Dixon v Bendigo and Adelaide Bank
[2015] FCA 737
•8 July 2015
FEDERAL COURT OF AUSTRALIA
Dixon v Bendigo and Adelaide Bank [2015] FCA 737
Citation: Dixon v Bendigo and Adelaide Bank [2015] FCA 737 Appeal from: Application for extension of time: Dixon v Bendigo and Adelaide Bank [2015] FCCA 1785 Parties: THOMAS INGHAM DIXON v BENDIGO AND ADELAIDE BANK File number: SAD 172 of 2015 Judge: RANGIAH J Date of judgment: 8 July 2015 Catchwords: PRACTICE AND PROCEDURE – application for extension of time to seek leave to appeal – Federal Circuit Court refused to transfer proceeding interstate – where applicant subject to visual, auditory and psychological impairments – where cross-examination required – where video or telephone link unsuitable – failure to consider relevant matters – application granted and appeal allowed Legislation: Federal Circuit Court Rules 2001 (Cth) rr 8.01 and 8.01(2) Date of hearing: 8 July 2015 Place: Heard in Brisbane via video link to Adelaide Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 10 Counsel for the Applicant: The applicant appeared in person Counsel for the Respondent: Mr B Roberts SC Solicitor for the Respondent: Scott Lawyers
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
SAD 172 of 2015
BETWEEN: THOMAS INGHAM DIXON
ApplicantAND: BENDIGO AND ADELAIDE BANK
Respondent
JUDGE:
RANGIAH J
DATE OF ORDER:
8 JULY 2015
WHERE MADE:
HEARD IN BRISBANE VIA VIDEO LINK TO ADELAIDE
THE COURT ORDERS THAT:
1.The applicant be granted an extension of time until 11 June 2015 to seek leave to appeal.
2.The applicant be granted leave to appeal.
3.The appeal be allowed.
4.The orders of the Federal Circuit Court of Australia in proceeding ADG23/2015 made on 20 May 2015 be set aside.
5.Proceeding ADG23/2015 be transferred from the Adelaide Registry to the Brisbane Registry of the Federal Circuit Court of Australia.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
SAD 172 of 2015
BETWEEN: THOMAS INGHAM DIXON
ApplicantAND: BENDIGO AND ADELAIDE BANK
Respondent
JUDGE:
RANGIAH J
DATE:
8 JULY 2015
PLACE:
HEARD IN BRISBANE VIA VIDEO LINK TO ADELAIDE
REASONS FOR JUDGMENT
This is an application for an extension of time to seek leave to appeal against a judgment of the Federal Circuit Court of Australia given on 20 May 2015.
By that judgment, the primary judge refused the applicant’s application for review of a decision of a registrar to refuse to transfer the proceedings from the Adelaide Registry to the Brisbane Registry of the Federal Circuit Court. His Honour also fixed the place for the hearing as Sydney, while giving the applicant permission to appear by telephone or video link from Brisbane and the respondent permission to appear by video link from Adelaide. Neither party had applied for an order that the hearing take place in Sydney.
The applicant resides in Brisbane. The respondent’s offices are based in Adelaide. The applicant is a 66 year old aged pensioner. He has significant difficulties with his eyesight, including difficulty in tolerating glare from artificial light, and difficulties with his hearing. He has Asperger’s syndrome and suffers from depression. There was medical evidence before the primary judge suggesting that he would be at a disadvantage if he were to appear by telephone or video link at the hearing rather than in person.
The applicant indicated to the primary judge that he intended to cross-examine a process-server who deposed that he had left the bankruptcy notice in a sealed envelope at the applicant’s premises. The applicant denies that he had received the bankruptcy notice and denies that it had been left at his premises. Plainly, cross-examination would be more difficult if it were to take place over the telephone or by video link.
The primary judge took a very firm view about the merits of the applicant’s defence to the application for a sequestration order. Apart from the question of service, the applicant had indicated that he intended to commence proceedings in the District Court of Queensland alleging that the respondent, as mortgagee, had sold his property at an undervalue. The applicant produced evidence that at one stage the respondent had rejected an offer for the property of $1.5 million, and later sold the property by private tender for $1.2 million. There was other evidence which suggests that the true value of the property may be higher than $1.5 million. The primary judge in the course of the hearing stated “your offsetting claim appears hopeless”, and “there is little merit in the opposition”. It is not readily apparent why his Honour took that view.
His Honour gave short reasons for judgment, as follows:
1.The applicant filed an application for review of a decision of the Registrar of the Court refusing to transfer the matter to Brisbane. The application was supported by an affidavit by Mr Dixon, the respondent to a creditor’s petition, together with medical evidence and assertions in relation to the risk of delay.
2.The creditor’s petition is one in which there has been filed an affidavit in support of opposition alleging that the property was sold by the bank at an undervalue, in breach of a provision of the Property Law Act 1974 (Qld) s.85.
3.The affidavit currently falls a long way short of identifying any proper basis upon which there could be said there was a breach of duty by the mortgagee. The creditor clearly has a significant amount outstanding. The applicant had the benefit of having orders made by the Registrar for a timetable for the filing of evidence. I propose to let that timetable remain in place and to have the matter brought back before the Court to be heard by video link at Sydney from Adelaide. Mr Dixon can appear by video link from Brisbane or can appear by telephone. The application for a review of the decision of the Registrar is dismissed.
Pursuant to r 20.03 of the Federal Circuit Rules 2001 (Cth) (“the Rules”), the review of the registrar’s decision was required to proceed by way of a hearing de novo. Rule 8.01 provides:
(1)A party who files an application or response in a proceeding may apply to have the proceeding heard in another registry of the Court.
(2) In considering an application, the Court must have regard to:
(a) the convenience of the parties; and
(b) the limiting of expense and the cost of the proceeding; and
(c) whether the matter has been listed for final hearing; and
(d) any other relevant matter.
The primary judge’s reasons suggest that the only matter his Honour took into account was his view that there was a lack of merit in the proposed defence. The reasons do not identify the applicant’s disabilities or the difficulty that he would face in cross-examining a witness over the telephone or by video link as considerations that his Honour took into account. These were relevant matters, which his Honour was required to have regard to pursuant to r 8.01(2) of the Rules.
In my opinion, his Honour erred by failing to have regard to relevant matters. It is clearly appropriate that the proceeding be transferred to the Brisbane Registry of the Federal Circuit Court. Apart from the matters I have already mentioned, the matter has a very substantial connection with Brisbane. The only connection with Adelaide seems to be that the respondent’s offices are there. The matter has no connection with Sydney at all apart from that being the location of the primary judge.
In these circumstances, I will make orders extending the time to apply for leave to appeal, granting leave to appeal, allowing the appeal, setting aside the orders made by the primary judge and transferring the proceeding to the Brisbane registry of the Federal Circuit Court.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah. Associate:
Dated: 23 July 2015
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