Aldous v State of New South Wales

[2015] FCCA 488

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALDOUS v STATE OF NEW SOUTH WALES [2015] FCCA 488

Catchwords:
BANKRUPTCY – Application to review decision of registrar in relation to costs – non-appearance by Applicant – application dismissed.

Legislation:  

Federal Circuit Court Rules 2001 (Cth), rr.13.03C, 16.05

Applicant: ADRIAN ALDOUS

Respondent: STATE OF NEW SOUTH WALES

File Number: SYG 743 of 2013

Judgment of: Judge Barnes

Hearing date: 23 February 2015

Delivered at: Sydney

Delivered on: 23 February 2015

REPRESENTATION

Applicant: No Appearance

Solicitors for the Respondent: de Mestre and Company Solicitors

ORDERS

1. There being no appearance by the Applicant the application of 10 October 2014 is dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules.

2. The Respondent notify the Applicant by mail of the orders made on 9 March 2014 and of the effect of r.16.05 of the Federal Circuit Court Rules.

3. The Applicant pay the costs of the Respondent as agreed and in the absence of agreement taxed in accordance with the Federal Circuit Court Rules.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 743 of 2013

ADRIAN ALDOUS

Applicant

And

STATE OF NEW SOUTH WALES

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application filed by Mr Aldous seeking review of a decision of a Registrar of this Court insofar as the Registrar, in the course of dismissing a creditor’s petition, ordered that Mr Aldous, the Respondent debtor in those proceedings, pay the Applicant creditor’s costs fixed in the amount of $7,905.60. 

2. Mr Aldous was present on 1 December 2014 when the matter was listed for hearing today.  At that stage I gave him the opportunity to file further affidavit evidence.  He took that opportunity, filing an affidavit on 27 January 2015.  Despite that, there was no appearance by him today at the time the matter was listed.  I note that the hearing was listed at 11.00 am at the request of Mr Aldous as he had indicated on the last occasion that he needed time to get to Sydney from where he lives.  However, Mr Aldous failed to appear by 11.30 am.  The solicitor for the Respondent to the review application indicated that he had unsuccessfully tried to contact Mr Aldous on his mobile telephone number.  There is no evidence of any explanation for Mr Aldous’ failure to appear. 

3. In these circumstances I consider it appropriate to dismiss the application for review for non-appearance pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth). I propose to require the solicitor for the Respondent to the review application to notify Mr Aldous, who is a self‑represented litigant, within two weeks of today’s date of the orders made today and also of the effect of r.16.05 under which the Court may vary or set aside an order after it has been made. If there is a satisfactory explanation for Mr Aldous’ absence today, he may seek to take advantage of that provision.

4. In circumstances where Mr Aldous has not appeared, the State of New South Wales also seeks that he pay its costs of these proceedings. In the absence of Mr Aldous this is an appropriate order to make. I note that if he were to successfully avail himself of r.16.05, obviously that would be one of the orders that would be before the Court were the matter to be reopened. However in the absence of his appearance, it is appropriate to order further that Mr Aldous pay the costs of the Respondent as agreed and in the absence of agreement taxed.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Associate: 

Date:  5 March 2015