Hygienic Travel Kit Pty Ltd v Commonwealth of Australia
[2023] QDC 9
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- Hygienic Travel Kit Pty Ltd v Commonwealth of Australia[2023] QDC 9
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Hygienic Travel Kit Pty Ltd v Commonwealth of Australia[2023] QDC 9
Hygienic Travel Kit Pty Ltd v Commonwealth of Australia[2023] QDC 9
DISTRICT COURT OF QUEENSLAND
CITATION: | Hygienic Travel Kit Pty Ltd v Commonwealth of Australia [2023] QDC 9 |
PARTIES: | HYGIENIC TRAVEL KIT PTY LTD (ACN 138 061 015) (plaintiff) v COMMONWEALTH OF AUSTRALIA (defendant) |
FILE NO/S: | DIS No 26 of 16 |
DIVISION: | Civil |
PROCEEDING: | Application |
ORIGINATING COURT: | District Court at Brisbane |
DELIVERED ON: | 3 February 2023 (ex tempore) |
DELIVERED AT: | Brisbane |
HEARING DATE: | 3 February 2023 |
JUDGE: | Porter KC DCJ |
ORDER: |
|
CATCHWORDS: | PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COURT SUPERVISION – WANT OF PROSECUTION OR LACK OF PROGRESS – where the plaintiff seeks damages in relation to the termination of the defendant’s home insulation subsidy scheme – where the defendant applies to have the proceeding dismissed for want of prosecution, or in the alternative summary judgment – where no action has been taken in the proceedings for over two years – where a director of the plaintiff requires leave to appear on behalf of the company – whether a director of the plaintiff company should be give leave to appear – whether the proceedings should be dismissed for want of prosecution Legislation District Court of Queensland Act 1967 (Qld) s 52 Uniform Civil Procedure Rules 1999 (Qld) r 5, 17 and 389 Cases Tyler v Custom Credit Corporation Ltd [2000] QCA 178 |
COUNSEL: | No appearance for the plaintiff |
SOLICITORS: | McKechnie (AGS Solicitors) for the defendant |
Introduction
- [1]I have before me an application by the defendant, the Commonwealth of Australia, for formal leave to take a step in the proceeding under Rule 389(2) Uniform Civil Procedure Rules 1999 (Qld) (UCPR). That step is to bring this application to dismiss the proceeding for want of prosecution, or in the alternative for summary judgment on the defence.
- [2]The circumstances of the case, and its merits, are relevant to both applications. Also relevant is this: The plaintiff, previously Jim’s Home Insulation Pty Ltd and now Hygienic Travel Kit Pty Ltd (though using the same ACN 138 061 015), is a company incorporated in this country. It does not and has never appeared, as I understand, by solicitors. Section 52(1) District Court of Queensland Act 1967 (Qld) provides that:
- In a proceeding, a party may appear in person or by:
- (a)a lawyer; or
- (b)with the leave of the court, another person.
- [3]A company cannot appear in person. If a person other than a lawyer is to appear for a company, that person requires leave.
- [4]Mr Alan Jorgensen appears, from the company searches, to have been and to still be a director of Hygienic Travel Kit Pty Ltd. There have been other directors from time to time. So far as I can tell from a current company search the other director is a person who Mr Jorgensen says is his wife, Amy Nguyen. Ms Nguyen appears from the search to be the beneficial owner of all 100 shares in the company.
- [5]Mr Jorgensen has appeared on a number of occasions on behalf of the company in these proceedings and the question of leave, as I understand it, has never been seriously considered. It appears to have just occurred that he has been permitted to speak on behalf of the company.
- [6]Mr Jorgensen is overseas in Savannah, Georgia, according to him, and has been overseas for some years. I bear in mind there could be good reasons for that, of course, including that he was overseas at the time COVID struck, as I understand it. However, given his absence from the country and some other factors in this case (discussed below), I was very concerned about whether leave should be granted for him to appear on behalf of the company.
- [7]Although the Commonwealth neither opposed nor consented to leave, it is ultimately a matter for this court whether a party who is not represented by a solicitor and who is not a litigant in person should be granted leave to appear.
- [8]Leave to appear in this context is something that is frequently not troubling to courts or to parties in the case of small companies that only have one director. It is important to remember, however, that not every person associated with a company is a person who should be given leave.
- [9]There are a number of factors that relate to this specific case which have led me to conclude that in this case leave should not be given. Those factors substantially overlap with the factors relevant to both the application for dismissal for want of prosecution and the summary judgment application brought by the Commonwealth and before the Court today.
- [10]I intend to grant the application for dismissal for want of prosecution, but the summary judgment application could just as easily have succeeded.
- [11]I should say that the Commonwealth also sought leave under r 389(2) of the UCPR to take a step in the proceedings. It struck me as peculiar that one would need leave to take a step when the application in question is to dismiss for want of prosecution, bearing in mind a compelling circumstance that would cause one ultimately to seek to dismiss a matter in the court’s inherent jurisdiction for want of prosecution, is a failure by the plaintiff to prosecute the case including failing to seek leave to proceed when the statutory stay under Rule 389(2) arises
- [12]However, it does seem to me, on at least my quick researches on the matter, that the Commonwealth correctly sought that leave. I was troubled however by the idea that leave to proceed to bring the application to dismiss for want of prosecution could be given, the application fail, and the plaintiff could then take the benefit of the lifting of the stay despite its own delay. However, that problem could be addressed if it posed the risk of unfairness. For example, a Court might would hear the defendant’s application for leave to proceed and the application to dismiss for want of prosecution together and if, for some technical reason, the Court was not satisfied there should be summary dismissal, but the plaintiff shows no convincing signs of seeking to proceed, the Court could simply refuse leave under Rule 389(2) and the stay would stand until there is an application by the plaintiff. But, in any event, because I am going to grant the application for dismissal for want of prosecution, that interesting technicality does not need to trouble us.
Background to the applications
- [13]Now, I need to say something about the background of these proceedings and Mr Jorgensen’s participation in it because that sets the framework for the resolution of both the leave point and the want of prosecution point.
- [14]These proceedings were commenced in 2016 in the Cairns registry of the District Court. The plaintiff was the company, Jim’s Home Insulation Pty Ltd. It claimed $150,000, and I quote:
- [F]or 125 homes insulated at $1200 per home, under the Government’s Home Insulation Scheme in 2009/ 2010 Insulation which terminated prematurely without reasonable notice or honouring the Governments promise to pay for the Home Insulation up to $1200 per home. These 125 homes were contracted with Jim’s Home Insulation Pty Ltd prior to the Government’s shock termination of the HIP on 19 February 2010, albeit they were installed after the termination date.
- [15]The first thing one would note is that a claim for relief in that form would be struck out as an abuse of process. In any event, the statement of claim that supports it is of only 13 paragraphs. It has been in the same form since 2016.
- [16]The statement of claim fails to meet the minimum requirements for an intelligible statement of claim, articulating a cause of action, such that a fair trial could be had of the claims advanced.
- [17]As has been identified in a number of intermediate appeal decisions in this State and others and the High Court, a party is entitled to a pleading which, at a minimum, allows them to apprehend the case made and which at a minimum, articulates a cause of action known to the law, even if the plaintiff is a litigant in person.
- [18]The fact that a plaintiff company cannot afford solicitors, and the fact that a plaintiff company is bringing proceedings being run by a director because it is impecunious does not mean that an inadequate pleading can be ignored.
- [19]The pleading is inadequate. On its face it is immediately clear there are two problems. First, it seems to articulate two causes of action. One is that somehow the obligation to pay the government arises from the existence of the Home Insulation Program (HIP). The allegation is that, somehow, because of the termination of HIP, the plaintiff was entitled to the $1200 that was payable under that scheme if it completed the work after the cancellation of HIP if it had contracts on foot with homeowners to install home insulation prior to the termination of the scheme.
- [20]The problem is that the pleading does not articulate a legal basis for the Home Insulation Program giving rise to any claims. In fact, in the absence of some kind of estoppel case or some such thing, I do not understand how a cause of action could arise except under a statute or subordinate legislation that gave rise to such a right.
- [21]The solicitor from the AGS has put before me the guidelines for the program, in an affidavit of Mr Powell, at court document 40, at paragraph 6, which summarises the HIP guidelines, but the difficulty is, of course, they are just guidelines. They do not give rise to any specific right to payment. They are guidelines. As I said, it might be that some sort of estoppel could be extracted or some such thing but that is not pleaded.
- [22]The second point that is raised in the pleading is that there is some kind of tripartite contract. Nothing in the pleading pleads a proper contract.
- [23]It respectfully has been obvious from 2016 that this claim and statement of claim fails to articulate a cause of action known to the law. The Commonwealth filed a notice of intention to defend which largely raised these points. All the Commonwealth’s defence does is respond to the allegations, but the fact remains that if you are responding to a defective pleading that does not articulate a cause of action, there is only so much you can do in a defence.
- [24]The history of the proceeding between 2016 and 2019 I do not need to go through in detail. Needless to say there seems to have been various applications brought in which Mr Jorgensen appeared for the plaintiff company and in which the Commonwealth sought to have the proceedings struck out for various reasons.
- [25]Ultimately, after some litigation about particulars and attempts to have the case dismissed for the failure of the plaintiff to comply with various orders, the matter came before Judge Morzone of this court. Importantly, however, at the end of the litigation over the particulars and such, his Honour gave reasons, on 6 March 2020, which explained in clear terms the problems with the pleading.
- [26]His Honour, while he was satisfied that the plaintiff had managed to comply with orders that had been made at the end of 2019 for the provision of particulars, then said this:
The question then is what happens next? The process which the plaintiff was undertaken in an effort to support the claim has exposed serious flaws in the cause of action relied upon the plaintiff in the way it is pleaded. That is, in the absence of the germane document, that is some three way contract, the balance of the statement of claim necessary falls and it is left in a state where the plaintiff has no viable cause of action. It may well be, that with further consideration of the case, and the material which is available, the plaintiff can frame and reframe the action in a way which is consistent with how matters really evolve; that is one involving a contract between the plaintiff and the home owners in the scheme which required the plaintiff to comply with its obligations to qualify for payment within the scheme’s parameters administered by the defendant Commonwealth. And once that qualification is so demonstrated with the relevant basal documents that would have been required for such an assessment, even during the life of the scheme, the plaintiff may be able to frame a cause of action showing entitlement to a payment notwithstanding the scheme had by then expired.
I make those remarks not to provide any assessment of merit of any potential cause of action but rather to be alert to some prospect of the matter being otherwise prosecuted by the plaintiff. Those matters are of course matters for the plaintiff and to the extent that there remains serious deficiencies in the plaintiff’s pleading that is too in the province of the plaintiff to remedy those things. It is also a matter for the defendant, if the state of the case remains unchanged, for it to pursue any relief for early determination. What is clear is that the case is far from being ready for any hearing in the merits and really is not even beyond the state of competent pleadings so as to inform the parties and the court in due course, a jury, of what the really issues are to be determined in the case.
- [27]Mr Jorgensen had been present for his Honour’s reasons. Indeed, his Honour gave those reasons on 6 March 2020, on the same day that he had spent some considerable time in oral argument with Mr Jorgensen participating. It was made crystal clear by those reasons, if not in the course of argument, that the pleading was deficient.
- [28]Nothing was done to amend the pleadings.
- [29]The Commonwealth then, not surprisingly, made a summary judgment application in May 2020.
- [30]Australia’s borders were closed, as we all remember, in about March 2020. The applicant filed an application for summary judgment on 15 May 2020. It was initially listed to be heard on 29 May 2020 but was adjourned to 26 June 2020. Mr Jorgensen, purportedly on behalf of the plaintiff, emailed the registrar on about 11 June 2020 saying he was in Bali and would not be able to return to Australia until late August. I interpolate to observe that was pretty optimistic, as we all came to discover.
- [31]The matter was adjourned to 11 September 2020 and then adjourned again to 30 October 2020 by consent.
- [32]On 27 October 2020, the Associate to Judge Morzone emailed the parties indicating he was not inclined to proceed with the application without Mr Jorgensen present in person.
- [33]On 30 October 2020, Judge Morzone issued orders on the papers that the summary judgment application was adjourned to a date to be fixed and Mr Jorgensen was to provide written notice of his return to Australia and a relevant flight number.
- [34]Mr Jorgensen never provided written notice of his return to Australia or a relevant flight number. That is not a breach of his Honour’s order because it appears Mr Jorgensen has never returned to Australia. However, the effect of those events is that no further action has been taken in respect of that application, nor to fix the defects in the statement of claim.
- [35]The only evidence before me of action by Mr Jorgensen notifying his intentions is that on 21 June 2022 the AGS, solicitors for the Commonwealth, received an email in which Mr Jorgensen said he was still in Bali and was unsure as to when he’d be able to return to Australia.
- [36]On 23 June 2022, Mr Jorgensen emailed the registry of the Cairns District Court, stating he expected to return to Australia in the next three months.
- [37]That did not happen. Indeed, what has happened is that Mr Jorgensen has now made his way to Savannah, Georgia in the United States of America.
- [38]The last step taken by either party in this case was the filing of the application by the Commonwealth for summary judgment on 15 May 2020. (Looking at Rule 389 since giving oral reasons I note the terms of Rule 389(3) UCPR. The last step would have likely been the order made by his Honour’s in March 2020). In any event the statutory stay under rule 389(2) UCPR came into effect in about the middle of last year, at the latest.
- [39]The Commonwealth could have left the matter to moulder but made the decision to try and dispose of the proceedings. It filed a new application on 5 October 2022 in which it discontinued its previous applications on which no orders had been made and instead brought the application before me for leave to proceed and to dismiss the proceedings for want of prosecution or, in the alternative, for summary judgment and costs. That application ultimately came before Judge Morzone on 9 December 2022.
- [40]It is to be remembered, at this point, that the previous summary judgment application had not proceeded because of his Honour’s judgment that he preferred Mr Jorgensen to be present in person for the argument on that application. It is evident that some years later, with Mr Jorgensen not having returned, his Honour took a different view
- [41]At the 9 December hearing, his Honour granted leave for the proceeding to be amended to change the name of the plaintiff company to Hygienic Travel Kit Pty Ltd and adjourned the hearing of the Commonwealth’s application to 3 February 2023. He directed the plaintiff company to file any submissions by 4 pm, 20 January 2023, and the Commonwealth to reply with any material by 4 pm, 27 January 2023. He gave leave to the parties to appear by video link, and directed that if the matter could not be heard in Cairns, it would be heard in Brisbane.
- [42]On 13 January, this year, his Honour transferred the proceeding to Brisbane and it was listed for hearing on 3 February 2023.
- [43]I point out those orders because I have before me the Affidavit of Julian Moss sworn 24 January 2023. That document has been filed in this proceeding. The transcript of the hearing of 9 December shows that Mr Jorgensen attended on that day as well, undoubtedly by video link, as it is not in doubt that he has not been in Australia. He raised a number of matters. He, amongst other things, on that day provided to Judge Morzone an application styled ‘Application for a Statutory Order to Review’. That was not filed by his Honour but made an exhibit in that proceeding. Although the proceeding was heard on 9 December, the application for statutory order to review is dated 6 December.
- [44]The application for statutory order to review is in emotive language. It is not language which should be used by any party participating properly in litigation in the court, even if hard points need to be made. The applicant was Mr Jorgensen personally, as well as the company, and the application included Judge Morzone as a respondent. It sought that the application for summary judgment be stayed. It accused the Commonwealth solicitors of fraudulent conduct in trying to gain ‘major illegal advantage over a self represented litigant’ and other relief.
- [45]These allegations arose out of Mr Jorgensen’s view that there were communications between the AGS and his Honour which were not copied to him. (I immediately observe, of course, that in the absence of leave to appear for the company, I do not know why Mr Jorgensen was entitled as a matter of law to be given notice. In any event, that might be a technical view but it is one worth keeping in mind.) I do not have anything to say about the rights or wrongs of that. The only relevance of that application is that the statutory order to review is misconceived and defective so much so that it is a document that can be given no weight at all.
- [46]In any event, if the underlying complaint was about some sort of dealing with Judge Morzone that Mr Jorgensen was entitled to hear about (although I am not sure why) and did not hear about (assuming that was somebody’s fault other than Mr Jorgensen’s because of attempts to serve, again I do not know) none of those matters have anything to do with me.
- [47]The material that I have had before me is the material which, on the evidence, has been served with the possible exception of Mr Moss’ affidavit of 24 January 2023. In any event, all that does is exhibit a transcript of a hearing during which Mr Jorgensen was present.
- [48]I stop at this point to note that ever since 2016 (and ever since his Honour’s clear warning that the pleading was defective, given in early 2020) nothing has been done by the plaintiff to produce a statement of claim that articulates any cause of action known to the law, much less one that is articulated in a form that is intelligible and consistent, at a minimum standard, with the Rules.
- [49]The matter was listed before me in the Civil Trial Division because of the perception it may take some time. That prediction has turned out to be correct. Mr Jorgensen sought leave from the registry to appear by video link and was granted that leave. The matter came before me at 10 am and Mr Jorgensen was attending by video link.
Leave to appear for the plaintiff refused
- [50]I started by telling Mr Jorgensen that I intended to turn my mind to whether he should be given leave to appear on behalf of the company. I then asked him to articulate for me the reasons why he thought he should have leave, and then told him I would put some points to him that I thought were relevant to discretionary factors on that question.
- [51]Mr Jorgensen’s principal argument as to why he should have leave to represent the company is that the company had a good claim on the merits. He explained, at some considerable length, why he thought the company had a good claim on the merits, but the difficulty was that his explanations did not persuade me that the company had a good claim on the merits. Quite the contrary.
- [52]Ultimately, it seemed to me that the true position was that the company had entered into contracts with homeowners and those contracts required the homeowner to pay the price for installation of insulation. In those circumstances it was unclear to me how there was a contractual right to payment from the Commonwealth, nor, indeed, why Mr Jorgensen’s company even had to proceed with the contracts after the cancellation of the scheme if the consumers were unwilling to pay for the work themselves. I listened at length to his explanations and simply could not see how a cause of action arose.
- [53]Indeed, I was persuaded, not only did the statement of claim not disclose a cause of action, but based on the things he was telling me, none could be fashioned. In an example of considerable advocacy flexibility, Mr Jorgensen, perhaps perceiving my doubt, suggested two other possible causes of action. The first was an action in ‘discrimination’ because he said his company was not paid for work done after the end of the scheme but other companies who did work after the termination of the scheme were paid for that work. The second, was an alternative cause of action alleging that there were some transitional arrangements that would have allowed all companies to be paid and of which the plaintiff could take advantage.
- [54]As to the first, the difficulty is that there is no evidence or legal basis for a claim for discrimination, even if the facts he alleges could be made out. They are not pleaded. They do not arise from the facts pleaded in the existing statement of claim.
- [55]As to the second, there is no identification of any statute or subordinate legislation that gives rise to such a claim. The proceedings have been on foot for seven years and still no such thing has been pleaded. It has been raised for the first time in oral argument on an application for dismissal for want of prosecution and on the question of leave to proceed.
- [56]Those causes of action are almost certainly statute barred in any event, even if such a causes of action could be identified.
- [57]The current pleading does not disclose any cause of action and everything I heard from Mr Jorgensen reinforced that view. The fact is that, doing the best I could, I just could not see how a cause of action could be fashioned, bearing in mind that nothing has happened to develop the case since Judge Morzone flagged very similar points in the quote I have set out above. I should say, with respect to his Honour, it is not a surprise that a judge would give a company, unrepresented, an opportunity to reflect on defects in a statement of claim before taking action to strike it out or dismiss the proceedings. However, that, of course, was some years ago and nothing has been done since.
- [58]Further to whether he should have leave to represent the company, Mr Jorgensen also made the submission that the company is unable to pay solicitors and suggested that that was the fault of the Commonwealth. It is certainly the case that if a company has resources to pay solicitors, it is difficult to see why leave should be granted but the fact the company is unable to pay solicitors can be a two-edged sword.
- [59]On his case, the company has no resources at all. The causes of action it seeks to advance on the statement of claim are defective and it is difficult, if not impossible, to identify one that could be advanced. In those circumstances a person should not be able to cause a company to litigate, safe in the knowledge that no assets are at risk if an adverse costs order is made. That tends against permitting leave to cause the company to continue to litigate.
- [60]Mr Jorgensen also argued that he should be granted leave because he is the one who has lived and breathed the matter ever since 2009 when the relevant events are said to have occurred. There is no doubt from listening to Mr Jorgensen, as I did for some time, that he has a lot of general knowledge about the background to the case and a lot of opinions about it. That does not necessarily qualify someone as a good person to conduct proceedings on behalf of a company, of course. A company has to comply with the rules and the UCPR when conducting civil litigation, in particular rule 5(3) under which the parties ‘impliedly [undertake] to the court and to the other parties to proceed in an expeditious way.’ To my mind, looking at the tenor of the claim and statement of claim, and the tenor and tone of the statutory order for review that was tendered before his Honour, it is plain that Mr Jorgensen suffers from two difficulties despite his detailed knowledge of the case. The first, is an inability to identify what is relevant for the purpose of legal proceedings from all the things that he knows and, the second, is a difficulty to adopt even a modicum of objectivity in assessing what is relevant to the proper conduct of the case
- [61]That aspect of his presentation, not just from the documents he has produced before me but his energetic and enthusiastic oral submissions, I think, on balance, disqualifies him as someone who should be given leave to represent the company.
- [62]His next point was that the sum claimed was small. Again, that is sometimes a factor that would favour granting leave but in this case, of course, the sum is small, the prospects are weak, if not non-existent, and one might actually ask why the court should permit someone to appear to continue to prosecute such a case?
- [63]He also, again, with considerable ingenuity, raised the proposition that the Commonwealth should not get a windfall from not having to pay the amounts in dispute. The difficulty with that is twofold. First, if someone gets a windfall, as a matter of law (and in the absence of an identifiable cause of action), they get to keep it. This is not a court whose job is to reverse windfalls. Secondly, based on Mr Jorgensen’s explanation of the relevant contracts, it is the homeowners who got the windfall.
- [64]He then submitted that this court should not be able to review the question of leave to represent the company because it had not been raised before. The problem with this point is that granting someone leave to appear does not necessarily apply to all aspects of the future conduct of proceedings so no estoppel can arise. Granting leave to appear is an interlocutory step. It does not give final relief. Accordingly, it can be reviewed at any time unless such review is an abuse of process.
- [65]The issue of leave has never been fully considered by any court. The Commonwealth has stayed its hand on challenging questions of leave but now that it is before me, it is a matter for this court to exercise its discipline over the conduct of proceedings before it. Since the last substantive hearings before Judge Morzone in 2020, a number of years have passed. Mr Jorgensen has not returned to Australia. Mr Jorgensen has not addressed the defects in his pleadings and so on. There is no difficulty in this court looking at the question of leave to appear in those circumstances.
- [66]There were some other matters that were addressed in our discussions about the leave question. It appears that Ms Nguyen is another director of the company and owns all the shares. Mr Jorgensen said she was his wife. I have no reason to doubt that, of course, but we do not know anything about what Ms Nguyen might think about the conduct of these proceedings. If that was all there was, one might have inferred, without hearing from Ms Nguyen, that she did not mind if Mr Jorgensen did this, but I do note that we really do not know what the other director and one hundred per cent shareholder thinks of this litigation. I should emphasise, I do not put a great deal of weight on that.
- [67]Another factor that was relevant is that in the course of discussion, it was obvious that Mr Jorgensen did not know with any precision or certainty, who the directors of the company were, where its registered office was, who the shareholders were and so on. That kind of lack of attention to detail in respect of the legal formalities of the company you seek to represent tells against granting leave to appear.
- [68]I did ask Mr Jorgensen further about the capacity of the company to employ solicitors. Ultimately, Mr Jorgensen got to the point of explaining that he did have solicitors acting for him in other matters, but I could not persuade myself from what he said that he had the resources himself to fund the company. I did not ask him to undertake to do so but the fact is that there does not appear (based on what he told me about being on a pension and so on) to be any basis to think any such undertaking would have been worth anything. His references to a successful new business for the plaintiff seemed speculative at best.
- [69]I specifically asked him whether he thinks he will be residing over the next couple of years in Australia. We had a long discussion about that. All I can say, as a result of it, is that I am not confident that I can assume he will be a resident of Australia consistently into the foreseeable future. Whether he returns or not and how long he returns for seemed to depend on other litigation, the prospects of which I cannot possibly assess. There certainly does not seem to be any concrete plan to return to Australia at the moment.
- [70]I did ask him why he had failed to try to address the pleading. I specifically put to him whether it was his intention to maintain the adequacy of the pleading, despite the criticisms of his Honour and the points that I raised in our discussion. Ultimately, Mr Jorgensen seemed to suggest that if he got the chance and he had some success in other matters, he would ask Mr Howard Alexander of counsel to provide him advice about a different approach to this case. It is speculative whether that will ever happen. I cannot see any explanation for why it has not happened since March 2020 and, in any event, circling back to where I started, I am not persuaded that any counsel will be able to turn this into a case with any reasonable prospects. Even if they can, it will be a completely new case which will have been statute barred for many, many years.
- [71]There was another difficulty. As I said, the company’s address for service is 4 Cardamine Street, Kewarra Beach. That appears to have been a house Mr Jorgensen used to live in. It has now been sold. He has taken no step to correct the address for service. (In those circumstances, complaints about not being notified about matters by the other party in litigation are hollow.) In any event, the new registered office of the company appears to be the home of a friend in Cairns. It seems to me, while that might be a valid registered office, there does not seem to be any proper basis to conclude that the company, under Mr Jorgensen’s guidance, has any prospect of providing an address for service which will be effective and timely to bring matters to his attention, even if it formally complies with r 17(1)(a)(ii) UCPR.
- [72]It is important that there be a reliable address for service for the company for the efficient conduct of proceedings. It is a small thing but it is something, like many other aspects of properly conducting this litigation to a minimum standard of fairness to the other side, that Mr Jorgensen appears to have no concern about.
- [73]For those extensive reasons, I refuse Mr Jorgensen leave to appear on behalf of the plaintiff in this proceeding and in respect of this application.
- [74]I want to be quite clear, if the company seeks to take another step in these proceedings and Mr Jorgensen seeks to appear, he will have to persuade a court to take a different view, to set aside my order, and give him leave to appear in the future. This order is an order that he be refused leave to appear in these proceedings in this court in any circumstance.
- [75]The formal order will be that I refuse him leave to appear on the defendant’s application filed 5 October 2022, and I refuse him leave to appear on behalf of the company in this proceeding.
Dismissal for want of prosecution
- [76]That leaves me, having refused leave to appear, with dealing with the application for dismissal for want of prosecution. It would be obvious to anyone familiar with the discretionary criteria relevant to such an application that most of the matters that I have covered on leave to appear also inform that application.
- [77]I have before me an outline of argument from Mr McKechnie, who appears on behalf of the Commonwealth on the application. He refers to the convenient summary of factors in Tyler v Custom Credit Corporation Ltd [2000] QCA 178. It is recognised that Justice Atkinson’s judgment in that case identifies factors that are ordinarily relevant to an application for dismissal for want of prosecution.
- [78]Mr McKechnie, in his outline, from paragraphs 10 to 17, articulates factors, most of which I have already touched on, that favour dismissal. I will not repeat them except to say that I rely particularly on these matters:
- (a)That the events of the statement of claim occurred more than 12 years ago;
- (b)That the proceedings themselves were not commenced until nearly six years later and if there is any cause of action that arises, it would have been close to the expiry of a limitation period, and possibly (depending on the facts) might have already been statute barred (it is hard to tell without a properly articulated pleading);
- (c)That the plaintiff has very poor prospects of success, particularly bearing in mind the current pleading is hopeless. I cannot see, at the moment, any cause of action that could be articulated arising out of the matters that are in the current statement of claim. Any other fundamentally new case would, itself, be statute barred;
- (d)That Mr Jorgensen is not present in Australia and there is no good basis to think he will be present in Australia; and
- (e)Rather importantly, (and not mentioned by Mr McKechnie) as the person directing the affairs of the company, Mr Jorgensen had an opportunity to be heard on this application by Judge Morzone directing him to file submissions.
- (a)
- [79]I cannot see why, in circumstances where the company cannot fund the litigation with a proper representative, I should permit the proceedings to continue where, frankly, their continuance looks likely, if in the hands of Mr Jorgensen (I say with respect) to fail to consistently comply with the rules of court.
Mr Jorgensen’s appearance on 3 February
- [80]Before I make final orders on the application, I want to explain something that happened in court on 3 February. The court permitted Mr Jorgensen to attend by video link. He told me he was attending from a hotel in Savannah, Georgia. There is nothing wrong with that. We started at about 10. At about 11.20 Mr Jorgensen told me that his laptop was telling him he was running out of battery. I asked him if that happened, how long it would take to get himself up and running again. He said about 20 minutes. I told him to continue his submissions and if he dropped out I would adjourn for 20 minutes. I explained that after 20 minutes we would return and if he was not with us, I was just going to proceed.
- [81]I took that view because the court provides an indulgence to a party attending by video link, particularly where it is a director purporting to run the affairs of a company from an overseas location. In addition, by that time Mr Jorgensen had spent over an hour making submissions on questions of leave which almost entirely covered the matters relevant to the want of prosecution application and because Mr Jorgensen had been given an opportunity by Judge Morzone, to make written submissions on the defendant’s application which he had not availed himself of. In all those circumstances I considered that the court had done enough to facilitate submissions by the plaintiff.
- [82]I returned about 25 minutes later and Mr McKechnie began his submissions. We left the line open, of course. Mr Jorgensen joined us about 15 minutes or so later. Unfortunately, some time after he joined us, we lost sound. He could hear me, but I could not hear him. For some time thereafter we tried to get his sound to work and it was not able to be done. I then offered for us to try to call him from the court. That was not immediately possible, it turned out, because of an overseas calling block on the court’s telephones. I then suggested that we try a Chorus Call and again that did not work because of the overseas block.
- [83]In the course of these discussions I said to Mr Jorgensen, ‘Well, this is not working, can you call me?’ and he shook his head vigorously. I could only take that to mean he either could not or would not call the court to participant in a case where he had been indulged by being permitted to attend remotely.
- [84]I adjourned the court while the court officer and my Associate attempted to get the block lifted on the Court phone. After some time without success I returned to court. I was told that the Court officer was trying to lift the overseas block. I was not prepared to wait any longer to deal with the matter. However, soon after my return the Court Officer informed me that the overseas block on the phone in Court had been lifted. I adjourned again and the court officer sought to dial the number that we had been given by Mr Jorgensen. The bailiff explained to me that:
I rang it once. It rang a couple of times and then it dropped out. The second time I rang, Your Honour, it rang as normal and I received a message saying the number you called does not have a voicemail set up, so it was as if it rang out to voicemail.
- [85]For whatever reason, Mr Jorgensen did not answer the phone. For all those reasons I considered it appropriate to proceed to determine the substantive application in his absence.
Order for dismissal
- [86]In those circumstances, I order that the Commonwealth have leave under r 389 UCPR to bring the application filed 5 October 2022; that the proceedings be dismissed for want of prosecution; and I have already made an order about leave to appear which should be included in the orders made today.
- [87]The Commonwealth has informed that they seek costs on the standard basis only. I order that the plaintiff pay the defendant’s costs of the application and the proceedings on a standard basis.
- [88]Why do I feel that’s only the beginning?