ABRUZZESE v David Jones Ltd (No.2)

[2003] FMCA 367

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ABRUZZESE v DAVID JONES LTD (No.2) [2003] FMCA 367

PRACTICE AND PROCEDURE – Dismissal of application following non‑compliance with court order – self-executing order dismissing the application in the event of non-compliance – whether the order was complied with – whether the self-executing order should be amended.

Federal Magistrates Court Rules 2001 (Cth)

Applicant: MARIA ABRUZZESE

Respondent: DAVID JONES LTD

File No: SZ437 of 2002

Delivered on: 4 August 2003

Delivered at: Sydney

Hearing date: 4 August 2003

Judgment of: Driver FM

REPRESENTATION

Counsel for the Applicant: Mr Overall

Solicitors for the Applicant: J P Capsanis & Co

Counsel for the Respondent: Mr Beaumont

Solicitors for the Respondent: Freehills

ORDERS

THE COURT DECLARES THAT:

1. The applicant has not complied with order 2 made on 23 July 2003, and that the application has been dismissed pursuant to order 3 made on that day.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ437 of 2002

MARIA ABRUZZESE

Applicant

And

DAVID JONES LTD

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This matter came before me today for directions in relation to a number of matters, the first of which was an application for summary dismissal of the principal application for non compliance with orders of the Court. Mr Beaumont, appearing for the respondent to the principal application, drew my attention to the fact that the Court made an order on 23 July 2003 that the applicant is to file and serve on the respondents no later than 4.00pm on Monday 28 July 2003 written submissions and an outline of authorities and, further, that if that order were not complied with, the principal application is dismissed by force of that order pursuant to rule 13.03(2)(b) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”).

2. Mr Beaumont submits to me that the order requiring filing and serving of written submissions has not been complied with and that I should therefore find that the application has been dismissed by force of order 3 made on 23 July 2003.

3. The background to this issue is that these proceedings have had a rather long and tortuous history.  The matter was originally listed for hearing on 18 and 19 November 2002, but that hearing date was vacated and the matter was relisted over three days on 7, 8 and 9 May 2003.  Those hearing dates were also vacated and the matter was listed for hearing for three days commencing tomorrow, 5 August 2003. 

4. The reasons for the previous adjournments were several, including the fact that the applicant has twice changed her solicitors and also that the proceedings were regarded as being more substantial in nature than was originally envisaged.  It was with that latter concern in mind that I required written submissions to be prepared.  Because written submissions had not been prepared in accordance with order 3 made by me on 30 April 2003, the respondent exercised liberty to apply for dismissal of the application pursuant to order 6 made by me on that date. 

5. That application was heard on 23 July 2003 and although I did not grant the application for summary dismissal, I made orders 2 and 3 on 23 July 2003 requiring the applicant's written submissions and list of authorities to be filed and served no later than 4.00pm on Monday, 28 July 2003, in default of which the application was to be dismissed by force of order 3 made on that day. 

6. A document headed “Submissions” on behalf of the applicant was filed and apparently served on 28 July 2003 together with a short list of authorities.  However, as has been pointed out by Mr Beaumont, that document while headed “Submissions” on behalf of the applicant, is effectively identical to points of claim filed on 11 September 2002.  The only difference is the addition of some particulars of loss and damage at the end of the document.  Therefore, while the document filed on 28 July 2003 does contain a list of authorities and is headed “Submissions” on behalf of the applicant, it is in fact simply an amended set of points of claim.

7. I find, therefore, that order 2 made by the court on 23 July 2003 has not been complied with.  That much was effectively conceded by Mr Overall who appeared today on behalf of the applicant.  However, Mr Overall submitted that I should vary the orders I made on 23 July 2003 in the interests of justice so that order 3 I made on that day would not apply.  The substance of Mr Overall's submissions is that a serious issue is raised by the proceedings that should be heard and the applicant should be given more time in order to prepare her case for hearing.

8. It is accepted that if more time is given the hearing dates allocated commencing on 5 August 2003 will need to be vacated.  This would be the third set of hearing dates which would be vacated.  I am not persuaded that I should grant the applicant further time as Mr Overall submits.  The applicant has been granted ample opportunity to prepare her case for hearing over many months.  To this point she has not been able to do so effectively and there have been a series of defaults of compliance with procedural orders made by the Court, culminating in the self executing order I made on 23 July 2003.  I will not vary that order, and the effect is that the application is dismissed by force of order 3 made on 23 July 2003. 

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  4 September 2003