FEDERAL COURT OF AUSTRALIA
Davy v ABS Business Sales Pty Ltd [2019] FCA 1466
ORDERS
Applicant | ||
AND: | First Respondent PETER BENJAMIN MOLONEY Second Respondent KENNETH ALLSOP Third Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The application filed 22 May 2019 is dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REEVES J:
INTRODUCTION
1 This is an application for an extension of time and leave to appeal a decision of the Federal Circuit Court delivered on 31 October 2017 (see Davy v ABS Business Sales Pty & Ors [2017] FCCA 2651 (Davy)). In that decision, the primary judge dismissed an application brought by Mr Davy to reinstate his originating application, which he initially filed on 5 May 2015 and which was dismissed on 16 June 2016.
FACTUAL BACKGROUND
2 The factual background of this matter was helpfully summarised by the primary judge in Davy at [3]–[10] as follows:
3. This matter first came before the Court on 29 June, 2015. On that date Judge Vasta made orders directing the parties to file and serve affidavits and referred the matter to a registrar of the Court for mediation.
4. Neither party appeared for the mediation on 7 August, 2015.
5. The matter returned for mention before Judge Vasta on 30 October, 2015. Again, orders were made for the parties to file certain material and the matter was fixed for 29 March, 2016 for hearing.
6. On 16 March, 2016 his Honour vacated the hearing date and made further orders for the filing of material.
7. The application next came before the Court on 16 June, 2016. On that occasion there was no appearance by the applicant. Judge Vasta ordered:
That the Application and Statement of Claim in these proceedings filed by the Applicant on 5 May 2015 be struck out pursuant to s.17A of the Federal Circuit Court of Australia Act 1999 (Cth) and r.13.10 of the Federal Circuit Court Rules 2001 (Cth), on the basis that the Applicant does not have standing to commence the Application and Statement of Claim pursuant to s.116 of the Bankruptcy Act 1966.
8. On 28 June, 2017 (so more than one year later) the applicant filed the present application in a case seeking to “reinstate BRG389/2015 struck out 16-6-16.” It is that application which is the subject of these reasons.
9. The application in a case was listed for hearing before Judge Vasta on 7 August, 2017. During the course of that hearing matters came to light that led Judge Vasta to disqualify himself from further hearing any of these proceedings. The application was adjourned and subsequently transferred to me.
10. On 11 September, 2017 the application came before me for hearing. The applicant appeared by telephone link. The respondents appeared by counsel.
(Italics in original)
3 As is already mentioned above, the primary judge delivered his decision on 31 October 2017. Since that decision was interlocutory in nature, an appeal against it requires leave (s 24(1A) of the Federal Court of Australia Act 1976 (Cth)). Furthermore, r 35.13 of the Federal Court Rules 2011 (Cth) requires an application for such leave to be filed within 14 days after the order was made, that is by 14 November 2017.
4 Mr Davy filed the present application in this Court on 22 May 2019. He was therefore more than 18 months late.
5 At the first case management hearing in this application, the parties sensibly agreed to this matter being determined on the papers.
6 The principles bearing on an application for an extension of time for leave to appeal are well-established. In determining whether to exercise the discretion to grant such an extension, the Court will normally have regard to the length of any delay, the explanation offered for the delay, any prejudice that may be suffered by the respondent and the applicant’s prospects of success in the proposed appeal if an extension were to be granted (see EVA17 v Minister for Immigration and Border Protection (2018) 262 FCR 304; [2018] FCAFC 214 at [19] per Perry, Derrington and Wheelahan JJ).
7 In the affidavit he filed in support of his application, the explanation Mr Davy provided for his delay included the following matters. First, he said he failed to appear when his matter was listed for mention on 16 June 2016 because he was involved in criminal proceedings in the District Court of Queensland. He said that, prior to that hearing, he had written to the Court and requested an adjournment. Notwithstanding this request, he claimed Vasta J dismissed his application on the ground that he did not have standing to make it under s 116 of the Bankruptcy Act 1966 (Cth).
8 In respect of the hearing before Jarrett J on 11 September 2017, Mr Davy said he felt as though it was “more of a chat”. He claimed that no evidence was adduced by him, nor was any requested.
9 Mr Davy said that he did not appear for the delivery of the judgment on 31 October 2017 and that he did not receive a copy of the judgment thereafter. He claimed that he was not invited to the “hearing” on that date. He alluded to the fact that this might have resulted from the Court having an incorrect address for him. However, he claimed that the Court must have had his correct address because he had corresponded with it on 21 April 2017 and he received a reply to the address provided on 25 May 2017.
10 Following “his release on 2 October 2017” (I take this to mean he was in custody for some period prior to that date), Mr Davy said he ascertained that his application had again been dismissed. He said he then sought to have the matter reinstated, although it is unclear from his affidavit precisely what he did. He further claimed that in late 2018 he followed up with the Court and obtained some further information about his application.
11 Finally, Mr Davy claimed that he had lodged complaints with the Court and he had only received one reply. He claimed that reply, which he received on 28 November 2018, contained “a number of false statements and claims”. He concluded his affidavit by stating that he:
… now seek[s] … the same result … obtained from Judge Vasta [that being] that Judge Jarrett recuse himself [and] (therefore his decision) because of his apprehended ‘bias and malice towards [him]’ as shown by his verbal assault on [him] on 31 October 2017, PLUS the fact that [Judge Jarrett] dealt with [his] sequestration order in January 2012 …
CONSIDERATION
12 The length of the delay in this matter is extraordinary. The explanation Mr Davy has offered for that delay is entirely unsatisfactory. Mr Davy’s application must therefore be dismissed.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves. |
Associate:
