FEDERAL COURT OF AUSTRALIA

Hawkins v Kingsway Group Limited [2009] FCA 1335

Federal Court Rules

DAVID CHARLES HAWKINS v KINGSWAY GROUP LIMITED (ACN 089 265 127)

NSD 1135 of 2009

EMMETT J

23 OCTOBER 2009

SYDNEY

THE COURT ORDERS THAT:

1.         The notice of appeal be struck out.

2.         Leave be granted to the applicant to file an amended notice of appeal no later than 27 October 2009.

3.         The proceeding be listed for directions on Friday, 30 October 2009.

4.         Leave be granted to the respondent to file and serve no later than 28 October 2009 a notice of motion seeking summary dismissal of the proceeding together with any evidence in support of any such motion.

5.         Such motion be returnable at 9.30 am on 30 October 2009 before Emmett J.

6.         The applicant pay the respondent’s costs of today.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                          On 23 September 2009, a judge of the Court, in reviewing an order of the District Registrar, ordered that the application by Mr David Hawkins to set aside a bankruptcy notice be dismissed.  That order of the District Registrar was made on 27 May 2009.  The application for review was made by notice of motion filed on 2 September 2009. 

2                          On 8 October 2009, Mr Hawkins filed a notice of motion purporting to seek an order that the time for filing a notice of appeal from the orders of the primary judge be extended.  A draft notice of appeal was annexed to an affidavit sworn by Mr Hawkins on 8 October 2009. 

3                          When the application for extension of time was called on for hearing this morning, counsel for the respondent, Kingsway Group Limited (Kingsway), indicated to the court that Kingsway was of the view that the order made on 23 September 2009 was not interlocutory but was a final order, since it finally disposed of the application to set aside the bankruptcy notice.  Mr Hawkins had proceeded on the assumption that the order of 23 September 2009 did no more than refuse to extent the time for filing an application for review of the District Registrar’s order and was therefore interlocutory. 

4                          There is some confusion as to precisely what was done on 23 September 2009.  The review of the District Registrar’s order was by way of a hearing de novo.  On the material presently before me, which is incomplete, I am disposed to accept the proposition that the primary judge finally disposed of the application to set aside the bankruptcy notice, and that, therefore, a notice of appeal filed on 8 October 2009 would have been within the 21 day period limit imposed by the Federal Court Rules. 

5                          However, it is clear enough that the proposed notice of appeal is inadequate.  The grounds stated are as follows:

(1)        her Honour erred in the exercise of her discretion in relation to Order 3 rule 3 of the Federal Court Rules;

(2)        her Honour erred in her findings that the appellant was represented by a solicitor and counsel in the Supreme Court proceedings upon which the judgment is based; and

(3)        her Honour erred in finding that the evidence of the appellant was not sufficient to explain the absence of legal representation to prosecute the application to set aside the bankruptcy notice. 

The respondent, having conceded that an appeal was properly instituted, moved ore tenus for an order for summary dismissal of the appeal on the basis that it had no reasonable prospects of success. 

6                          Mr Hawkins accepted, after some argument, that the grounds in the draft notice of appeal do not identify the grounds upon which he wishes to rely.  Ground 1 is completely without particularisation.  Ground 2 misstates the finding that was made by the primary judge.  In the circumstances, I consider that it is appropriate to treat the affidavit filed on 8 October 2009 as the filing of a notice of appeal.  That notice of appeal should be struck out.  However, leave should be given to Mr Hawkins to file an amended notice of appeal.  That notice of appeal should be filed no later than 27 October 2009.

7                          I will list the matter for directions on 30 October 2009.  I will give Kingsway leave to file a motion returnable before me for hearing at 9.30 on 30 October 2009 seeking, if it is so advised, summary dismissal of the appeal, such motion to be filed and served no later than 28 October 2009, together with any evidence intended to be relied upon by the respondent in support of the motion.

Associate:

Dated:         17 November 2009