FEDERAL COURT OF AUSTRALIA

Bagshaw v Jefferson (Trustee) [2002] FCA 955

LEITH GORDON BAGSHAW v PHILIP GREGORY JEFFERSON AND JAY ARSCOTT STEVENSON AS TRUSTEES OF THE ESTATE OF LEITH GORDON BAGSHAW

QG 7045 of 1997

DOWSETT J

26 JULY 2002

BRISBANE

THE COURT ORDERS THAT:

1.         The application is dismissed.

2.         The applicant pay the respondent’s costs of the proceedings, including reserved costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This matter has an extended history of procedural difficulty.  For some time now the Court has been seeking to obtain from the applicant, an address for service within this district in accordance with the Federal Court Rules.  I will not record all of the history of the matter.  It appears from the transcripts of previous hearings.  It is sufficient for present purposes to say that on 1 March this year, I extended time in which the applicant might file an address for service to 4 pm on Monday, 4 March, upon condition that prior to the expiration of that time, he file a proper notice of address for service by lodging the same in the registry of the Federal Court in Adelaide or by fax filing in the Brisbane registry on the approved fax filing number.  There was a further condition that Messrs McCarthy Durie Ryan Neil, solicitors, of 80 Old Cleveland Road, Capalaba, Queensland, forward a letter to the registry of the Federal Court in Brisbane, by fax if necessary, stating that their address was the applicant’s address for service in the proceedings and would remain so for the duration of the action unless they were released by the Court from providing that facility.  The applicant had previously indicated that the office of those solicitors was to be his address for service.  I also ordered that in the event of non-compliance with these orders, the application would stand dismissed.   

2                     The applicant subsequently filed another notice of address for service but did not nominate the address of those solicitors as his address for service.  He rather nominated an address at Baulkham Hills, New South Wales.  He had previously nominated that address at which he no longer lives.  In any event, it is obviously not within the district.  At the same time, in purported satisfaction of the second condition, the solicitors in question faxed a letter to Mr Bagshaw, a copy of which was provided to the Court.  It was in the following terms:

We note that you have requested us to receive certain mail and documents on your behalf and hereby advise that we consent to do so.  To facilitate this we would appreciate if you could advise us if your address details change in the meantime.

3                     Clearly, that letter did not comply with the second order.  It was not an undertaking to provide an address for service, nor was it an undertaking to continue to provide such an address for the duration of the proceedings unless released by the Court from so doing.  Further, there was still no address for service within the district.  I formed the view that the self-executing order had taken effect and that the proceedings stood dismissed.  With a view to clarifying that aspect, I brought the matter on for directions on 7 June.  On that occasion, I indicated to Mr Bagshaw that if he wished to apply to me for relief from the consequences of his failure to comply with the earlier orders, then he was at liberty to do so.  Since that time, no further step has been taken in the matter.  There is no point in leaving it on foot.  The application is dismissed.  The applicant is to pay the respondent’s costs of the proceedings, including reserved costs. 

Associate:

Dated:              30 July 2002