Malecki v Macko (No 2) [2024] FCA 82

Malecki v Macko (No 2) [2024] FCA 82

The proceeding should be dismissed because the applicant failed without reasonable excuse to attend several hearings, did not prosecute the proceeding with due diligence, and did not maintain a valid address for service. The respondents took all reasonable steps to notify the applicant, and no communication or participation was forthcoming. The case is the applicant’s, and he has not advanced it or complied with his obligations under the Rules.

Parties
Applicant: Andrew Malecki; First Respondent: Christopher Edward Macko; Second Respondent: Macko Corporation Pty Ltd (ACN 163 659 925) in its own right and as trustee for the Macko Corporation Trust
Jurisdiction
Australia
Judgment Date
15 February 2024
Procedural Posture
Application / Interlocutory Decision on Respondent's Application to Dismiss Proceeding for Want of Prosecution/default
Outcome
Proceeding dismissed
Legal Topics
Dismissal for Want of Prosecution, Default by Party, Appearing in Court, Address for Service, Substituted Service
Practice and Procedure Dismissal for Want of Prosecution Default by Party Appearing in Court Address for Service Substituted Service

Case Brief

Summary, issues, holding and outcome

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Parties

Andrew Malecki

Applicant

Christopher Edward Macko

First Respondent

Macko Corporation Pty Ltd (ACN 163 659 925) in its own right and as trustee for the Macko Corporation Trust

Second Respondent

Procedural Posture

Application / Interlocutory Decision on Respondent's Application to Dismiss Proceeding for Want of Prosecution/default

Legal Issues

  1. 1 Whether the proceeding should be dismissed for want of prosecution under rr 5.23(1)(b), 5.22(c) and (d) of the Federal Court Rules 2011 (Cth)
  2. 2 Whether the applicant was in default by failing to attend hearings and failing to prosecute the proceeding with due diligence

Ratio Decidendi

The proceeding should be dismissed because the applicant failed without reasonable excuse to attend several hearings, did not prosecute the proceeding with due diligence, and did not maintain a valid address for service. The respondents took all reasonable steps to notify the applicant, and no communication or participation was forthcoming. The case is the applicant’s, and he has not advanced it or complied with his obligations under the Rules.

Court Disposition

Proceeding dismissed

Orders

  • The proceeding dated 21 July 2021 be dismissed pursuant to rr 5.23(1)(b), 5.22(c) and (d) of the Federal Court Rules 2011 (Cth).