Boylan, in the matter of Boylan v Farthing

[2000] FCA 1797

FEDERAL COURT OF AUSTRALIA

Boylan, in the matter of Boylan v Farthing [2000] FCA 1797

IN THE MATTER OF FRED BOYLAN
FRED BOYLAN v STEPHEN FARTHING AND ALEGNA PTY LIMITED

S 58 OF 2000

JUDGES:      BEAUMONT, HEEREY & LEHANE JJ
DATE:           1 DECEMBER 2000
PLACE:         ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 58 OF 2000

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

IN THE MATTER OF FRED BOYLAN

BETWEEN:	FRED BOYLAN APPELLANT
AND:	STEPHEN FARTHING FIRST RESPONDENT
ALEGNA PTY LIMITED SECOND RESPONDENT
JUDGES:	BEAUMONT, HEEREY & LEHANE JJ
DATE OF ORDER:	1 DECEMBER 2000
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.There be no order for costs.

3.The Court notes the undertaking given to the Court on behalf of the respondents that they will not take any step to recover the costs ordered by Finn J on 9 June 2000 until further order of a single Judge of the Court.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 58 OF 2000

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

IN THE MATTER OF FRED BOYLAN

BETWEEN:	FRED BOYLAN APPELLANT
AND:	STEPHEN FARTHING FIRST RESPONDENT
ALEGNA PTY LIMITED SECOND RESPONDENT

JUDGES:	BEAUMONT, HEEREY & LEHANE JJ
DATE:	1 DECEMBER 2000
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

THE COURT:

1. This is an appeal from a judgment of Finn J given on 9 June 2000 in which the appellant (who is a self-represented litigant, both before Finn J and ourselves) made an application in the bankruptcy jurisdiction of the Court which, in form, sought to extend the time within which to comply with a bankruptcy notice until (a) his application for special leave to appeal to the High Court against the judgment founding the notice had been prosecuted and the matter finalised; or (b) pending the outcome of the appellant’s alleged counterclaim against the respondents, Stephen Farthing and Alegna Pty Limited.

2. The bankruptcy notice was served on 5 January 2000 and whilst the application before Finn J was filed on 21 January 2000, that is, within the time fixed for compliance, no application, his Honour held, had been made within that time to set aside the bankruptcy notice.  His Honour noted in that connection that, accordingly, in his view, he had no power simply to extend time for the purposes of prosecuting or satisfying this Court of a counter-claim.

3. For the reasons Finn J then gave, his Honour held that the challenge to the bankruptcy notice then propounded by Mr Boylan should be dismissed.  His Honour went on hold, for the reasons he then gave, that the application for extension of time ought also to be refused.  Accordingly, Finn J ordered that the application be dismissed with costs.

4. The subsequent history of the matter should, however, be mentioned.  For the reasons he then gave, on 14 November 2000 Raphael FM dismissed the petition in the matter on a ground not argued before Finn J, that is to say, that the bankruptcy notice was invalid because the creditor was not, at the relevant time (the time for compliance with the notice) able to be found at the address stated.  The order made by the learned Magistrate was that the petition be dismissed and nothing was said in the reasons on the question of costs.  However, we were informed by Mr Miller, who appears for the respondent before us, that at the time an application was made to the learned Magistrate for costs, but it appears that that application was refused on the ground that the appellant was self‑represented.

5. It is clear, therefore, that the subject matter dealt with by Finn J is, for all purposes, quite moot and academic and has been overcome by the events mentioned.  That means that there is no purpose and no basis upon which the appeal can be prosecuted.  We therefore, without at all addressing the merits of the appeal, a matter that does not arise for our consideration, propose to order that the appeal be dismissed.

6. However, there remains the question of Finn J’s order for costs.  In this regard Mr Boylan has urged that we should set that order aside, essentially on the basis that Finn J’s approach to the matter, for the several reasons indicated by Mr Boylan, was not justified.  Although we have had the benefit of some submissions in the matter, it does not appear to us that any obvious ground for interference with Finn J’s reasoning or decision has become apparent today; and given the moot and academic nature of the proceeding, it is not appropriate that we say anything further about it.

7. However, in the course of argument Mr Miller, on behalf of his client, has foreshadowed that further bankruptcy proceedings will be instituted in which (on the assumption that they are instituted), Mr Boylan will have an opportunity to ventilate any cross-claim that he wishes to propound.  In those circumstances Mr Miller proffered on behalf of his client, and the Court has accepted, an undertaking to the Court that the respondents will not take any step to recover the costs ordered by Finn J on 9 June 2000 until further order of a single Judge of the Court.  That undertaking having been given, it seems to us that it is not appropriate that this Court further consider Mr Boylan’s submission that Finn J’s order for costs should be set aside.

8. That leaves the question of costs of the appeal itself.  In the circumstances mentioned, in our opinion it is not appropriate that the Court express any view on the merits of the appeal itself as a matter of substance; that being so, in our view, there should be no order for the costs of the appeal.  The order that we make, therefore, is that the appeal be dismissed, but that there be no order for costs.  The Court notes the undertaking given to the Court on behalf of the respondents previously mentioned.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated:  December 2000

Counsel for the Appellant:	The Appellant appeared in person
Counsel for the Respondents:	Mr A Miller
Date of Hearing:	1 December 2000
Date of Judgment:	1 December 2000