Liu v Stephen Grubits & Associates Pty Ltd [2018] FCA 537

FEDERAL COURT OF AUSTRALIA

Liu v Stephen Grubits & Associates Pty Ltd [2018] FCA 537 Appeal from: Application for extension of time and leave to appeal: Liu v Stephen Grubits & Associates [2017] FCCA 2999

File number: NSD 26 of 2018

Judge: LEE J

Date of judgment: 16 April 2018

Catchwords: PRACTICE AND PROCEDURE – non-appearance by applicant at hearing – order made pursuant to FCR 35.33 dismissing the application

Legislation: Federal Court of Australia Act 1976 (Cth), s 37M(3) Federal Court Rules 2011, rr 35.14(1), 35.33, 36.03

Cases cited: Liu v Stephen Grubits & Associates [2017] FCCA 2999

Date of hearing: 16 April 2018

Registry: New South Wales

Division: General Division

National Practice Area: Employment & Industrial Relations

Category: Catchwords

Number of paragraphs: 16

Counsel for the Applicant: The applicant did not appear

Counsel for the Respondent: Mr C Lambert

Solicitor for the Respondent: Michael Green Legal

ORDERS NSD 26 of 2018

BETWEEN: YUNLONG LIU Applicant

AND: STEPHEN GRUBITS & ASSOCIATES PTY LTD Respondent

JUDGE: LEE J DATE OF ORDER: 16 APRIL 2018

THE COURT ORDERS THAT:

1. Pursuant to FCR 35.33, the application for extension of time and leave to appeal be dismissed. 2. The applicant pay the respondent's costs on a lump sum basis in an amount to be fixed by further order. 3. Within 14 days of the date of this order, the respondent file and provide to the Associate to Justice Lee any material upon which it proposes to rely in respect of the quantification of the lump sum costs order, and the Court will deal with the quantification of those costs on the papers unless it wishes to hear further from the parties. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Revised from the transcript)

LEE J: 1 This proceeding was commenced on 17 January 2018 by the applicant filing an application for extension of time and leave to appeal in accordance with Form 118. The application was made pursuant to FCR 35.14(1) and, in particular, sought an extension of time for leave to appeal against an interlocutory order of the Federal Circuit Court made on 4 December 2017: see Liu v Stephen Grubits & Associates [2017] FCCA 2999. 2 A notice of objection to competency was filed by the respondent on 31 January 2018. The notice of objection stated that the application for extension of time did not indicate why the applicant was unable to appeal "in time in accordance with rule 36.03 of the Federal Court rules (sic) 2011". 3 Of course, FCR 36.03 identifies the time period in which an appellant must file a notice of appeal, rather than an application for leave to appeal. Despite this, consistently with the course taken by the applicant (given he has filed an application for leave and sought an extension of time), the position of the respondent is that the proposed appeal is sought in relation to an interlocutory order, and it is necessary for leave to be sought. In any event, leaving these issues to one side, the matter first returned before me substantively on 23 February 2018. At that time, I made a series of orders, including that the application for extension of time to seek leave to appeal and any matters raised by the notice of objection to competency be listed for hearing at 10.15 am on 16 April 2018. I also directed that any submissions to be relied upon by either party be filed and served by 11 April 2018. 4 Prior to the case management hearing on 23 February 2018, the Appeals Unit of the Court received a communication from the applicant, which included a letter from a consultant psychiatrist. The letter indicated that the applicant had suffered some difficulties relating to his mental health and relevantly said: In my opinion he is currently not fit to participate in legal proceedings due to his ongoing mental illness. I suggest reviewing this in 6 months. 5 In the light of the medical certificate, during the course of the case management hearing, I explored with the applicant the possibility of a litigation representative being appointed. No such application was pursued, and the applicant's daughter, who assisted the applicant at the case management hearing, indicated to the Court that she did not believe it was appropriate that she fulfil such a role. 6 Having reviewed the papers, it appears that the difficulty of the applicant engaging with legal proceedings by appearing, or making the necessary arrangements for someone to appear on his behalf, is unlikely to be resolved, at least in the foreseeable future. I say this in part because of two further communications received by the Appeals Unit of the Court prior to the hearing on 16 April 2018, which are in evidence. 7 The first, received on 13 April 2018, indicated that the applicant was not fit and could not attend the hearing on 16 April 2018 (although no updated medical evidence in acceptable form was provided, or at least is in evidence, to sustain such a contention). The email went on to indicate: Both my family and myself believe it will have negative effect to my health if I attend this hearing, and I could not prepare any other materials for this hearing, as it was the court which asked me to wait for the final result of the FCC hearing. If the case remain listed, please kindly use the previously submitted document to make the judgement. Furthermore, my doctor could not attend the court hearing on behalf of me, he also could not find time with such a short notice. (Uncorrected) 8 I infer that the reference to the doctor attending Court was made in relation to order 3 made on 23 February 2018, which provided that: In the event that the applicant wishes to adjourn the hearing, or alternatively wishes to pursue the appointment of the litigation representative pursuant to FCR 9.61, any material to support such an application be filed and served by 9 April 2018 and the maker of any representation relied upon by the applicant in any affidavit or report proposed to be tendered in support of any such application be available for cross-examination at 10.15 am on 16 April 2018 if so requested by the legal representatives of the respondent. 9 No affidavits or reports or applications as contemplated by this order were filed by the applicant by 9 April 2018. 10 The second communication was received on 16 April 2018 at 2.19 am. Amongst other things, it referred to so-called "new evidences for the appeal". The email went on to say that: I believe, nobody can accept an order, which demand a patient, who is suffering mental health disorders, and who had been bullied by the respondents for such a long time, without listening to the actual case at the court, but just discussing procedures, and order the applicant to pay the legal fee to the respondent. I trust the court can give a fair judgement based on all the submitted documents to the Federal court and the Federal Circuit Court of Australia, thank you. If you need any further information, please feel free to contact me. (Uncorrected) 11 When the matter was called on for hearing at 10.15 am on 16 April 2018, it was called three times outside of Court and, consistently with the communications tendered by the respondent, to which I have already made reference, there was no appearance by or on behalf of the applicant. 12 Mr Lambert, who appeared for the respondent, then applied for the dismissal of the application pursuant to FCR 35.33, which provides that if a party is absent when an application such as the present is called on for hearing, any other party may apply for such an order. 13 I am not satisfied that if I was to give the applicant further time by way of an adjournment, there is any likelihood that he will appear to make substantive submissions in support of his application. Nor am I satisfied that it is likely that arrangements will be made for proper and up to date medical evidence to be put before the Court by sworn evidence (which could be tested) to satisfy me that it is appropriate to appoint a litigation representative or, alternatively, defer this proceeding for some period. 14 In dealing with this application, I am required by s 37M(3) of the Federal Court of Australia Act 1976 (Cth) to have regard to the overarching purpose of the civil practice and procedure provisions, which is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. 15 In all the circumstances, I consider that given the non-appearance of the applicant (and in the absence of material filed in accordance with order 3 made on 23 February 2018 supporting the making of any adjournment application) it is both appropriate and in accordance with the overarching purpose to dismiss the application pursuant to FCR 35.33. 16 Mr Lambert applied for indemnity costs. I consider that in all the circumstances, given the fact that the proceeding has not been determined on the substantive merits, it is appropriate that an order be made that costs follow the event on the ordinary, party/party basis. Having said this, Mr Lambert also applied for a lump sum costs order. Given the fact that the Court now encourages the making of lump sum costs orders, such an application is, in my view, appropriate and I will make orders facilitating the determination of a lump sum order for costs to avoid the delay and cost of a taxation. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee.

Associate: Dated: 20 April 2018