Case: Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388
Outcome: referred to
Previously, the power to make orders of this nature was contained in O 10, r 7. In Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388, Wilcox and Gummow JJ considered the principles which should govern the discretion to dismiss a proceeding under O 10, r 7 of the Federal Court Rules . In my respectful opinion, their Honours' observations apply equally to the power in O 35A, r 3(1). Their Honours said (at 396-397): "The discretion conferred by O 10, r 7 is unconfined, except for the condition of non-compliance with a direction. As it is impossible to foresee all of the circumstances under which the rule might be sought to be used, it is undesirable to make any exhaustive statement of the circumstances under which the power granted by the rule will appropriately be exercised. We will not attempt to do so. But two situations are obvious candidates for the exercise of the power: cases in which the history of non-compliance by an applicant is such as to indicate an inability or unwillingness to co-operate with the Court and the other party or parties in having the matter ready for trial within an acceptable period and cases -- whatever the applicant's state of mind or resources -- in which the non-compliance is continuing and occasioning unnecessary delay, expense or other prejudice to the respondent. Although the history of the matter will always be relevant, it is more likely to be decisive in the first of these two situations. Even though the most recent non-compliance may be minor, the cumulative effect of an applicant's defaults may be such as to satisfy the judge that the applicant is either subjectively unwilling to co-operate or, for some reason, is unable to do so. Such a conclusion would not readily be reached; but, where it was, fairness to the respondent would normally require the summary dismissal of the proceeding. In the second of the two situations we postulate, a significant continuing default, it does not really matter whether there have been earlier omissions to comply with the Court's directions. Ex hypothesi the default is continuing and is imposing an unacceptable burden on the respondent. But the continuance of the non-compliance is of the essence of this situation. If, when the Court looks at the matter, the direction has already been complied with, the defaulting applicant may be ordered to pay any wasted costs; but it would be difficult to justify the dismissal of the proceeding solely because of that default." 26 I do not think that this case falls within either of the two situations identified by their Honours. Whatever else might be said about the applicant's failure to comply with Court orders and its failure to put forward an affidavit explaining in a clear and simple fashion the reason or reasons for those failures, I do not think that it can be inferred that its non-compliance is such as to indicate an inability or unwillingness to cooperate with the Court and the other party or parties in having the matter ready for trial within an acceptable period. Nor do I think that this is a case in which the non-compliance is continuing and occasioning unnecessary delay, expense or other prejudice to the respondents. There has been non-compliance but I would not describe it as continuing, bearing in mind the outlines of evidence that have now been filed and the expert's report which will be filed. There has been delay and there has been some expense to the respondents, but I can make an order for costs in relation to that expense. In the end, I would not describe the applicant's conduct as amounting to "a significant continuing default". 27 In the circumstances, I considered it appropriate to decline to make orders staying or dismissing the proceedings and, instead, I adjourned the commencement of the trial for a relatively short period.