Simjanovska v Sentumar Pty Ltd trading as Storage King Rockdale (No 2) [2017] FCA 1388

Simjanovska v Sentumar Pty Ltd trading as Storage King Rockdale (No 2) [2017] FCA 1388

The applicant gave no adequate basis for recusal or for adjourning the case management hearing. She had notice of the hearing, failed to attend it, had not amended her originating application despite leave and an extension, had not filed an interlocutory application and affidavit seeking a further extension, and had not prosecuted the application with sufficient diligence. Given the earlier finding that the originating application had no reasonable prospect of success, it was appropriate to dismiss the proceedings under r 5.23(1)(b), making a strike-out order under r 16.21 unnecessary.

Jurisdiction
Australia
Judgment Date
27 November 2017
Procedural Posture
Practice and Procedure Application to Dismiss Proceedings and Strike Out Originating Application / Case Management Hearing; Respondents' Oral Application to Dismiss Under R 5.23(1)(b) and Strike Out Under R 16.21
Outcome
Proceedings dismissed under r 5.23(1)(b) of the Federal Court Rules 2011 (Cth), with no order as to costs.
Legal Topics
['dismissal for Default' 'failure to Attend Hearing' 'failure to Prosecute With Due Diligence' 'strike Out of Originating Application' 'recusal for Bias' 'adjournment']
['practice and Procedure'] ['dismissal for Default' 'failure to Attend Hearing' 'failure to Prosecute With Due Diligence' 'strike Out of Originating Application' 'recusal for Bias' 'adjournment']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Practice and Procedure Application to Dismiss Proceedings and Strike Out Originating Application / Case Management Hearing; Respondents' Oral Application to Dismiss Under R 5.23(1)(b) and Strike Out Under R 16.21

Legal Issues

  1. 1 ['Whether the judge should recuse herself for actual bias or apprehended bias.' 'Whether the case management hearing should be adjourned because the applicant claimed inadequate notice and other difficulties.' 'Whether the proceedings should be dismissed under r 5.23(1)(b) of the Federal Court Rules 2011 (Cth) because the applicant failed to attend the hearing and failed to prosecute the application with sufficient diligence.' 'Whether it was necessary to strike out the originating application under r 16.21 of the Federal Court Rules 2011 (Cth).']

Ratio Decidendi

The applicant gave no adequate basis for recusal or for adjourning the case management hearing. She had notice of the hearing, failed to attend it, had not amended her originating application despite leave and an extension, had not filed an interlocutory application and affidavit seeking a further extension, and had not prosecuted the application with sufficient diligence. Given the earlier finding that the originating application had no reasonable prospect of success, it was appropriate to dismiss the proceedings under r 5.23(1)(b), making a strike-out order under r 16.21 unnecessary.

Court Disposition

Proceedings dismissed under r 5.23(1)(b) of the Federal Court Rules 2011 (Cth), with no order as to costs.

Orders

  • ['The proceedings be dismissed under r 5.23(1)(b) of the Federal Court Rules 2011 (Cth).' 'There be no order as to costs.']