FEDERAL COURT OF AUSTRALIA

Satchithanantham v Multilink Investments Pty Limited [2002] FCA 974

PRACTICE AND PROCEDURE – interlocutory – appeal proceedings seeking review of decision of Federal Magistrate which affirmed sequestration order made by Registrar – appeal to be heard by single Justice of Federal Court pursuant to direction of Chief Justice – one of appellant’s purported grounds of appeal claims damages against legal representatives of respondent arising from allegedly negligent conduct on their part in the earlier proceedings - motion brought by respondent to have controversial ground of appeal dismissed in advance of appeal hearing – whether that particular ground of appeal misconceived such to require immediate dismissal.

Federal Court of Australia Act 1976 (Cth) subs 25(1A)

Federal Court Rules O 20 sub-r 2(1), O 52 sub-r 18(1)

Satchithanantham v Multilink Investments Pty Ltd [2002] FCA 914 cited

THAMBIAPPAH SATCHITHANANTHAM v MULTILINK INVESTMENTS PTY LIMITED

N 492 of 2002

CONTI J

5 AUGUST 2002

SYDNEY

THE COURT ORDERS THAT:

1.         The Appeal, of the appellant, in so far as it relates to Order 3 of the Appellant’s Notice of Appeal filed 28 May 2002, as amended by the Appellant’s Supplementary Notice of Grounds of Appeal filed 2 August 2002, be dismissed.

2.         The costs of the respondent’s motion be reserved.

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

REASONS FOR JUDGMENT

1                     On 22 February 2002, Registrar Hedge made a sequestration order in relation to the estate of the appellant Thambiappah Satchithanantham (“Mr Satchi”). On 7 May 2002, Federal Magistrate Driver dismissed an application for review of that sequestration order. Furthermore, on 27 June 2002, Justice Jacobson dismissed an application by the appellant seeking a stay of the sequestration order made by Registrar Hedge on 22 February 2002, which decision is reported as Satchithanantham v Multilink Investments Pty Ltd [2002] FCA 914.

2                     Mr Satchi has appealed against the sequestration order of the Federal Magistrate, and on 25 July 2002, I ruled that the appeal is appropriate to be heard by a single Justice of this Court. That appeal will be heard by me, in the exercise of the appellate jurisdiction of the Court, on 12 September 2002, pursuant to a direction made by the Chief Justice on 5 August 2002 under sub-section 25(1A) of the Federal Court of Australia Act 1976 (Cth).

3                     One of the orders sought by the original notice of appeal filed by Mr Satchi on 28 May 2002 reads as follows:

“(3)     Order against the respondent’s solicitor’s firm, the Trustee’s counsel Mr Johnson and the respondent’s counsel Mr Ash, jointly and severally for the damages and losses incurred by the appellant between his latest arrivals in Australia on 3 March 2002 till date for $380,000.00.”

4                     By notice of motion filed 6 June 2002, the respondent to the present appeal in this Court, namely Multilink Investments Pty Ltd (“Multilink”), seeks the dismissal of the abovementioned order number 3 sought by the notice of appeal, pursuant to Order 52 rule 18(1) of the Federal Court Rules. I observe that reliance is also placed upon Order 20 rule 2(1). For completeness, I set out the text of those rules below, and observe at the outset that Order 52 is the relevant order which specifically proscribes the Federal Court appeal procedure in circumstances such as present:

“Order 52 rule 18

Competency of Appeal

18(1)   A respondent may move on notice at any time for an order dismissing an appeal as incompetent.

Order 20 rule 2

Frivolity

2(1)     Where in any proceeding it appears to the Court that in relation to the proceeding generally or in relation to any claim for relief in the proceeding –

            (a)        no reasonable cause of action is disclosed;

            (b)        the proceeding is frivolous or vexatious; or

            (c)        the proceeding is an abuse of process of the Court,

            the Court may order that the proceeding be stayed or dismissed generally or in relation to any claim for relief in the proceeding.”

5                     On 2 August 2002, the Appellant filed a document entitled “Supplementary Grounds of Notice of Appeal”, which contains an amended order 3 which reads as follows:

“(3)     Order against the Respondent and the respondent’s solicitor’s firm m/s Bush Burke & Company, jointly and severally for the damages and losses of Professional fee incurred by the appellant and his company from his latest arrivals in Australia on 3 March 2002 for $380,000.00 and the loss of his usual salary and wages in Brunei, effective from March 2002 until full settlement, as to the allegations made in the paragraphs 18, 25, 26, 30, 31 of the notice of appeal filed on 28/5/2002.”

6                     For the purpose of the proceedings today pursuant to the notice of motion of Multilink filed 6 June 2002, I have taken the course of substituting order 3 of the supplementary grounds of appeal, for order 3 of the original grounds of appeal and observe that Mr Bush, the solicitor for Multilink, has sensibly not opposed that course.

7                     In apparent support of the viability of continuing his pursuit of the now amended order 3, on 2 August 2002, Mr Satchi also filed an affidavit which provides details of the events relevant to the purported Order 3 as he sees them, and also annexes further documentary material in support of the same.

8                     As I have explained to Mr Satchi, on my part with all the appreciation that he has no legal qualifications, and sympathetic to his current plight as a person who has been made bankrupt, with all the difficult personal and family consequences that thereby result, he plainly does not appreciate the legal implications of his proposed order 3 in its original or amended form. It is an order which could only be sought in the context of an independent action by him for professional negligence against several professional people, being an action which in the normal course would be required to take place in the District Court or the Supreme Court of New South Wales, and would probably take some years to resolve, involving as it would numerous parties, including the insurers for each of the professional persons involved, and doubtless complex issues of fact and law.

9                     It is readily apparent that the original order 3, and now the amended order 3, is misconceived and does not constitute a ground of appeal against the sequestration order of Federal Magistrate Driver, and that therefore the appeal as it relates to that order must be dismissed as incompetent under order 52 rule 18(1) of the Federal Court Rules (which I have extracted above at [4]), and on which I would prefer to rely in making this ruling, due to its specificity to appellate proceedings in this Court. I have taken the course of resolving this interlocutory matter now, so that at the scheduled hearing of this matter on 12 September 2002, I will have more time to be able to address the issues Mr Satchi wishes to place before me in his attempt to overturn his present status as a bankrupt, including the very comprehensive supplementary grounds which are set out in his Supplementary Grounds of Notice of Appeal filed 2 August 2002.

10                  I should formally record that after I explained the legal implications of the purported order 3 the subject of the present motion to Mr Satchi, he sensibly accepted the removal of that controversial ground of appeal in any event, in order that the issues pertinent to his substantive appeal could be ventilated at the appeal hearing on 12 September 2002.

11                  I therefore formally make orders in terms of order 1 of the notice of motion filed on 6 June 2002, referrable to the amended order 3 sought in the appellant’s notice of appeal. I reserve questions of costs of today’s motion of Multilink.

Associate:

Dated:              9 August 2002