Blackman v Leppard (No. 3)
[2016] FCCA 272
•17 February 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BLACKMAN v LEPPARD (NO. 3) | [2016] FCCA 272 |
| Catchwords: PRACTICE AND PROCEDURE – Extension of time to file affidavit – consideration of factors for extension of time. PRACTICE AND PROCEDURE – Interpleader claim – whether any prospect of success. |
| Legislation: Civil Judgments Enforcement Act 2004 (WA), Part 4, Division 6, ss.3, 59 |
| AHI15 v Minister for Immigration & Border Protection [2016] FCA 64 Blackman v Leppard [2014] FCCA 1444 Blackman v Leppard (No. 2) [2015] FCCA 2344 Howells v Owners Corporation of Strata Plan 33149 [2015] FCCA 1920 Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; (1984) 58 ALR 305; (1984) 7 ALD 315 Sims v RM Capital Pty Ltd & Anor (No. 3) [2015] FCCA 1301 SZMWH v Minister for Immigration & Citizenship [2009] FCA 879 SZQGO v Minister for Immigration & Citizenship [2012] FCA 177; (2012) 125 ALD 449 Vu v Minister for Immigration & Citizenship [2008] FCAFC 59; (2008) 101 ALD 211 |
| Applicant: | MICHAEL DAMIEN BLACKMAN |
| Respondent: | BRENDAN RAYMOND LEPPARD |
| File Number: | PEG 40 of 2014 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | On written submissions, and in relation to the Applicant’s Application in a Case on 4 February 2016 |
| Date of Last Submission: | 4 February 2016 |
| Delivered at: | Perth |
| Delivered on: | 17 February 2016 |
REPRESENTATION
| For the Applicant: | In person |
| For the Respondent: | In person |
| For the Sheriff: | No appearance (excused by Court order) |
| For GSR Industries the Claimant by Interpleader | No appearance |
ORDERS
That the Applicant’s Application in a Case be dismissed.
The claim by GSR Industries by way of Interpleader for relief in these proceedings is dismissed.
There be no order as to costs:
(a)of the Applicant’s Application in a Case;
(b)of the claim by GSR Industries by way of Interpleader for relief, save that there be liberty to the Sheriff to apply for costs within 30 days.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 40 of 2014
| MICHAEL DAMIEN BLACKMAN |
Applicant
And
| BRENDAN RAYMOND LEPPARD |
Respondent
REASONS FOR JUDGMENT
Introduction
There are before the Court two applications:
a)an application filed on 19 October 2015 by the Sheriff for relief by Interpleader (“October 2015 Interpleader Application”) under Part 4, Division 6 of the Civil Judgments Enforcement Act 2004 (WA) (“Enforcement Act”). The October 2015 Interpleader Application is supported by an affidavit of the Deputy Sheriff of the Federal Court, District Registry, Perth, Mr John Antoni Klarich, sworn 19 October 2015 (“Deputy Sheriff’s October 2015 Affidavit”); and
b)an application in a case by Mr Blackman filed 21 December 2015 (“Mr Blackman’s Application in a Case”), which is that an affidavit, sworn by Mr Leppard on 8 December 2015 and filed by Mr Leppard on 10 December 2015 (“Mr Leppard’s December 2015 Affidavit”) ought to be rejected by the Court as being out of time.
Litigation history
The matter has some history, much of which was set out in Blackman v Leppard (No. 2) [2015] FCCA 2344 (“Blackman (No. 2)”). In Blackman (No. 2) the Court said as follows:
3. On 12 February 2014 Mr Blackman, who is the applicant in the substantive proceedings, made a claim in the small claims list in this Court’s jurisdiction under the Fair Work Act 2009 (Cth) (“FW Act”). Following mediation, at which the respondent, Mr Leppard, made no appearance, the matter went to hearing, at which Mr Leppard also made no appearance. On 7 July 2014 the Court made an order that Mr Leppard pay Mr Blackman unpaid wages in the sum of $2,937 by 21 July 2014. There was no order as to costs: see Blackman v Leppard [2014] FCCA 1444.
4. Mr Blackman was not paid the money that the Court ordered Mr Leppard to pay him. On 1 September 2014 Mr Blackman applied to the Court for a Property Seizure and Sale Order (“PSSO”) under s.59 of the Enforcement Act. On 4 September 2014 a Registrar of this Court made a PSSO authorising and commanding the seizure and sale of the saleable interest in the property of Mr Leppard to wholly or partially satisfy the judgment debt which with interest and enforcement costs was now said to be $3,293.22.
5. On 27 May 2015 the Interpleader Application was filed. In it the Sheriff indicated that he had taken or intended to take in seizure under the PSSO the following:
(1) (1) Black and yellow Komatsu forklift unregistered with no gas cylinder fitted no chassis number sighted and
(2) (2) Genox plastic/wood/cardboard shredding machine
(“Property”).
6. A claim to the Property or to the proceeds of sale of the Property was made by Nicholas Roy Mitchell (“Mr Mitchell”) whose address for service was Nick Mitchell’s Autos, 7/212 Gnangara Road, Landsdale, WA 6065. Mr Blackman did not admit Mr Mitchell’s claim, and the Sheriff applied for relief by way of Interpleader.
7. The Interpleader Application was supported by the Deputy Sheriff’s Affidavit which indicated that:
a) on 6 November 2014 and 2 February 2015 he caused to be taken in execution at Gnangara the Property pursuant to the PSSO issued by this Court, and was holding the goods at Gnangara: Deputy Sheriff’s Affidavit at [2]-[4];
b) written notice had been received by him on 4 February 2015 from Mr Mitchell claiming the Property, and that written notice of the claim had been given to Mr Blackman on 17 February 2015, and Mr Blackman had neither admitted nor disputed the claim: Deputy Sheriff’s Affidavit at [5]-[7]; and
c) the PSSO expires on 31 August 2015: Deputy Sheriff’s Affidavit at [8].
8. On 12 June 2015 a Registrar of this Court made the following orders:
… [it is unnecessary to set out the orders made by the Registrar on 12 June 2015].
9. Pursuant to the Registrar’s orders of 12 June 2015 Mr Mitchell, whose occupation is said to be mechanic/salesman, of 7/212 Gnangara Road, Landsdale in the State of Western Australia, swore an affidavit on 26 June 2015 (“Mr Mitchell’s Affidavit”) the terms of which are, in whole, as follows:
I have submitted a claim regarding the storage of a forklift and granulator machine at our premises. I am owed a substantial amount of money by Brendon [Brendan] Leppard and if the equipment is to be removed from our premise I would like [to] recover monies owed to me in part as submitted to the Sherrifs [Sheriff’s] Department.
10. On 10 July 2015 Mr Blackman filed an affidavit, the exact entire terms of which are as follows:
The Forklift and Genox plastic/wood cardboard shredding Machine is Solely owned by Brendan Raymond Leppard.
11. On 16 July 2015 a Registrar of this Court made an order that the Interpleader Application be referred to a Judge of the Court for determination.
Blackman (No. 2) at [3]-[11] per Judge Lucev.
The reasoning with respect to the extension of time for the operation of the Property Seizure and Sale Order (“PSSO”) made under s.59 of the Enforcement Act, and the dismissal of the Interpleader Application then made by Mr Mitchell, need not be set out as they were specific to the circumstances then before the Court. It suffices to observe that on 31 August 2015 the Court made orders as follows:
1.Pursuant to s.102(4) of the Civil Judgments Enforcement Act 2004 (WA) the operation of the Property (Seizure and Sale) Order issued by a Registrar of this Court on 1 September 2014 have its operation extended until 31 August 2016.
2.The claim by Nicholas Roy Mitchell by way of Interpleader for relief in these proceedings is dismissed.
3.That the affidavit of Brendan Raymond Leppard sworn 28 August 2015 be removed from the Court record and returned to Mr Leppard.
4.There be no order as to costs.
(“31 August 2015 Orders”).
Mr Blackman’s Application in a Case
Mr Blackman’s Application in a Case seeks orders that:
1.Dismiss claim sought by GSR Industries for not having affidavit done in time
2.To go ahead with procedure of sale.
The relief sought in proposed order 1 is effectively final relief, and therefore not appropriate for the Court to deal with on an Application in a Case, particularly where final relief on the October 2015 Interpleader Application is determined by the Court below: see [19]-[45] below. Further, the second proposed order is not appropriate for this Court to deal with, because whether the sale procedure pursuant to the PSSO proceeds is a matter for the Sheriff, unless this Court otherwise orders, which it has not. It is therefore unnecessary for the Court to determine and make orders with respect to Mr Blackman’s Application in a Case. There will therefore be an order that the Mr Blackman’s Application in a Case be dismissed.
It is not necessary to deal with the issue of whether or not the affidavit was “done in time” for the purposes of determining Mr Blackman’s Application in a Case. This is because the issue of whether or not the affidavit ought to be the subject of an extension of time to permit its being considered in relation to the October 2015 Interpleader Application is considered, and determined, by the Court below.
The October 2015 Interpleader Application
Background
There is no evidence that Mr Leppard has paid the money that the Court ordered him to pay to Mr Blackman on 7 July 2014 in Blackman v Leppard [2014] FCCA 1444 (“Blackman (No. 1)”). Although that is arguably contempt of the Court, no contempt proceedings have been brought at this stage either by Mr Blackman or of the Court’s own motion.
On 19 October 2015 the October 2015 Interpleader Application was filed. In it the Deputy Sheriff indicated that he had taken or intended to take in seizure under the PSSO the following:
(1)Black & Yellow Komatsu forklift unregistered with no gas cylinder fitted no chassis number sighted and (2) Genox plastic/wood/cardboard shredding machine
(“Property”).
The Deputy Sheriff’s Affidavit indicates that he holds the Property; and:
a)written notice was received by him on 18 September 2015 from GSR Industries claiming the goods;
b)written notice of GSR Industries’ claim was sent to Mr Blackman on 21 September 2015; and
c)GSR Industries’ claim was disputed (presumably by Mr Blackman) by written notice dated 29 September 2015. In this latter respect, the Court can infer that it was Mr Blackman who disputed the claim as the October 2015 Interpleader Application indicates that the “judgment creditor has disputed the claim” made by GSR Industries. Mr Blackman is the judgment creditor.
On 16 November 2015 a Registrar of this Court made the following orders:
1. In relation to the interlocutory application by Interpleader dated 15 October 2015:
(a)by 7 December 2015, GSR Industries (the “Claimant” referred to therein) is to file and serve any affidavit together with any submissions in support of its claim to the goods referred to in the affidavit of John Antoni Klarich filed on 15 October 2015;
(b)by 21 December 2015, the Judgement Creditor is to file and serve any affidavit together with any submissions in reply; and
(c)by 21 December 2015, the Respondent is to file and serve any affidavit together with any submissions in reply.
2. The Deputy Sheriff be excused from further attendance.
3. The ruling on the interlocutory application by Interpleader be made on the papers, unless the Court otherwise orders.
4. There be liberty to apply.
The Court notes that there was no appearance by the respondent, Mr Leppard, at the hearing before the Registrar. Nor was there any appearance by GSR Industries, or any corporation purporting to trade as GSR Industries. Nor has GSR Industries filed a Notice of Address for Service under r.6.01 of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”).
Mr Leppard’s December 2015 Affidavit
No leave and an extension of time
Mr Leppard’s December 2015 Affidavit was apparently accepted for filing by the Registry on 10 December 2015. As no leave was granted for affidavits to be filed in this matter, other than in accordance with the orders of the Registrar on 16 November 2015, Mr Leppard needed leave for the affidavit to be filed out of time. No application for leave has been made for Mr Leppard’s December 2015 Affidavit to be filed out of time.
Pursuant to r.3.05(1) of the FCC Rules the Court may extend time fixed by an order, and pursuant to r.3.05(3) of the FCC Rules may extend time even if the time fixed has passed. The power under r.3.05(1) and (3) of the FCC Rules may be exercised by the Court of its own motion: see Federal Court Rules 2011 (Cth), r.1.40, which apply to the circumstances by reason of r.1.05(2)(b) of the FCC Rules.
There are no criteria for extending the time set out in r.3.05 of the FCC Rules, and the Court’s discretion is, therefore, unfettered, but it is generally accepted that the relevant considerations are those set out by the Federal Court in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; (1984) 58 ALR 305; (1984) 7 ALD 315; FCR at 348-349 per Wilcox J, recently summarised in AHI15 v Minister for Immigration & Border Protection [2016] FCA 64 at [18] per Edelman J as follows:
a)the extent of the delay;
b)whether the applicant has an acceptable explanation for the delay including action taken by the applicant in the meantime;
c)whether the grant of leave would cause prejudice to the respondent and, if so, the extent of that prejudice; and
d)whether the substantive grounds of the application or appeal have merit.
It is for the Court to weigh these factors, and according to the particular circumstances one factor may outweigh another.
These principles have generally been accepted by this Court: see Sims v RM Capital Pty Ltd & Anor (No. 3) [2015] FCCA 1301 at [12] per Judge Lucev; Howells v Owners Corporation of Strata Plan 33149 [2015] FCCA 1920 at [15] per Judge Nicholls.
Extent and explanation for delay
The extent of the delay in filing Mr Leppard’s December 2015 Affidavit is short, being a period of just three days. If there were an acceptable explanation for the delay then the shortness of the extent of the delay might weigh in favour of time being extended in which to file Mr Leppard’s December 2015 Affidavit. In this case, however, there is simply no explanation for the delay at all, acceptable or otherwise. The failure to explain a delay when seeking the indulgence of an extension of time is sufficient reason for a Court not to grant an extension of time: SZMWH v Minister for Immigration & Citizenship [2009] FCA 879 at [7] per Stone J. In the absence of any explanation for the delay this factor weighs against any extension of time for the filing of Mr Leppard’s December 2015 Affidavit.
Prejudice to Mr Blackman
Insofar as an extension of time in which to file Mr Leppard’s December 2015 Affidavit might prolong these proceedings, Mr Blackman is disadvantaged and prejudiced by reason of the ongoing non-payment of monies owed to him under the Court’s order of 7 July 2014. As indicated above, those monies remain unpaid, hence the application for a PSSO to facilitate the sale of the Property, and payment to Mr Blackman. Furthermore, for reasons explained below, there is no utility in extending time, and therefore prejudicing Mr Blackman further, in circumstances where the October 2015 Interpleader Application lacks merit.
The prejudice to Mr Blackman would therefore weigh against the Court exercising any discretion to extend time of its own motion.
Merit
Principle
It is generally accepted that an extension of time application ought not to be granted where the substantive application has no merit or prospects of success, even where (as here) the delay is for a short period: SZQGO v Minister for Immigration & Citizenship [2012] FCA 177; (2012) 125 ALD 449 at [29] per Murphy J; Vu v Minister for Immigration & Citizenship [2008] FCAFC 59; (2008) 101 ALD 211 at [14] per Jessup J (with whom Gyles and Besanko JJ agreed).
Whether affidavit filed by GSR Industries
A further reason that Mr Leppard’s December 2015 Affidavit ought not be read or considered by the Court (and ought not to have been accepted by the Registry) is that it is not an affidavit referred to in Order 1(a) of the Registrar’s orders of 16 November 2015. It is not an affidavit filed by GSR Industries as the claimant. Mr Leppard’s December 2015 Affidavit says that it is “Filed on behalf of Brendan Raymond Leppard”, who is the respondent to the substantive application in which the as yet uncomplied with order for Mr Leppard to pay Mr Blackman was made on 7 July 2014. Further, in circumstances where GSR Industries has not filed a Notice of Address for Service, or any other form of notice of Appearance, Mr Leppard’s December 2015 Affidavit is not one which can be said to have been filed by GSR Industries. If it was intended that Mr Leppard’s December 2015 Affidavit was intended to be made by him in support of GSR Industries’ claim there is no evidence to confirm how it is that he is able to do so. Mr Leppard’s December 2015 Affidavit in the formal parts gives his name, and address, and his occupation as “Manager”, but neither in the formal part of the Affidavit nor in its body does Mr Leppard say for whom he is a “Manager”, and there is no mention of GSR Industries, or how Mr Leppard might be, or is, associated with GSR Industries, in the body of Mr Leppard’s December 2015 Affidavit.
At the hearing of Mr Blackman’s Application in a Case on 4 February 2016 Mr Leppard sought to appear for GSR Industries, and said that he was a director of GSR Industries. Mr Leppard was informed that under r.9.04 of the FCC Rules it was necessary for a corporation to appear by a lawyer, unless leave of the Court was otherwise granted. Mr Leppard took the question of GSR Industries’ appearance in Mr Blackman’s Application in a Case no further. That cameo does not alter the fact that for the purposes of the October 2015 Interpleader Claim there is no evidence as to the nature of Mr Leppard’s connection (if any) with, or involvement in, GSR Industries.
The Court also notes that there is reference in the documents attached to Mr Leppard’s December 2015 Affidavit to a corporation, namely, Cannon Trading Pty Ltd, trading as GSR Industries. There is however no evidence, other than mere unsupported references to the corporate and trading names, as to the existence of either the company or the trading name. There is no evidence of any companies or business names search, or other corporate or business name documentation, to prove the existence of either the corporation or the trading name, or the identity of any of its directors, officers, shareholders or employees.
In all the above circumstances it is plain that GSR Industries has not complied with the order of the Registrar to file and serve an affidavit in support of its claim. There is therefore no evidence from GSR Industries in support of its claim.
Content and merits
Even if, contrary to all that appears above, Mr Leppard’s December 2015 Affidavit is an affidavit in support of GSR Industries’ claim, the Affidavit, for reasons which follow, contains no evidence, or no evidence in support of the October 2015 Interpleader Application.
The body of Mr Leppard’s December 2015 Affidavit reads as follows:
DOCUMENTS ATTACHED TO THIS AFFIDAVIT MARKED ANNEXURE A ARE THOSE DOCUMENTS AS REQUIRED BY THE COURT FOR ORDER MADE 16 NOV 2015
The attachments are numbered ANNEXURE A.
What is said in Mr Leppard’s December 2015 Affidavit is not evidence of any fact relevant to any claim for the Property by GSR Industries. No evidence is given as to the knowledge that Mr Leppard has of the provenance of the documents in Annexure A, or which identifies them and how they came into being. There is no evidence of Mr Leppard’s personal knowledge of any fact asserted in the annexed documents, or the source of any knowledge or information or the basis for any belief concerning the content of the annexed documents: Evidence Act, ss.69 and 172. As such, Mr Leppard’s December 2015 Affidavit does not contain any proof in support of GSR Industries’ claim.
Even if the Court has regard to the documents annexed to Mr Leppard’s December 2015 Affidavit they do not assist the October 2015 Interpleader Application.
The first document in the annexures is a letter as follows:
TO WHOM IT MAY CONCERN
Based on the written and indisputable facts that have only just came to my attention; I intend to apply for the original matter between myself and Blackman to be overturned in my favour
Whilst Blackman has always contended that I was the employer and he had never heard of Poly Processing/Condor the attached proves his untruth
I therefore request an adjournment in this matter: PEG40/2014 as if my application is successful all matters following should fall away
It is my belief that a true injustice will occur if this matter is to progress based on one man’s untruths versus fact absolutely refuting his opinion (as shown in the attached documents)
Sincerely
Brendan Leppard
PO Box 2175Yokine South. Western Australia 6060
Email: [email protected]
7th December 2015
(“Mr Leppard’s December 2015 Letter”).
The Court notes that as at the time of writing this judgment there has been no application under r.16.05 of the FCC Rules (or otherwise) to set aside the judgment in Blackman (No. 1).
It is true to say that Mr Blackman always contended that Mr Leppard was the employer, and for the purposes of obtaining judgment in Blackman (No. 1) gave evidence to that effect, and was not challenged on that evidence because there was no appearance by Mr Leppard. However, Mr Leppard bases his allegation of untruthfulness by Mr Blackman on a suggestion that Mr Blackman contended that he had never heard of Poly Processing/Condor. That allegation is however untrue because in the initiating process for this application, namely the Form 5 Small claim under the Fair Work Act 2009 (“Form 5”) there are a number of references to “Poly Processing”, including:
a)those words crossed out immediately above the name of the respondent, Mr Leppard, in the header to the Form 5;
b)at Part B Item 6 the name of employer is said to be:
BRENDAN LEPPARD (Poly Processing);
c)at Part F Item 20 the place of work is said to be “Poly Processing Unit 5/212 Gnangara Road Landsdale”.
Plainly, Mr Blackman acknowledged that he worked at a place which, seemingly, was referred to as Poly Processing. In this regard, Mr Leppard’s allegation simply cannot be made out. Further, Mr Leppard does not go so far as to suggest that Poly Processing, or some company or business with that type of name, was the actual employer of Mr Blackman, and does not proffer any evidence as to the fact of Poly Processing being the employer. There is no evidence of Poly Processing’s corporate or business name status, and no evidence, for example by way of payslips which are required to be kept by an employer for its employees, tendered in evidence to prove that Mr Blackman was an employee of Poly Processing.
The relevance of the reference to “Condor” is not immediately apparent, although, as discussed below, there is some evidence of a company called “Condor Australia Pty Ltd” which operated, or is operating, out of a factory at the same address as that given for Poly Processing by Mr Blackman: see Form 5 Part F Item 20; see below at [37]-[41].
The documents referred to in Mr Leppard’s December 2015 Letter also do not assist his case. The handwritten sheet of payment calculations: Mr Leppard’s December 2015 Affidavit, page 3, is a copy of the front of a two-sided single page document which Mr Blackman annexed to the Form 5. The other documents, being a copy of an email dated 13 November 2013 to a person called “Chris” to advise him that Mr Blackman was attending for a three hour trial on what appears to be 13 November 2013, and annexing Mr Blackman’s Curriculum Vitae: Mr Leppard’s December 2015 Affidavit, pages 4-7, take the matter no further.
The next document is a copy of an email dated 18 September 2015 from “Sue – Administration & Account” at Cannon Trading Pty Ltd trading as GSR Industries: Mr Leppard’s December 2015 Affidavit, pages 8-9. The email is to Mr Rafferty, who has a Western Australian Department of Justice email address. In the 18 September 2015 email, “Sue” makes a bare assertion that Cannon Trading Pty Ltd trading as GSR Industries “is and has been for some time the beneficial and actual owner of the Genox granulator and Komatsu Forklift currently stored at Nick Mitchell Autos Gnangara Road Landsdale”, and then goes on to assert that the Sheriff and the “Federal Court” have been provided with “full details pertaining to the actual ownership” of the Property: Mr Leppard’s December 2015 Affidavit, page 8. Assuming the reference to the Federal Court is meant to be a reference to this Court, the latter statement is untrue, as a reading of Blackman (No. 2) demonstrates. Further, the assertion that the Property is owned by Cannon Trading Pty Ltd Trading Pty Ltd trading as GSR Industries is an assertion which is not supported by any other evidence, and is inadmissible hearsay: Evidence Act 1995 (Cth) (“Evidence Act”), s.59(2). Even if the 18 September 2015 email is admissible, it does not actually prove that the Property is owned by anyone, let alone GSR Industries, or a corporation trading in that name. There is no documentation which proves a chain of sale and purchase which establishes a sale to, and purchase by, GSR Industries of the Property, or any part of the Property.
The next document is an email dated 27 March 2015 from Mr Leppard to Mr Mitchell in which Mr Leppard says that he does not, and had never, owned the Property: Mr Leppard’s December 2015 Affidavit, page 10. The 27 March 2015 email says nothing about the Property being owned by GSR Industries.
The next document is a copy of an email from “Brendan” to Mr Blackman and Mr Blackman’s email reply: Mr Leppard’s December 2015 Affidavit, page 11. Neither email addresses the ownership of the Property.
The next document is a copy of an email from “brendan.gsrindustries<[email protected]>” to “[email protected] dated 25 June 2015: Mr Leppard’s December 2015 Affidavit, pages 12-13, which annexes emails from March 2013, and in particular a copy of an exchange of emails between a person called Paul Rees, who is said to be from “Applied machinery” and “Joe-Coffee Cups N Lids” concerning a “Genox GXC2660 granulator” which it appears from the documentation has purportedly been sold to a company called Condor Australia Pty Ltd: Mr Leppard’s December 2015 Affidavit, page 12. The relevant emails are again inadmissible hearsay: Evidence Act, s.59(2). In any event, they do not prove that the Genox granulator referred to in those documents is the Genox granulator which forms part of the Property. Even if that were proven, all that it would prove is that that part of the Property was purchased, in 2013, by a company called Condor Australia Pty Ltd. What the relevance of that is to an assertion now made that GSR Industries, or Cannon Trading Pty Ltd trading as GSR Industries, owns the Property (including the Genox granulator) is not explained.
The next document appears to be a tax invoice dated 1 March 2013 addressed to Condor Australia Pty Ltd, which appears to be from a transport company called “GKR Transport”: Mr Leppard’s December 2015 Affidavit, page 14. The relevance of the tax invoice is not apparent, the description of the relevant goods being for “pallets” and “bundle of angle”. Even if goods were transported on the “pallets” that does not advance the matter further because the goods so transported are not described, and there is therefore no means of determining whether the goods transported were part of the Property, but even if that were the case it would still not prove anything other than that the goods were transported to Condor Australia Pty Ltd.
The next document, dated 1 March 2013, is a copy of an email from Condor Australia Pty Ltd to a person with a “gkrtransport.com.au” email address advising that certain goods for collection are available for collection and to be delivered to Condor Australia Pty Ltd at the Gnangara Road address: Mr Leppard’s December 2015 Affidavit, page 15. What the goods are is not disclosed, and again even if there was a description of the goods which accorded with the Property, or part of the Property, there is no chain of ownership which establishes that the Property, or part of the Property, belongs to GSR Industries, or any corporation trading under that name, either now or in the past.
The next document is a copy of an email dated 25 February 2013 from Mr Leppard, said to be a director of Condor Australia Pty Ltd, seemingly to “Joe” in relation to the Genox GXC 2260 granulator: Mr Leppard’s December 2015 Affidavit, page 16. The email deals with confirmation of an agreement to purchase a 2012 model Genox GXC 2260 granulator. Assuming the email is admissible, it is irrelevant, because it does not relate to how it is now said that GSR Industries, or Cannon Trading Pty Ltd trading as GSR Industries, owns that part of the Property described as a Genox granulator. The same can be said of the next two documents which are an email from “Joe-Coffee Cups N Lids” to “Brendan Brendan granulator” and an invoice from Coffee Cups ‘N’ Lids to Condor Australia for a “GENOX GXC 2260”: Mr Leppard’s December 2015 Affidavit, pages 17-18. The Court has assumed that the “2260” granulator referred to in these documents, is the same as the “2660” granulator referred to in earlier documents: see [37] above, but the discrepancy does nothing to advance the case that the granulator is owned by GSR Industries, or a corporation trading under that name.
The final document is a copy of an email dated 14 July 2013 from Mr Leppard, as a director of Condor Australia Pty Ltd, to “Carl” confirming that Condor Australia has agreed to purchase “the fork truck”: Mr Leppard’s December 2015 Affidavit, page 19. No further detail is provided in relation to what constitutes “the fork truck”. Nor is it explained how it is that a “fork truck” purchased by Condor Australia Pty Ltd in July 2013 is now said to be the property of GSR Industries, or Cannon Trading Pty Ltd trading as GSR Industries.
From the above examination of the documents it can be seen that even if the documents annexed to Mr Leppard’s December 2015 were admissible, they do not prove anything with respect to ownership of the Property, and in particular they do not prove that the Property is owned by GSR Industries, or Cannon Trading Pty Ltd trading as GSR Industries.
It cannot therefore be said that there is merit in the October 2015 Interpleader Application. In the above circumstances, there is no basis to extend time for the filing of Mr Leppard’s December 2015 Affidavit, either on the Court’s own motion or otherwise. As explained above, where there is no merit in an application time ought not to be extended: see [19] above.
Merit of the October 2015 Interpleader Application
As set out above in relation to Mr Leppard’s December 2015 Affidavit, and the question of extension of time to file that affidavit, the October 2015 Interpleader Application has no merit, even if the documents annexed to Mr Leppard’s December 2015 Affidavit were properly before the Court.
It follows from the foregoing that the claim by GSR Industries by way of Interpleader for relief in these proceedings ought to be dismissed. There will be an order accordingly.
Miscellaneous – adjournment
Insofar as Mr Leppard’s December 2015 Letter requests an adjournment of this matter: Mr Leppard’s December 2015 Affidavit, Annexure A, page 1, it is plain from what is said above that the factual basis for the adjournment is not made out. In those circumstances, even if there were a proper application for adjournment before the Court, it could not succeed on the basis put in Mr Leppard’s December 2015 Letter, and it is futile to consider the matter further.
Costs
As to costs, there should be no order as to the costs of Mr Blackman, who was self-represented, Mr Leppard who was self-represented, or GSR Industries who did not appear. There will be liberty to the Sheriff to apply for costs. In that regard, the Court notes that the underlying proceeding is a small claim under the Fair Work Act 2009 (Cth) (“FW Act”), and issues may arise as to the application or otherwise of s.570(2) of the FW Act to these proceedings.
Orders
The Court will, for the foregoing reasons, order that:
a)Mr Blackman’s Application in a Case be dismissed;
b)the claim by GSR Industries by way of Interpleader for relief in these proceedings be dismissed; and
c)there be no order as to costs:
i)of Mr Blackman’s Application in a Case;
ii)of the claim by GSR Industries by way of Interpleader for relief, save that there be liberty to the Sheriff to apply for costs within 30 days.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 16 February 2016
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