Burnett v Browne

[2019] FCA 1233

FEDERAL COURT OF AUSTRALIA

Burnett v Browne [2019] FCA 1233

Appeal from:

Fitzgerald & Anor v Burnett [2018] FCCA 2866

File number:

TAD 49 of 2018

Judge:

O’CALLAGHAN J

Date of judgment:

8 August 2019

Catchwords:

PRACTICE AND PROCEDURE – application to dismiss appeal – deficient notice of appeal – no reasonable prospects of success

Legislation:

Federal Court of Australia Act 1976 (Cth)

Federal Court Rules 2011 (Cth)

Cases cited:

Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 234 FCR 549

SZJJC v Minister for Immigration & Citizenship [2008] FCA 614

Date of hearing:

24 July 2019

Registry:

Tasmania

Division:

General Division

National Practice Area:

Commercial and Corporations

Sub-area:

General and Personal Insolvency

Category:

Catchwords

Number of paragraphs:

51

Counsel for the Appellant:

The appellant appeared in person

Counsel for the Respondents:

Mr Browne appeared on behalf of the respondents

Table of Corrections
8 August 2019	In Order 2, “The appellant is to pay the costs of the respondents, to be agreed or assessed” be replaced by “The respondents’ costs on appeal be taxed and paid out of the estate of the appellant in accordance with s 109(1)(a) of the Bankruptcy Act 1966 (Cth)”.

ORDERS

TAD 49 of 2018

BETWEEN:

GAIL BURNETT

Appellant

AND:

ROLAND BROWNE AND ANTHONY FITZGERALD

Respondents

JUDGE:	O’CALLAGHAN J
DATE OF ORDER:	8 AUGUST 2019

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The respondents’ costs on appeal be taxed and paid out of the estate of the appellant in accordance with s 109(1)(a) of the Bankruptcy Act 1966 (Cth).

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

O’CALLAGHAN J:

1. On 24 July 2019 I heard an interlocutory application filed by the respondents seeking to dismiss an appeal against a decision of a judge of the Federal Circuit Court of Australia dismissing Ms Burnett’s application to review a decision and sequestration order made by a Registrar of that Court.  See Fitzgerald & Anor v Burnett [2018] FCCA 2866. Ms Burnett also applied to amend her notice of appeal.

2. The relevant history of the matter can be derived from the detailed reasons of the learned primary judge.

3. The matter has a lengthy history of litigation in the State courts of Tasmania.  The catalyst to the proceedings was an action by the petitioning creditor for unpaid professional fees for work done as the debtor’s solicitor in the Magistrates Court.  After a hearing spanning four days, Magistrate Mollard gave judgment against Ms Burnett on 20 November 2014 for $4,559.42.  See Fitzgerald and Browne v Burnett [2014] TASMC (20 November 2014). Ms Burnett’s counter claim was dismissed. Orders were later made that she pay the debtors’ costs on a solicitor and client basis.

4. Ms Burnett has never accepted the outcome in that proceeding.

5. On 15 December 2014, she filed an appeal in the Supreme Court of Tasmania against the orders of the Magistrate.  The appeal was listed for hearing on 30 July 2015,…