FEDERAL COURT OF AUSTRALIA

Rogers v Dale & Meyers Timber Trade Centre Pty Ltd

[2005] FCA 1891

GREGORY ROGERS TRADING AS LIVING SPACE BUILDING v DALE AND MEYERS TIMBER TRADE CENTRE PTY LTD ACN 100 593 824

QUD 131 OF 2005

DOWSETT J

5 DECEMBER 2005

BRISBANE

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

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

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                     I am presently entertainingan appeal from a refusal by a Federal Magistrate to set aside a sequestration order made by a Deputy Registrar against the estate of the appellant.  The Chief Justice has directed that the appeal be heard by a single Judge.  It has been listed for hearing today.

2                     On 24 August the District Registrar wrote to the parties advising that an appointment had been made to settle the appeal papers, the date of the appointment being 9 September 2005.  That date was subsequently vacated and another appointment made for 3 November.  On 2 November the appellant spoke to somebody in the Registry.  As a result, the Deputy District Registrar wrote to him as follows:

‘I note that when you were contacted by my assistant earlier today regarding a draft appeal record index in preparation of tomorrow’s scheduled appointment to settle the appeal record, you requested another adjournment and advised that you would not be in a position to have prepared any draft index until next Wednesday, 9 November 2005.  I have agreed to this extension, however, I expect a comprehensive draft to be provided to me and the solicitors for the respondent no later than 4.00 pm on the 9th.

I have also agreed to re-list the appointment for next Friday, 11 November 2005 at 10.00 am.  This will give the solicitors for the respondent and myself an opportunity to consider your draft,  and for a meaningful discussion to be held at the appointment. 

You are aware that this matter has been listed for final hearing on 5 December 2005.  Therefore the index must be settled and the appeal books prepared promptly so that all parties can be fully prepared for the hearing.  Accordingly, no further applications for extensions or adjournments will be granted.’

3                     The file indicates that there were other dealings between the Registry and Mr Rogers, the next relevant event being a letter from Mr Rogers dated 11 November 2005.  In it he indicated that he would be unable to attend on that date.  He said that he had no excuse other than ‘illness not of a physical nature’.  He said that:

            ‘In the past week or so, I have faced an onslaught from parties on the fringe of the bankruptcy appeal.  This involved the Federal Court before Justice Spender and the Supreme Court.  This took a toll on time and me. 

            Simultaneously, I was dealing with the Queensland Police in relation to complaints about Mr Fisher and S.J. Gurnsey.  I have dreaded seeing Fisher or Sally Gurnsey as there are now civil complaints on going.’

He also referred to other matters.

4                     Today the appellant has appeared and applied for an adjournment.  He has sworn an affidavit in which he asserts that various threats made by the solicitor for the respondent have had an effect upon his health and led to his being unable to focus his mind in order to prepare the appeal.  However it seems that if any threats were made - and I do not decide that question - they were made prior to the hearing before the Magistrate in May of this year.  As it seems that Mr Rogers appeared before the Magistrate and argued his case, it is difficult to infer that they had any operative effect upon him at that time or that they are now affecting him to any significant degree.

5                     He has not, today, offered any other justification for an adjournment.  It seems to me that he has deliberately chosen not to participate in the process of preparation of the appeal record and hoped for an adjournment.  In the absence of any ground for an adjournment, I see no reason why such hope should be realized.  I decline the application for an adjournment upon the ground that there is simply no reason demonstrated.

6                     As I have said, this is an appeal from a decision of a Federal Magistrate declining to upset an earlier decision by a Deputy District Registrar to make a sequestration order against the estate of the appellant.  That order was based upon a failure to comply with a bankruptcy notice.  That bankruptcy notice was based upon a judgment by default entered in the Magistrates’ Court.  The appellant made two unsuccessful applications to set aside the judgment.

7                     In the present proceedings at first instance, the Magistrate dealt with various grounds of opposition raised by the appellant, dismissing them all.  It seems that one ground was a claim of solvency.  He adjourned the matter for some days to enable the appellant to negotiate with his creditors with a view to paying them out, but nothing came of that.  In the result, as I have said, the sequestration order stood, although the Magistrate had, in effect, re-heard the matter on its merits.

8                     The appellant then commenced this appeal.  However, as I have previously said, he has refused to participate in preparation of the appeal book and has not provided any outline of argument.  Nonetheless, having declined his application for an adjournment, I have heard him advance such arguments as he wishes in support of his appeal. 

9                     He has repeatedly asserted that the solicitor for the present respondent, the judgment creditor, lied to the Magistrate.  When asked to particularise this allegation, the appellant initially resiled from it and said that perhaps ‘lie’ was the wrong word.  However he then asserted that the solicitor had lied at some stage in the proceedings before the Magistrate by saying that he had not received copies of relevant documents, that is, the application to the Magistrate to review the decision of the Deputy District Registrar.  That assertion, if true, could not have affected the outcome of the appeal.  The Magistrate re-heard the matter on the merits.  I do not infer that the solicitor lied, but it does not matter for present purposes.  If the appellant wishes to complain to the relevant authority about this matter, he is at liberty to do so.  I have no doubt that it will be dealt with appropriately.

10                  The only other ground of appeal ventilated with any degree of precision before me was the repeated assertion that the same solicitor had an improper purpose in prosecuting these proceedings.  It is said that he has, on occasions, said to the appellant that he ‘will keep him in bankruptcy for the rest of his life’ and that ‘it was not about bankruptcy’.  The difficulty with this argument is that these proceedings are not, in the end, the property of the solicitor.  The solicitor acts on instructions from the judgment creditor, the respondent.  Although the appellant has asserted that the respondent has, in fact acted in accordance with his solicitor’s instructions, my attention has not been drawn to any evidence to this effect.  In any event, it seems rather unlikely.  It may be arguable that an improper purpose on the part of the judgment creditor could invalidate the petition or lead to a discretionary bar to relief.  However I cannot see that ill-will on the part of the solicitor can do so unless the creditor can be shown also to have been so motivated.

11                  The Magistrate dealt specifically with an allegation of improper purpose on the part of the solicitor, dismissing it.  The appellant asserts that the ground which the Magistrate rejected differed from that which he now advances, which ground was also raised before the Magistrate but not considered.  It seems to me unlikely that his Honour would have overlooked an alternative basis for the allegation of improper purpose.  In any event, for the reasons which I have given, it does not matter. 

12                  The appellant has failed to identify any error of fact or law in the Magistrate’s reasons.  He has invited me to refer generally to six affidavits which he says were read before the Magistrate, without referring me to any particular aspect of them.  It is not my function on appeal to analyse all of the evidence with a view to discovering whether any aspect of it might arguably support any of the very broad allegations which have been made by the appellant in this case.  I have invited him to identify the true subject matter of his complaints.  He has, but only to a limited extent, taken advantage of that invitation.  In those circumstances, it is difficult for me to do more than say, as I have already said, that he has failed to identify any error of fact or law in the Magistrate’s decision.

13                  I should say a little more about the particular grounds identified in the notice of appeal.  Firstly, it is said that the Magistrate refused to allow the appellant to present evidence from five witnesses.  This appears to relate to a refusal to issue appropriate subpoenas.  No attempt has been made to identify the facts upon which the appellant relies in support of that ground.  I cannot investigate it in the absence of such assistance.  Secondly, it is alleged that the Magistrate refused a request for an adjournment so that the appellant could appeal to a ‘higher authority’ in connection with the decision to refuse to issue the subpoenas.  Similar comments apply.  Thirdly, the appellant complained that the Magistrate declined to disqualify himself for bias.  Again, no material has been put before me which could possibly support the assertion of bias.  Fourthly, the appellant claims that he had insufficient time to prepare and recover from assault and imprisonment by the solicitor acting for the creditor.  This appears to have concerned the same subject matter as was involved in his application for an adjournment of this appeal.  I find it incredible.  It seems likely that the Magistrate would have had the same view.  Again, it does not seem to me that any basis has been shown to support the allegation of error by the Magistrate.

14                  Fifthly, the appellant complains that he was not permitted to cross-examine Mr Fisher, who is the solicitor for the petitioning creditor.  However, no affidavit by Mr Fisher was read in the proceedings.  The question of cross-examination did not arise.  Sixthly, it is said that the Magistrate erred in stating that his only obligation was to consider solvency.  The appellant alleges that he filed uncontested evidence of solvency, but that has not been demonstrated to me.

15                  There are other grounds which appear to be restatements of either the allegation of improper purpose or that the solicitor lied in connection with various matters anterior to the proceedings before the Magistrate.  I have already dealt with those matters.  It is not necessary that I say any more about them. 

16                  In the circumstances the appeal must be dismissed.  I order that the appellant pay the respondent’s costs of the proceedings, including reserved costs.

Associate:

Dated:              23 December 2005