Diener v Volkswagen Financial Services Australia Pty Ltd
[2023] FCA 371
•14 April 2023
FEDERAL COURT OF AUSTRALIA
Diener v Volkswagen Financial Services Australia Pty Ltd [2023] FCA 371
Appeal from: FCFCOA orders made by Judge Brown on 5 October 2022 File number(s): SAD 168 of 2022 Judgment of: O'SULLIVAN J Date of judgment: 14 April 2023 Date of publication of reasons: 21 April 2023 Catchwords: APPEAL – where appellant did not appear at hearing of the appeal – where respondent had filed a notice of competency – where evidence of service of originating process was before primary judge – where no error demonstrated by primary judge – appeal dismissed Legislation: National Consumer Credit Protection Act 2009 (Cth), Schedule 1, National Credit Code Division: General Division Registry: South Australia National Practice Area: Commercial and Corporations Sub-area: Regulator and Consumer Protection Number of paragraphs: 11 Date of hearing: 12 April 2023 Counsel for the Appellant: There being no appearance Solicitor for the Respondent: Mr S Brand for Wallmans Lawyers ORDERS
SAD 168 of 2022 BETWEEN: HAYLEY MARIE DIENER
Appellant
AND: VOLKSWAGEN FINANCIAL SERVICES AUSTRALIA PTY LIMITED ACN 097 071 460
Respondent
ORDER MADE BY:
O'SULLIVAN J
DATE OF ORDER:
14 APRIL 2023
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant is to pay the respondent’s costs of and incidental to the appeal on a lump sum basis with such lump sum to be fixed by a Registrar.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
O’SULLIVAN J:
The sole issue on this appeal from the Federal Circuit and Family Court of Australia concerns the question of service of the originating process.
The originating process was called on before the primary judge on 5 October 2022. The appellant did not appear before the primary judge on that occasion.
That day, the primary judge made orders pursuant to ss 100 and 101 of the National Credit Code, Schedule 1 to the National Consumer Credit Protection Act 2009 (Cth):
(a)For the applicant or any party in possession of a white 2018 Volkswagen Golf motor vehicle (Collateral) to deliver, surrender and/or provide the location of the Collateral to the respondent and/or its agent; and
(b)Permitting the respondent and/or its agent to take reasonable steps in order to take possession of the Collateral whether from an identified property or any other premises in Australia which the Collateral is reasonably believed to be located.
The appellant filed her notice of appeal on 2 November 2022. The appellant had also served the respondent with an unsealed notice of appeal dated 18 October 2022. The document is dated prior to the filed notice of appeal but not having been filed, I do not consider further the unsealed notice of appeal.
After eventually being served with the notice of appeal, the respondent filed a notice of objection to competency of the appeal on the basis it did not disclose a ground upon which the appeal could succeed.
The notice of objection to competency in the appeal was heard at the same time as the appeal.
In accordance with the Court’s orders made on 28 February 2023, an index to the appeal book was filed by the respondent’s solicitors on 22 March 2023. In oral submissions to the Court, the respondent’s solicitors informed the Court that they had approached the appellant on several occasions to invite her to provide any documents she wished to be included in the appeal book. The appellant provided some documents, which were included in the appeal book. The respondent’s solicitors made further attempts to contact the appellant to determine if there were any further documents which the appellant wished to be included in the appeal book. The respondent’s solicitors received no response.
In the absence of a reply from the appellant, the respondent’s solicitors assumed that the appellant consented to the filing of the appeal book and subsequently filed the compiled appeal book on 30 March 2023.
This matter was called on today, however the appellant did not appear.
On a consideration of the material in the appeal book, and the oral submissions of the respondent, it is apparent that before the primary judge, there was evidence of service of the originating process on three occasions.
In circumstances where:
(a)the appellant did not appear; and
(b)I am satisfied on the material before the Court and the oral submissions of the respondent that there is no error demonstrated on the part of the primary judge,
the appeal is dismissed.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Sullivan. Associate:
Dated: 21 April 2023
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