Federal Court Rejects Application for Extension of Time

Federal Court of Australia

[NAME] v Australia and New Zealand Banking Group Limited [2022] FCA 791 File number(s): VID 656 of 2021

Judgment of: O'CALLAGHAN J

Date of judgment: 7 July 2022

Catchwords: PRACTICE AND PROCEDURE – application under r 1.39 of the Federal Court Rules 2011 (Cth) to extend a time fixed by order of the court – where court ordered that applicants file and serve a statement of claim by a specified time – where court made a self-executing order that in the event that applicants failed to comply with order to file and serve a statement of claim the proceeding be dismissed – where applicants failed to file and serve a statement of claim by time specified – application dismissed

Legislation: Federal Court Rules 2011 (Cth) r 1.39

Cases cited: [NAME] v Commonwealth of Australia [2012] FCA 1194

Division: General Division

Registry: Victoria

National Practice Area: Commercial and Corporations

Sub-area: Corporations and Corporate Insolvency

Number of paragraphs: 49

Date of last submission/s: 20 June 2022

Date of hearing: Determined on the papers

Counsel for the Applicants: [redacted]

Counsel for the First, [NAME]: [NAME]

Solicitor for the First, [NAME]: [NAME]

Counsel for the [NAME] Respondent: [redacted]

ORDERS VID 656 of 2021

BETWEEN: [NAME] First Applicant

[NAME] Applicant

AND: AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED (ACN [PHONE]) First Respondent

[NAME] Respondent

[NAME] (and another named in the Schedule) Third Respondent

order made by: O'CALLAGHAN J DATE OF ORDER: 7 JULY 2022

THE COURT ORDERS THAT:

1. The applicants' originating application dated 17 November 2021 be refused. 2. The proceeding be dismissed. 3. The applicants pay the respondents' costs of the proceeding, to be agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

O'CALLAGHAN J:

Introduction 1 This is an application under r 1.39 of the Federal Court Rules 2011 (Cth) for extension of time to comply with self-executing orders dated 27 August 2021 in proceeding no VID 253 of 2021 (the earlier proceeding), the effect of which was that the proceeding was dismissed after the applicants failed to file and serve a statement of claim. 2 At a case management hearing on 3 June 2022, I made orders that, unless otherwise ordered, the application would be determined on the papers following the filing of submissions. Having considered the submissions and the evidence, my view remained that it was appropriate to determine the matter on the papers. 3 Any reference to "the respondents" in these reasons is a reference to the first, [NAME]. The [NAME] respondent did not appear.

Background 4 The first applicant ([NAME]) and the [NAME] applicant ([NAME]) are married. 5 The applicants relied on three unsworn affidavits of [NAME] dated 6, 19 and 31 May 2022. The respondents relied on an affidavit of [NAME], a solicitor employed by [NAME], the legal representatives for the respondents, sworn 20 May 2022. 6 The applicants' evidence, and indeed all the documents that they filed in this proceeding, contained a large amount of irrelevant and incomprehensible material. I have extracted most of the correspondence and facts regarding the earlier proceeding below from [NAME]' affidavit. 7 [NAME] deposed that he was instructed as follows regarding the relationships between the parties: (1) the [NAME] respondent was formerly employed by the first respondent ([NAME]) as a small business banker; (2) the third respondent is currently employed by [NAME] in its External Dispute Resolution Team; (3) the [NAME] respondent previously worked for [NAME] in its Small Business Banking Collections Team; (4) [NAME] entered into a loan agreement with [NAME] on or about 19 July 2016 and dealt with the [NAME] respondent during that process; and (5) the loan between [NAME] and [NAME] was secured by a mortgage over a property that she owned at [ADDRESS], Ravehall, Victoria (the property). 8 By an originating application dated 17 November 2021, the applicants commenced this proceeding, seeking judicial review under r 31.01(1) of the Federal Court Rules, being the rule for bringing applications for review under the Administrative Decisions (Judicial Review) Act 1977 (Cth). The application did not identify any administrative decision to which that Act might apply. It was principally directed to criticisms of orders made by Davies J in the earlier proceeding. It is therefore necessary to set out some brief background to that proceeding. 9 The applicants commenced the earlier proceeding by originating application filed 12 May 2021. They sought a discharge of a mortgage over the property and, among others, the following orders: 7.1 That all fees, charges and interest be refunded to the [applicants.] 7.2 That the [applicants] be compensated for the [respondents'] beneficial use of the [applicants'] liquid cash held for 5 years by the [respondents] in the form of a title. 7.3 That the [applicants] be compensated for the stress caused from [NAME] agents and legal representatives making demands while being aware that it was not possible for the [NAME] applicant to meet those demands, when it was [NAME] that created the situation ab initio. 7.4 That this unethical conduct constitutes psychological torture. 10 At the first case management hearing on 4 June 2021, Davies J ordered that the applicants file and serve a statement of claim by 4pm on 16 July. The applicants did not do so. 11 A further case management hearing took place on 23 July. Her Honour ordered that the proceeding be listed for case management on 27 August and that the applicants be referred for legal assistance. That referral was made and [NAME] of counsel accepted the brief. 12 By email dated 25 August 2021, [NAME] wrote to Davies J's associate, copied to [NAME] and [NAME], in the following terms: I have had a less than productive telephone conversation with the first Applicant this evening. His approach suggests to me that he will not accept any advice I might give him or his partner. I have not spoken about the case with [[NAME] in relation to any rights she may have. I suspect the first applicant will not want me to appear for him on Friday [27 August.] As to the [NAME] applicant who has standing I don't know her attitude. I am in the court's hands[.] I can be available to assist the court on Friday if needed. 13 The next day, her Honour's associate wrote to [NAME], and [NAME], relevantly in the following terms: Can the applicants please: • Confirm they are aware of the hearing tomorrow morning • Indicate whether they are intending to appear • Indicate whether they will have [NAME] appear for them on a pro-bono basis • Provide a number for the Vietnamese interpreter to contact the [NAME] applicant tomorrow 14 [NAME] responded as follows: In accordance with the [Court's] suggestion, at 11.24 am this morning, I sought instructions from the Applicants as to whether or not they wanted me to appear for them tomorrow morning. At this time, I too have heard nothing from either Applicant. 15 Her Honour's associate emailed [NAME] and [NAME] later that day, confirming that she had spoken with both applicants and that they would be appearing in person at the case management hearing the next day. 16 The case management hearing took place on 27 August. As foreshadowed in the associate's email, the applicants appeared without legal representation. At that hearing, Davies J relevantly made the following orders:

1. The applicants file and serve a statement of claim by 4:00 pm on 10 September 2021.

2. In the event that the applicants fail to comply with Order 1 the proceeding be dismissed. 17 On 10 September, [NAME] emailed a copy of a document entitled "statement of claim" to the associate, copied to [NAME] and [NAME]. 18 Her Honour's associate responded about an hour later, in the following terms: This document must be electronically filed through the e-filing lodgement system. It appears you have eLodged several documents in the past. If there is any difficulty with this, please contact the Federal Court Registry and they will assist you. 19 Later that afternoon, [NAME] sent another email to the associate, attaching a document entitled "VID253_2021_STATEMENT_OF_CLAIM", again copied to [NAME] and [NAME]. 20 Her Honour's associate responded less than an hour later, relevantly as follows: You will need to make arrangements with the Registry to file this document as re-forwarding to me does not effect this purpose. It must be filed via the E-Lodgement portal. This will also be necessary for subsequent documents, therefore I recommend liaising with the Registry and they can guide you through the process. I unfortunately cannot assist with this and cannot file documents. 21 On 15 September, [NAME] of [NAME] emailed the associate, copying [NAME], referring to the self-executing orders of 27 August 2021 and noting that it did not appear that any document had been filed in the proceeding since 21 July. 22 Her Honour's associate responded on 20 September, asking [NAME] to outline his intentions and/or any explanation for the applicants' non-compliance. The applicants did not respond to that email. 23 On 22 September, [NAME] responded to the associate's 10 September email, copying [NAME] and attaching an image of the court's eLodgment platform which displayed the message: "Document(s) have been successfully lodged". 24 The associate responded to [NAME]'s email fifteen minutes later, relevantly as follows: I note that [the statement of claim] was sent via email but not filed within the requisite timeframe. [NAME] can you please indicate why the document was not filed in time and I will put the question to her Honour for determination as to whether the document can be accepted for filing. 25 The applicants did not respond to that email. 26 The associate sent the following email to [NAME] and [NAME] the next day, attaching the 27 August orders: The attached orders are self-executing and operation of their own force. The applicants have failed to comply with order one by filing and serving a statement of claim by 4.00pm on 10 September 2021 and the proceedings are dismissed.

The application for extension of time 27 The applicants commenced this proceeding by filing an originating application, in which they sought judicial review under r 31.01(1), and a statement of claim. Their principal complaint concerned the orders of Davies J dismissing the earlier proceeding, including that the orders were ultra vires and that the applicants were denied procedural fairness. Those orders are not subject to judicial review under r 31.01(1). At the case management hearing before me on 8 April 2022, [NAME] agreed that the applicants' originating application and statement of claim instead be treated as an application under r 1.39 for an extension of time to comply with the self-executing orders made by Davies J. 28 At that hearing, I also ordered that the respondents file and serve any affidavit on which they wished to rely, and a short outline of submissions, which they duly did on 20 May. 29 The next case management hearing took place on 3 June. I ordered that the applicants file and serve an outline of submissions in response, that the respondents file a reply if they wished to, and that unless otherwise ordered, I would determine the matter on the papers. 30 The applicants filed their submissions on 20 June. 31 By email to my associate dated 30 June 2022, which was copied to the applicants, the respondents confirmed that they did not propose to file any reply.

Consideration 32 Rule 1.39 confers power upon the court to extend the time fixed by either the Federal Court Rules or a court order. It is a broad discretion. There is no exhaustive list of factors relevant to an exercise of that power. They may include the following: (a) the requirements under ss 37N and 37M of the Federal Court of Australia Act 1976 (Cth) to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible; (b) the nature of the order which was not complied with; (c) the duration of the extension sought; (d) the history of the proceeding; (e) reasons for non-compliance with the order; (f) the respective merits of the claim or defence; (g) any prejudice that may be suffered by the party seeking the extension if it is not granted; and (h) any prejudice to the party opposing the extension if it is granted, and whether such prejudice may be adequately addressed by (for example) an order for costs. [NAME] v Commonwealth of Australia [2012] FCA 1194 at [11] (Flick J) and the cases cited therein. 33 I will turn first to the merits of the applicants' claim. 34 The originating application filed in the earlier proceeding claimed that the respondents had, among other things, breached various provisions of Schedule 2 to the Competition and Consumer Act 2010 (Cth) and Schedule 1 to the National Consumer Credit Protection Act 2009 (Cth). The application stated: 4 An agreement that requires the oblige to break the law is void ab initio. 4.1 At the time that the respondent and it's agents created the obligation the [NAME] applicant was unable to meet the obligation, through no fault of the [NAME]. 4.2 That the respondents and it's agents did not exercise due diligence and conduct the proper checks prior to creating the obligation. 4.3 [NAME] issued default letters first by [NAME] then by [NAME] once and 2 years later a [NAME] time by [NAME] while they were aware that the [NAME] applicant couldn't possibly be expected to break the law to meet the obligation and their demands. 4.4 [NAME] ignored our request of preferred method to contact us and continued to harass me, demanding to speak to the [NAME] applicant and would not accept that the [NAME] respondent has limited English. 4.5 The [NAME] respondent refused to accept that I have been granted power of attorney by the [NAME] applicant, even though the power of attorney documents had been sent to [NAME] and an authority to act had been signed by the [NAME] applicant and sent to [NAME]. 4.6 That an order to protect [NAME] myself and their property is required due to [NAME] and their legal representatives belligerence and blatant disregard of the law that is evident. 5 Fraudulent documents, inconsistent dates, misrepresentation and deception 5.1 The [NAME] applicant signed the mortgage document 20 June 2016, the business credit facility application form has 3 different dates on different pages, on [NAME] system screen shots the facility application is dated 27 July 2016.(Annexure"ST8") 5.2 The [NAME] respondent signed the mortgage document as a witness.(Annexure"ST2") 5.3 The [NAME] lenders notes provided by the Australian Financial Complaints Authority contain two (2) application numbers.(Annexure"ST9") 5.4 That the application form has different dates on different pages. 5.5 [NAME] stated that the application they have on file does not contain an ABN 5.6 The application provided to [NAME] by [NAME] clearly does have an ABN. 5.7 The [NAME] respondent completed the application for the [NAME] applicant and the application does not reflect the answers provided by the [NAME] applicant.(Annexure"ST2") 5.8 It is evident that the application has been altered but there are no initials present 5.9 The [NAME] respondent wrote the words "[COMPANY]: in the business description of the application.(Annexure"ST2") 5.10 That [NAME] agents have no consideration for the situation that they have put [NAME] in. 5.11 That [NAME] agents have no consideration for the for the time lost by [NAME] 5.12 That [NAME] agents have no consideration for the for the affect on [NAME] personal lives. 5.13 That [NAME] agents have sent [NAME] into financial ruin. 6 NATIONAL CONSUMER CREDIT PROTECTION ACT [POSTCODE] - SCHEDULE l • 78 Court may review unconscionable interest and other charges (1 - 4) • Division 4–Prohibition on entering unsuitable consumer leases: 156 6.1 [NAME] coerced [NAME] into signing a lease to themselves. 6.2 That [NAME] agents sent [NAME] an approval in principle 6.3 [NAME] had committed a $42,500 deposit the [NAME] respondent stated that the [NAME] income was not enough. 6.4 [NAME] signed the lease under duress. 6.5 That the alleged mortgage documents were not properly executed and are unenforceable and should be struck out and mortgage discharged. (Errors in original) 35 It is not necessary to set out the statement of claim which the applicants emailed to Davies J's associate, or the content of the originating application and statement of claim filed in this proceeding. They are of a similar nature to the extract of the originating application set out above. They do no more than narrate the applicants' complaints regarding their dealings with the respondents and the progress of the proceedings, and advance various submissions, none of which has any merit. As the respondents submitted, the claim "appears to represent little more than a general dissatisfaction that the Applicants appear to have with the First Respondent and its employees and one that does not amount to any recognised cause of action". 36 Further, it is not clear what relationship exists between the applicants and the respondents. As the respondents submitted: … The only legal relationship that appears to exist between any of the parties is the loan between the First Respondent and [NAME] Applicant. There is however, nothing contained within the affidavits sworn in support of the originating application in the earlier proceedings or statement of claim filed with the current proceedings that would serve to impugn this loan and give any relief to the [NAME] Applicant. The inclusion of the [NAME] as parties to the proceedings makes less sense still. [Their] only involvement appears to be limited to some events that took place in the course of the Applicants' dispute with the First Respondent, which presumably is the same dispute they are seeking to prosecute in the present proceedings. Moreover, the Applicants do not appear to seek any relief against them. In addition, there does not appear to be any basis for the First Applicant being a party to this proceeding. 37 From what I can understand of the parties' submissions and evidence, the [NAME] are [NAME] employees who interacted with the applicants in the course of their dealings with it. It is not clear, and the applicants do not explain, how they can be liable for or are connected with any of the various claims set out in the applicants' pleadings. 38 The lack of merit in the applicants' claim is a strong factor weighing against the exercise of my discretion under r 1.39 to extend the time within which the applicants were to file their statement of claim. 39 I have also considered the other matters identified above which are relevant to the exercise of the discretion conferred by the rule. Taking each of them in turn: (a) The requirement that the court and the parties facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible weighs against granting an extension. If the extension is granted, the proceeding will continue when it has no prospects of success, which will self-evidently involve wasted time and costs for the respondents, the applicants themselves, and the court. (b) The nature of the order with which the applicants did not comply was, as the respondents submitted, one of the most "serious kind" in that failure to abide by the order resulted in their claim being dismissed. The order was also made after the applicants had already once failed to comply with earlier orders requiring the same action, namely, the filing of a statement of claim. (c) The respondents submitted that the duration of the extension sought was more than two months, being the time between when the applicants were meant to file their statement of claim in the earlier proceeding (10 September 2021) and when they filed it in this proceeding (17 November 2021). In my view, given that the applicants attempted to file the statement of claim on 22 September, albeit unsuccessfully because the document was rejected as being out of time, the duration of the extension sought is the period between 10 and 22 September. This is not a particularly lengthy period of time, which weighs in favour of granting the extension. (d) Relevant facts from the history of the proceeding include: that the applicants had previously failed to file a statement of claim after being ordered to do so; their failure to provide any explanation as to why the statement of claim was not filed by 10 September 2021; and that they were offered, and refused, legal representation. These all weigh against the grant of an extension. (e) The applicants have not provided any explanation, either in response to the requests from Davies J's associate or in the course of this proceeding, as to why they failed to file the statement of claim on time. Instead, their application, evidence and submissions in this proceeding were directed to criticising Davies J for not accepting the document as filed when it had been emailed to her associate, and contesting the validity of the self-executing orders. (f) There will be substantial prejudice to the applicants if their application for an extension of time does not succeed, as their right to any claim for relief will be extinguished entirely. However, and as the respondents submitted, this consideration holds less weight where such a claim is wholly without merit. (g) [NAME] deposed that, since the earlier proceeding was dismissed, [NAME] has commenced proceedings for, among other things, possession of the property. If the extension is granted, there will be some prejudice to [NAME] because there will likely be delay in it being able to enforce its rights under the mortgage and the loan. All four respondents will also continue to be involved in these proceedings, which will involve time and cost. While this consideration is less important where the respondents can, for example, be awarded monetary compensation for costs, it is particularly undesirable for respondents to continue to be involved in proceedings where the underlying claims have no merit. 40 The applicants' written submissions were also in the nature of general complaints regarding the alleged conduct of the respondents, the respondents' legal representatives, [NAME] and the court. 41 First, as to the merits of the claim, the applicants submitted: "I suggest that [NAME] lawyer read the submissions that they will need to respond to before making any premature claims with regards to merit". For the reasons I have given, submissions regarding the merit of the applicants' claim are not "premature" in considering whether to exercise the discretion under r 1.39 in these circumstances. They are highly relevant, particularly in this case where the underlying claim entirely lacks merit. 42 Secondly, the applicants submitted that an order summarily dismissing a proceeding is an "extreme measure". While that is true, as I say, this factor bears less weight where the underlying claim is without merit. 43 Thirdly, the applicants submitted that the only prejudice would be to the applicants. However, the applicants did not provide any submissions as to why this was so, and as I say, there will clearly be prejudice to the respondents if the extension if granted. 44 The applicants also submitted that they were not required to file a statement of claim at all, but did so "to appease the [respondents'] lawyer". That is self-evidently misconceived – the applicants were required to file a statement of claim because the court had made orders that they do so. 45 The submissions otherwise included long passages of irrelevant material, including references to legislation and authorities which have no possible relevance. Large parts of the submissions also appeared to have been copied directly from other sources. As with the originating application and statement of claim, they disclosed nothing more than a general dissatisfaction with the applicants' dealings with [NAME]. 46 I should add that the reasons that the applicants gave for refusing [NAME]'s assistance after he had accepted the brief on a pro bono basis were set out in their originating application in this proceeding, as follows: [Justice Davies] attempted to give [NAME] legal advice when instructing them to seek legal advice, [NAME] received an unsolicited email from a legal practitioner claiming that he had been appointed to represent [NAME], the first applicant received a phone call from the legal practitioner at 8.30 pm 2 days prior to one of the direction hearings, the legal practitioner proceed to passively threaten the first applicant, stating that if [NAME] were not represented that the case would be dismissed, the legal practitioner went on to try and pick apart [NAME] case and turn [NAME] own evidence against them, the legal practitioners demeanor was negative towards [NAME] plight for justice and sounded much like he was colluding with [NAME], in fact [NAME] legal representative stated on record that the first applicant rejected the services of the appointed legal practitioner in the directions hear august 2021, [NAME] legal practitioner had been in contact with the legal practitioner that had been appointed to [NAME], evidence of this collusion is on the record. (Errors in original) 47 There was no basis at all for serious allegations that counsel "threatened" the applicants or "colluded" with the legal representatives for the respondents. He did no such thing. On the contrary, he acted in an entirely appropriate way.

Disposition 48 For the reasons above, weighing all the factors in the balance and having particular regard to the lack of merits in the applicants' claims, in my view it is not appropriate to exercise the discretion under r 1.39 in the circumstances of this case. 49 Accordingly, I will refuse the applicants' application for extension of time and dismiss the proceeding, with costs. I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Callaghan.

Associate: Dated: 7 July 2022

SCHEDULE OF PARTIES VID 656 of 2021 Respondents [NAME] Respondent: [redacted]