FEDERAL COURT OF AUSTRALIA

Rogers Trading as Living Space Building v Dale & Meyers Timber Trade Centre Pty Ltd ACN 100 593 824, in the matter of Rogers [2005] FCA 862

GREGORY ROGERS T/as Living Space Building v DALE & MEYERS TIMBER TRADE CENTRE PTY LTD ACN 100 593 824

QUD 131 OF 2005

DOWSETT J

BRISBANE

14 JUNE 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The motion for a stay be dismissed;

2.         The appellant pay the respondent’s costs of the motion, including reserved costs;

3.         On or before 28 June 2005 the respondent file and serve an outline of the issues raised in the Notice of Appeal;

4.         The appellant file and serve any additions thereto on or before 5 July 2005.

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

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     This is an application for a stay of a sequestration order pending appeal filed on 25 May 2005.  I have examined the grounds of appeal to ascertain whether or not there is any reasonable prospects of success.  I have given Mr Rogers more than adequate opportunity to demonstrate such grounds and their viability.

2                     His complaints about the Magistrate’s decision appear to be on two bases.  First, he asserts a conspiracy between a person called Paul Hare and the judgment creditor which assertion, he suggests, if investigated, will demonstrate that the proceedings are an abuse of process.  However there is simply no evidence of any such conspiracy.  It is true that Mr Rogers swears that he believes that there is such a conspiracy, but the evidence goes no further than that.  The second ground of appeal seems to be that the judgment debt was not owned by Mr Rogers but by a company.

3                     As to the first ground, Mr Rogers asserts that he was unable to pursue it before the Magistrate because the Magistrate refused to permit him to issue subpoenas directed to persons who, in Mr Rogers’ view, were the principal players in the conspiracy.  However this decision was presumably based upon the absence of any firm basis for the allegation.  In those circumstances it is not surprising that the Magistrate refused to issue subpoenas to people who were not otherwise parties to the proceedings, merely so that Mr Rogers could cross-examine them at large in an attempt to prove his conspiracy theory.  To my mind, Mr Rogers has failed, despite more than ample opportunity, to demonstrate any cogent basis for that theory and therefore, any appropriate basis for issuing the subpoenas.  I cannot see that Mr Rogers is likely to be successful in any challenge to the Magistrate’s refusal to issue the subpoenas.  I should say that there is not presently any appeal against that decision.  I have inferred, in Mr Rogers’ favour, that he will at some stage, make an application to appeal on that ground.

4                     The second ground arises out of a document which is exhibit GR 2 to an affidavit which Mr Rogers has read and filed by leave today.  It seems to be a statement in proceedings between Mr Rogers and the Queensland Building Services Authority.  It purports to be a statement by Shane Arnfield dated 8 July 2004.  In that statement, Mr Arnfield asserts that a particular debt was owed by a company to the present judgment creditor, the company being Living Space Holdings Pty Ltd.  It seems from the statement that at the time, Mr Rogers was asserting that the debt was owed by himself, and the present judgment creditor was asserting that it was owed by the company.  Mr Rogers at least implies that this is the same debt as the present judgment debt.  The Judgment is against Mr Rogers, trading as Living Space Building.  It is not clear from the statement that the debt referred to by Mr Arnfield is the same as the judgment debt.  Nor does Mr Rogers say in his affidavit anything about the provenance of the statement.  At par 46, he says:

‘[The] Letter from the Petitioning creditor that was withheld from Hervey Bay Magistrates Court and which if used as evidence would have stopped the ex parte judgment being made.  The court was deceived and misled by SJ Gurnsey and the management of the petitioning creditor company.

This letter is proof of fraud by the creditor company on the Hervey Bay Magistrates Court and shows that FM Baumann was in error in law and fact when he claimed in his judgment reasons, that there is no chance of the judgment debt being overturned.’ 

5                     As I have said, it is not clear on the face of the document that it relates to the same debt as was the subject of the judgment in the Magistrates Court (ie the judgment debt).  The assertion that the document was withheld from the Magistrates Court is unmaintainable in view of the fact that the document is dated 8 July 2004 and the judgment was obtained in October 2003.  It also seems that the document was not before the Federal Magistrate.  No explanation has been given as to why it was not led in evidence there.  I should say that Mr Rogers asserts that it was in evidence, but I have looked at the affidavits on the file.  It does not seem to be exhibited to any of them.  For present purposes, I therefore must proceed upon the basis that it was not before the Magistrate.  However I accept that the contrary may be demonstrated at some later stage.  Litigants in person understandably have difficulty in managing documentary exhibits.  For present purposes, in considering this application for a stay, I proceed upon the basis that no proper explanation has been given as to the provenance of the document; no attempt has been made to explain why it was not put before the Federal Magistrate; and, in any event, on its face, it does not seem to me to assist the applicant’s case in the way that he suggests.

6                     In those circumstances, there are very little prospects of success on appeal.  It would be inappropriate to stay the bankruptcy.  My orders will therefore be that:

1.         The motion for a stay be dismissed.

2.                  The appellant pay the respondent’s costs of the motion, including reserved costs.

3.                  On or before 28 June 2005 the respondent file and serve an outline of the issues raised in the Notice of Appeal; and

4.                  The appellant file and serve any additions thereto on or before 5 July 2005.

Associate:

Dated:              27 June 2005