FEDERAL COURT OF AUSTRALIA

Ivory v Telstra Corporation Limited [2010] FCA 1361

THE COURT ORDERS THAT:

1.    The appeal be summarily dismissed;

2.    All documents relating to the appeal be sealed up and marked “Not to be opened other than pursuant to an order of a Judge of the Court’;

3.    The notice of motion filed on 18 August 2010 be dismissed; and

4.    The appellant pay the respondents’ costs of the appeal.

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    I have before me two notices of motion concerning a document filed on 21 June 2010 which has been treated as a notice of appeal. The purported appeal is from decisions of two separate magistrates made in the same proceedings at different times.

2    If the first decision is treated as being a final decision capable of appeal without leave, then the purported notice of appeal was out of time. However I prefer not to deal with the matter on that basis. There appears to have been an earlier attempted lodgement which may have been subject to inappropriate delay within the Court. However the circumstances are unclear.

3    One of the notices of motion is by the respondent seeking dismissal of the appeal as incompetent. The other notice of motion, filed by the appellant, seeks a stay of the orders made in the Magistrates Court and a bankruptcy notice, apparently to enable the appellant to make further inquiries in respect of certain matters, or so it appears from the appellant’s submissions today. Although second in time, the respondent’s notice of motion goes to the competence of the appeal as a whole. It seems appropriate that I deal with it first, notwithstanding the appellant’s objection to my adopting that course.

4    The notice of appeal is quite difficult to understand and is argumentative. Only with great difficulty can one identify from it the issues which the appellant seeks to raise. I asked him to identify the grounds that he wished to ventilate. He identified them in a fairly cogent way. I propose to deal with the matter on that basis.

5    The proceedings in the Magistrates Court were to set aside a bankruptcy notice. The application to set aside was dismissed. One of the grounds was the appellant’s assertion that the bankruptcy notice was based on certain orders as to costs made in the Supreme Court more than six years prior to the date of the bankruptcy notice. However, the notice was based upon an order made on 3 September 2008, following taxation. The Federal Magistrate found that, pursuant to the relevant rules of the Supreme Court, the assessment took effect as an order in its own right. In those circumstances, the fact that it related to orders for costs made at an earlier time is of no relevance. The Supreme Court has issued an order, dated 3 September 2008, under its seal. This Court and all other courts are obliged to take judicial notice of that order until such time as it has been set aside. There is no suggestion that it has been set aside. In those circumstances, there is nothing in the point.

6    The appellant also asserts that the order is a forgery. It seems that, at one stage, there was an order, sealed by the Court, which described the appellant, as “Kenneth Clive Ivory.” There is a second order in which the word “Clive” has been deleted and the word “Clyde” inserted. The seal of the court has been applied over the correction. I see no reason to doubt that the amended order was duly issued. There is nothing in this point.

7    The appellant asserts that he was not personally served with the bankruptcy notice. He says that it was left at his place of residence, and that this is not sufficient service under the Bankruptcy Act 1966 (Cth). However service appears to have been effected in accordance with the relevant regulations. Those regulations now contemplate service of a bankruptcy notice other than personal service.

8    The appellant then asserts that the orders for costs were, at some stage, waived. Accepting at face value his assertion that representatives of the respondent, at some stage, said as much, it is not alleged that there was consideration in support of such waiver. On that basis, the Federal Magistrate found against the appellant on that ground. As a matter of law, that seems correct. The appellant might have sought to base his case on some form of estoppel but has not done so.

9    Finally, the appellant asserts that, in the course of the proceedings in the Federal Magistrates Court, various witnesses committed perjury. This is a bare assertion without any evidence supporting it. It seems that he is referring to, and relying upon evidence given in the Magistrates Court where, in effect, a finding of credit was made against him. He wants to cross-examine the various witnesses, again, on appeal. No justification has been shown for the adoption of such a course. Further evidence may generally be led on appeal only if it is shown that it was not reasonably available at first instance, or that there was some reason for its not being led. Further evidence is not an appropriate mechanism for dealing with disagreements as to findings of fact. If the appellant wished to rely on other evidence to demonstrate perjury, then he may have been allowed to lead it on appeal. However he should have put the material before the Court. He has not sought to do that.

10    In those circumstances, I would dismiss the appeal. In any event, the notice of appeal, itself, is argumentative, embarrassing, impossible to understand and contains various allegations which are not, apparently, supported by any evidence. In those circumstances, I dismiss the appeal summarily. All documents relating to the appeal will be sealed and marked “Not to be opened, other than pursuant to an order of a Judge of the Court”. The appellant is ordered to pay the respondent’s costs of the appeal. Mr Ivory’s notice of motion is dismissed with costs.

Associate:

Dated:    3 February 2011