FEDERAL COURT OF AUSTRALIA
Mircevski v Pattison [2011] FCAFC 144
IN THE FEDERAL COURT OF AUSTRALIA | |
| Appellant | |
AND: | First Respondent PATTISON BUSINESS RECOVERY & INSOLVENCY SPECIALISTS PTY LTD (ACN 098 345 343) Second Respondent INSOLVENCY AND TRUSTEE SERVICE AUSTRALIA Third Respondent DEPUTY COMMISSIONER OF TAXATION Fourth Respondent |
DATE OF ORDER: | |
WHERE MADE: |
THE COURT ORDERS THAT:
2. The appellant pay the third and fourth respondents’ costs of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
VICTORIA DISTRICT REGISTRY | |
GENERAL DIVISION | VID 605 of 2011 |
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA |
BETWEEN: | ALEX MIRCEVSKI Appellant
|
AND: | PAUL ANTHONY PATTISON First Respondent PATTISON BUSINESS RECOVERY & INSOLVENCY SPECIALISTS PTY LTD (ACN 098 345 343) Second Respondent INSOLVENCY AND TRUSTEE SERVICE AUSTRALIA Third Respondent DEPUTY COMMISSIONER OF TAXATION Fourth Respondent
|
JUDGES: | LANDER, GILMOUR AND GORDON JJ |
DATE: | 14 NOVEMBER 2011 |
PLACE: | MELBOURNE |
REASONS FOR JUDGMENT
THE COURT:
1 This is an appeal from a judge of this Court dismissing the appellant’s proceeding.
2 The appellant was represented before the primary judge by pro bono counsel, who was also representing the appellant on this appeal until Friday, 11 November 2011 when an order was made by a registrar of the Court permitting counsel to cease providing legal assistance to the appellant after the appellant indicated his consent: r 4.15 of the Federal Court Rules 2011 (Rules). The appellant appeared unrepresented on the appeal.
3 On 19 July 2011 a judge of this Court made the following orders:
1. The appeal be listed for hearing in the Appellate and Full Court sittings of the Court in Melbourne, commencing on 31 October 2011 before a Full Court.
2. The hearing be listed for an estimate of half a day.
3. In accordance with Practice Note APP2, no later than 4.00pm, 20 clear working days before the hearing of the appeal, the appellant must file and serve on the respondents his outline of submissions.
4. In accordance with Practice Note APP2, no later than 4.00pm, 15 clear working days before the hearing of the appeal, the respondents must file and serve on the appellant a copy of their outline of submissions together with a list of materials they require to be included in Part C of the Appeal Book.
5. In accordance with Practice Note APP2, no later than 4.00pm, 10 clear working days before the hearing of the appeal, the appellant must file and serve a copy of any submissions in reply on the respondents.
6. In accordance with Practice Note APP2, no later than 4.00pm, 5 clear working days before the hearing of the appeal, the appellant must:
(a) file four copies; and
(b) serve on the respondents an appropriate number of copies of Part C of the Appeal Book.
7. Outlines of submissions will not exceed 10 pages in length, including any annexures.
8. Each party file and serve a list of authorities and legislation in accordance with Practice Note CM2.
4 The appellant has not complied with those orders, and as a consequence the respondents have not been able to comply with the orders insofar as they require the respondents to provide submissions, a list of materials to be included in Part C of the appeal book, and a list of authorities. The respondents have applied to have the appeal dismissed. In response the appellant has sought an adjournment.
5 The appeal is from orders made by a judge of this Court on 25 May 2011. On that day the Court ordered that:
1. The substantive application is dismissed.
2. The applicant pay the first respondent’s costs of the proceeding.
3. The applicant pay the third respondent’s costs of the proceeding.
4. There is liberty to apply on the question of costs.
6 In the amended application before the primary judge the appellant had sought the following orders:
(a) An inquiry be held into the conduct of the First Respondent in respect of the Applicant and all persons for whom the First Respondent currently acts as a Trustee;
(b) The First Respondent be removed as Trustee in respect of the Applicant and all persons for whom the First Respondent acted as a Trustee as at 28 February 2011;
(c) The Applicant be granted leave nunc pro tunc under section 30(1)(b) of the Bankruptcy Act 1966 to file and serve an application to set aside judgment in the Melbourne Magistrates Court No. U01864627; and
(d) The First Respondent and Second Respondent provide an account under section 30(2) of the Bankruptcy Act of all fees and disbursements charged and/or assigned by the First Respondent to the Second Respondent and/or other persons (including corporations) since 8 April 2008.
7 Clearly the appellant would not have had standing to seek the order in paragraphs (a) and (b) insofar as it related to other persons. Moreover, the Court would not have had jurisdiction to make the order in paragraph (c). The third and fourth respondents were not subject to any claim for relief. When the matter came on before the primary judge, the application was unsupported by any admissible evidence.
8 Subsequent to the start of the proceeding Mr Pattison sought to resign as a registered trustee from the office of trustee of 272 separate estates pursuant to s 180 of the Bankruptcy Act 1966 (Cth). On 8 July 2011 North J made an order removing Mr Pattison as a registered trustee from those estates, which included the appellant’s estate. Subsequently, the Official Trustee has been appointed as trustee of the appellant’s estate.
9 When the matter came on before the primary judge the appellant’s counsel sought an adjournment of the proceeding in circumstances where the appellant had failed to comply with earlier orders of the Court for the provision of evidence upon which the appellant wished to rely.
10 After the judge refused the appellant’s application for an adjournment, the appellant’s counsel asked that the appellant be called as a witness to give evidence in relation to a claim that his former trustee had stolen items of personal property from the appellant. Counsel for the Official Trustee said that the matter had previously been disposed of by Middleton J in another proceeding. The judge refused the application.
11 After that application was disposed of the appellant’s counsel asked to “withdraw this matter before the Court in whole.” That application was opposed by counsel for the Official Trustee who said that the appropriate order was that the proceeding should be dismissed. Counsel informed the Court that a previous application of the same kind had been made in the Federal Magistrates Court, and that the appellant had sought to withdraw that proceeding but instead it had been dismissed.
12 The primary judge then called upon the appellant’s counsel and invited him to confirm that the appellant had no evidence to present on the appellant’s application. The Court was informed that there was no evidence that would be satisfactory to the Court. The Court then ordered that the application be dismissed. Orders were subsequently made as mentioned above.
13 The notice of appeal specifies the following grounds:
1. Apprehension manifest bias to a reasonable bystander.
2. Refusal to allow witness to be called.
3. Refusal to concider (sic) affidavit material before the Court.
4. Error of law as regulation sect 179 of Bankruptcy Act 1966.
5. Failor (sic) to concider (sic) Orders requested under 30(b) in the alternative to section 179 of the Bankruptcy Act 1966.
6. Failor (sic) to concider (sic) the inherent power of Court concerning the conduct of the “Trustee”.
14 The appeal is brought from an order dismissing a proceeding which the appellant wished to withdraw, where the substantial relief sought in that proceeding had been obtained in a separate proceeding and where the appellant had not complied with an order as to the presentation of evidence and was not in a position to present evidence.
15 The appellant has not complied with the rules relating to the provision of documents and submissions for the hearing of this appeal. He has not complied with the orders made on 19 July 2011 in relation to the prosecution of this appeal. The appellant is not in a position to proceed.
16 Nothing has been put to this Court by the appellant this morning which satisfactorily explains the grounds of appeal and their relevance to the question of whether the appellant should have been allowed to withdraw his proceeding or whether it should have been dismissed.
17 Section 25(2B)(ba) of the Federal Court of Australia Act 1976 (Cth) empowers the Court to dismiss an appeal for want of prosecution. Section 25(2B)(bb)(i) allows the Court to dismiss an appeal for failure to comply with a direction of the Court. Rule 36.74 of the Rules allows the Court to dismiss an appeal for failure to comply with the Rules.
18 The appellant has failed to comply with the Rules and with the Court’s directions, and he has failed to prosecute the appeal.
19 It is in everyone’s interest that the matter be brought to an immediate end and, for that reason, in addition to the default to which reference has been made, the orders of the Court are that the application for an adjournment is refused and the appeal be dismissed.
20 The appellant must pay the costs of the third and fourth respondents who are represented here today. The first and second respondents were not represented on the appeal.
21 The order of the Court is that the appeal be dismissed. The appellant must pay the third and fourth respondents’ costs of the appeal.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Lander, Gilmour and Gordon. |
Associate:
