FEDERAL COURT OF AUSTRALIA

Knight v Beyond Properties Pty Ltd [2010] FCA 337

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

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 Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1                                             This is an appeal from a judgment of Simpson FM given on 14 August 2009 in which he ordered that a review of the order of the Registrar on 13 May 2009 adjourning the hearing of the creditors’ petition to 17 August 2009 be dismissed and that a sequestration order be made against the estate of the appellant, and that the appellant’s creditors’ costs be taxed and be paid from the estate of the respondents’ debtor in accordance with the Bankruptcy Act 1966 (Cth).

2                                             The notice of appeal claims that the Federal Magistrate erred in: (a) concluding that a sequestration order be made at this time; (b) concluding that it is not appropriate in the circumstances to adjourn the petition; (c) dismissing Registrar Christie’s order to adjourn the petition; (d) failing  to consider whether the trademark opposition proceedings with respect to trademark application number 100123 is well advanced and likely to bring a beneficial result to a debtor; (e) failing to apply the relevant test with respect to adjourning the petition; and (f) failing to consider the relevant grounds including those made by Registrar Christie with respect to adjourning the petition.

3                                             The order sought on the appeal is that the appeal be allowed and the order of the Federal Magistrate dismissing the order of the Registrar making the sequestration order against the estate of Andrew Knight, and for the respondents’ costs to be taxed from the estate of Andrew Knight, be dismissed.  The notice of appeal is dated 1 September 2009.  The matter first came before the Court on 6 October 2009, when the appeal was listed for a first directions hearing.  On that occasion, neither the appellant nor the respondents appeared.  The proceeding was adjourned sine die. 

4                                             On 16 October 2009 my Associate wrote to the appellant at his address for service given on the notice of appeal advising that the proceeding had been adjourned sine die and that no parties had appeared; that the appellant must ensure the respondents are served; and that the appellant must notify the Court and the respondents if the matter is to proceed.  A copy of that letter was sent to the solicitors for the respondents who were identified in the notice of appeal.  On 6 January 2010 my Associate emailed the appellant at the email address shown on the notice of appeal attaching the letter of 16 October 2009 to the email, and asking the appellant to notify the Court and the respondents if the matter was to proceed. 

5                                             On 3 February 2010 my Associate received a telephone call from a solicitor employed by the respondents’ solicitor shown on the notice of appeal advising him that the respondents had not been served with the notice of appeal and enquiring what was to happen with the appeal.

6                                             On 18 February 2010 my Associate sent to the appellant a letter addressed to the appellant at his address for service shown on the notice of appeal advising the appellant:

I write to you in relation to the above matter and refer to my letter dated 16 October 2009 and email sent on 6 January 2010.

Please be advised that the appeal will be called on for hearing on Monday 15 March 2010 at 9.15 am in Adelaide. 

7                                             A copy of that letter was sent by email to the appellant’s email address shown on the notice of appeal.  A copy of that letter was also sent to the respondents’ solicitors.  When this matter was called on this morning, neither the appellant nor the respondents appeared.  It is not surprising, of course, that the respondents did not appear because they have not yet been served with the notice of appeal.

8                                             Order 52 rule 38A of the Federal Court Rules provides that:

(1)        If a party is absent when an appeal is called on for hearing, the Court may:

(a)        order that the hearing not proceed unless the appeal is again set down for hearing or such other steps are taken as the Court directs; or

(b)        adjourn the hearing; or

(d)        proceed with the hearing, either generally or in relation to any claim for relief in the appeal.

9                                             In this case, I am not in a position to proceed with the hearing of the appeal in the absence of the parties because I am unaware of the grounds upon which the appellant would contend support the notice of appeal.  I therefore cannot proceed under O 52 r 38A.  On the other hand, it is pointless to further adjourn the hearing if the appellant does not intend to prosecute the hearing. 

10                                          Section 25(2B)(bb) of the Federal Court of Australia Act 1976 (Cth) empowers the Court to dismiss an appeal to the Court for the failure of the appellant to attend a hearing relating to the appeal.  The appellant has failed to attend both hearings relating to this appeal.  In those circumstances, I intend to exercise the power given to me under s 25(2B)(bb) and dismiss the appeal.

Associate:

Dated:         8 April 2010