Culleton v Macquarie Leasing Pty Ltd
[2015] FCA 188
•9 March 2015
FEDERAL COURT OF AUSTRALIA
Culleton v Macquarie Leasing Pty Ltd [2015] FCA 188
Citation: Culleton v Macquarie Leasing Pty Ltd [2015] FCA 188 Appeal from: Macquarie Leasing Pty Ltd v Culleton [2014] FCCA 1714 Parties: RODNEY NORMAN CULLETON v MACQUARIE LEASING PTY LTD File number(s): NSD 1220 of 2014 Judge(s): GLEESON J Date of judgment: 9 March 2015 Catchwords: PRACTICE AND PROCEDURE – failure of appellant to comply with direction – failure of appellant to attend directions hearing – appeal dismissed Legislation: Federal Court of Australia Act 1976 (Cth), s 25(2B)(bb) Date of hearing: 9 March 2015 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 7 Counsel for the Appellant: The Appellant did not appear Counsel for the Respondent: Ms E Glover Solicitor for the Respondent: Douros Jackson Lawyers
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1220 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: RODNEY NORMAN CULLETON
AppellantAND: MACQUARIE LEASING PTY LTD
Respondent
JUDGE:
GLEESON J
DATE OF ORDER:
9 MARCH 2015
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed pursuant to s 25(2B)(bb) of the Federal Court of Australia Act 1976 (Cth).
2.The appellant pay the respondent’s costs of the appeal.
3.The hearing date of 17 March 2015 be vacated.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1220 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: RODNEY NORMAN CULLETON
AppellantAND: MACQUARIE LEASING PTY LTD
Respondent
JUDGE:
GLEESON J
DATE:
9 MARCH 2015
PLACE:
SYDNEY
REASONS FOR JUDGMENT
By email dated 3 March 2015 the solicitors for the respondent requested that this matter be relisted as a result of Mr Culleton’s failure to comply with directions for preparation of the appeal. The matter is currently listed for hearing of the appeal at 10.15 am on 17 March 2015.
On 10 December 2014, I made the following orders:
(1)On or before 13 February 2015, the appellant file and serve a folder containing all material upon which he seeks to rely in the application, including but not necessarily limited to:
(a)The judgment below;
(b)The orders below;
(c)Any transcript below;
(d)Any factual material to demonstrate any error in the court below; and
(e)Submissions.
This folder is to be indexed and paginated.
(2)On or before 13 February 2015, the appellant to file and serve any application to adduce further evidence on the appeal and any evidence on that application.
The email from the respondent’s solicitor dated 3 March 2015 stated that on 17 February 2015 Mr John Brown of McIntyres Lawyers, Norfolk Island had advised that he had ceased acting for Mr Culleton and that on 26 February 2015 Mr Brown advised that he expected that his client would file a Notice of Address for Service on 27 February 2015, failing which Mr Brown would file a Notice of Ceasing to Act.
This morning at 7.28 am my chambers received an email from Mr Brown, Mr Culleton’s former lawyer, which said relevantly that the appellant lived in Perth, that he had recently suffered a significant leg injury, that Mr Culleton sought to attend the directions hearing by telephone, and that Mr Culleton had not yet been able to afford to pay to obtain a transcript of the relevant Federal Circuit Court hearings or to afford to fund counsel’s assistance in finalising the folder of documents for the appeal. The email also asked whether it would be possible to adjourn today’s directions hearing until later this week and foreshadowed the possibility that Mr Culleton may need to seek an order vacating the 17 March 2015 hearing date.
In response to that email Mr Brown was notified that Mr Culleton could attend the directions hearing by telephone (provided that his contact details were supplied), and that it may be possible to change the time for the directions hearing if the respondent consented to that. In the event Mr Culleton’s telephone number was not provided to the Court and the directions hearing proceeded at 9.30 am this morning. Shortly before the directions hearing my Associate was informed by email from Mr Brown that Peter King of counsel would appear at the directions hearing. In his absence the matter was stood down to 9.45 am to enable counsel for the respondent, Ms Glover, to communicate with Mr King. At 9.45 am I was informed by Ms Glover from the Bar table that she had spoken with Mr King and that he did not have any instructions to attend this morning, although it was possible that he might receive instructions in the future.
Ms Glover sought an order that the appeal be dismissed. By section 25(2B)(bb) of the Federal Court of Australia Act 1976 (Cth) a single judge may make an order than an appeal to the Court be dismissed for:
(i)failure to comply with a direction of the Court; or
(ii)failure of the appellant to attend a hearing relating to the appeal.
In this case Mr Culleton has failed to comply with the directions of the Court to submit a folder of appeal papers and submissions. He has also failed to attend the directions hearing today. This directions hearing was scheduled in order to address his failure to comply with directions. In those circumstances, and particularly taking into account the fact that Mr Culleton is a bankrupt and therefore any order for costs cannot cure prejudice suffered by the respondent, because there is no reason to be confident that the appellant could pay a costs order, it seems to me appropriate that the appeal be dismissed and accordingly I order that the appeal be dismissed with costs. It follows that the hearing date of 17 March 2015 will be vacated.
I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gleeson. Associate:
Dated: 9 March 2015
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