspondence emailed to him.

76    As mentioned, Mr Murabito arrived late to the hearing and was not represented but was assisted by Mrs Murabito in her capacity as a McKenzie friend.

77    Mr Murabito said that he was not aware of the listing before the Registrar to settle the appeal book and did not know that his legal representatives did not respond. Mr Di Lizio was appointed to act as Mr Murabito’s legal representative from 31 October 2023 until Mr Di Lizio filed a notice of ceasing to act on 19 September 2024. When Mr Murabito was asked about his failure to attend the conference on 25 September 2024, Mr Murabito accepted that he did not attend because he believed his solicitor had been instructed to include everything on the Court file in the appeal book. The conference took place after Mr Murabito’s solicitors filed a notice of ceasing to act. Mr Murabito knew that his solicitors had filed a notice of ceasing to act. I do not accept that the excuse proffered by Mr Murabito relieved him from the obligation to participate in the conference before the Registrar for the purpose of settling the appeal books.

78    Mr Murabito relied on correspondence in which he questioned whether Mr Ardino was still acting for him. On 1 October 2024, Mr Murabito sought confirmation from Mr Di Lizio that Mr Ardino continued to act for him in this matter. On 2 October 2024, Mr Di Lizio informed Mr Murabito that Mr Ardino was no longer employed at Di Lizio & Associates and was no longer acting for Mr Murabito. It appears that Mr Ardino left Di Lizio & Associates in around May 2024 and was subsequently employed by Kazi & Associates. Mr Murabito submitted that he had been providing instructions and payments to Mr Ardino since at least May 2024. The only evidence that he produced to support this assertion was a series of text messages exchanged between Mr Murabito, Mrs Murabito and Mr Ardino from 24 September 2024 to 2 October 2024. He says that this formed the basis of his understanding that he was still represented by Mr Ardino until at least 2 October 2024. The texts from Mr Ardino are addressed to “Steven & Lilly” (being Mr and Mrs Murabito). In the text messages Mr Ardino refers to requests for instructions, including in relation to being put in funds to brief counsel for an opinion. The texts demonstrate an awareness that Mr Di Lizio had filed a notice of ceasing to act on 19 September 2024. In the chain of text messages, Mr Ardino informs Mr and Mrs Murabito that he cannot keep ignoring the Court, that to do so is embarrassing and discourteous, but that he would file a “fresh” notice of acting if put in funds to obtain an opinion from counsel. Mr Ardino appears not to have been aware that Mr Di Lizio had ceased to act until he was told of that fact by Mrs Murabito. Mr Murabito says that he paid fees into Mr Golledge SC’s account, Mr Ardino’s personal account and Di Lizio & Associates’ account. He did not produce any evidence to support his assertions about these matters. There is no reference in the chain of text messages to funds being paid to the legal representatives.

79    Against this background, Mr Murabito submits that he did not have sufficient time to obtain legal advice in respect of this application because he received the sealed versions of the documents on 30 October 2024, the day before the hearing. I do not accept that. Mr Murabito was in receipt of the relevant documents from 2 October 2024 and was aware from at least that time that he did not have a solicitor on the record.

80    Mr Murabito has a history of non-compliance with directions of the Court. Mr Murabito has persistently failed to comply with orders directing him to file and serve any application for leave to amend the notice of appeal by 29 February 2024 (orders made on 8 February 2024), which was later extended to 6 March 2024 (orders made on 5 March 2024). Similarly, Mr Murabito has not complied with orders referring the appeal to a Registrar to conduct a conference to settle the appeal book (orders made on 20 June 2024). The conference was initially scheduled for 11 September 2024 and was relisted for 25 September 2024. In advance of the conference, the Registrar sent several communications to the parties proposing a timetable to submit draft indexes. Mr Murabito was contacted several times by the Registrar and Registry staff by both email and telephone in advance of the conference, including requests for mutually available dates for the parties to exchange draft appeal book indexes and to conduct the case conference. The Registry did not receive any response from Mr Murabito. Mr Murabito did not appear at the conference. Accordingly, the appeal book index was not settled. Mr Murabito’s failure to file and serve a draft index of the appeal book as required has exacerbated the existing delay in preparing this proceeding for hearing.

81    It is plain that Mr Murabito has not approached his appeal with due diligence. On 11 April 2024, the Court directed the parties to provide by 15 April 2024 a list of materials upon which they intended to rely for Mr Murabito’s application for leave to amend the ground of appeal. On 1 May 2024, Mr Murabito sought an extension of time until 8 May 2024, which was granted. Mr Murabito did not provide a response until 9 May 2024, in the form of an email sent by Mr Ardino on Mr Murabito’s behalf effectively listed the entire Court file for this proceeding and the Federal Circuit and Family Court proceedings SYG1905/2021 and SYG547/2021. The list contained 63 documents and included notices of address for service and notice of change of lawyer. Mr Murabito and his then solicitors did not engage meaningfully or cooperatively with Westview to comply with the requirement to prepare an appeal book.

82    Mr Murabito has had several opportunities to deal with the matters which required his attention or to bring the matter before the Court to explain the reasons for his delays or seek an appropriate variation of the orders. He has not done so.

83    Mr Murabito has had the benefit of several extensions of time to prepare his interlocutory amendment application and this appeal. The extended deadlines have repeatedly not been met. That is a consistent feature of the way in which Mr Murabito has conducted this appeal, both during periods when Mr Murabito was legally represented and when he was not.

84    In his evidence and submissions, Mr Murabito has often claimed to be suffering from medical condition(s) but he has not produced medical evidence to substantiate his claims. As mentioned, at times Mr Murabito was agitated and directed his frustration to Westview’s legal representatives and the Court. In the circumstances of this proceeding, I am not satisfied that Mr Murabito’s health claims justify or excuse the dilatory way in which the appeal has been conducted. In any event, I must balance Mr Murabito’s difficulty in instructing his solicitors and in progressing his appeal against the respondents’ interests, and against the interests of other litigants in the Court: see Wade v AMI Australia Holdings Pty Ltd [2010] FCAFC 120; 274 ALR 431 at [37]-[39] (Cowdroy J). Taking all of these matters into account, I am satisfied that the facts and circumstances of this proceeding warrant the Court dismissing the appeal under s 25(2B) of the FCA Act.

85    Finally, pursuant to r 1.34 of the Rules I will make an order dispensing with the requirement in relation to service of the interlocutory application dated 2 October 2024 pursuant to r 36.74(2) of the Rules. I am satisfied that Mr Murabito was provided with unsealed documents on 2 October 2024, and sealed documents on 30 October 2024. The substantive content of the sealed documents was the same as the unsealed documents that had been provided earlier. The documents were provided to both Mr Ardino and to Mr Murabito by email. Mr Murabito was copied on the emails by which the date for hearing was settled. In these circumstances having regard to the procedural history, I am satisfied that it is appropriate to dispense with strict compliance with the formal requirements in relation to service.

CONCLUSION

86    Taken as a whole, Mr Murabito’s conduct demonstrates an inability or unwillingness to cooperate with the Court and the respondents in readying his appeal for hearing within an acceptable period. Mr Murabito’s conduct has occasioned unnecessary delay and expense to the respondents, who have continued to engage with the Registry in an effort to finalise the appeal books and prepare for hearing. To dismiss Westview’s application would have the likely consequence of imposing further delay and further cost exposure on the respondents, and also likely result in a further drain the limited resources of the Court, to the detriment of other litigants in the Court. 

87    Having regard to the overarching purpose in ss 37M and 37N of the FCA Act, I am satisfied that it is appropriate to exercise my direction to dismiss the proceedings for want of prosecution and for failure to comply with directions of the Court. I am satisfied that Westview has made out both grounds and I will exercise my discretion accordingly. Costs of the present application will follow the event. Having regard to the reasons for dismissing the appeal, it is appropriate that Mr Murabito pay the respondents’ costs of the appeal.

Associate:

Dated:    5 December 2024