Doukidis, E.g. v Consolidated Constructions Pty Ltd

[1988] FCA 157

IN THE FEDERAL COURT ) LIMITED DISTRIBUTION

OF AUSTRALIA	)
WESTERN AUSTRALIAN	1
DISTRICT REGISTRY	1
GENERAL DIVISION	1 NO. WAG 62 OF 1985

ON APPEAL from the Honourable Mr.

Justice Toohey

B E T W E E N :  EMMANUEL GEORGE DOUKIDIS

Appellant

and

CONSOLIDATED CONSTRUCTIONS PTY LTD

First Respondent

and

PETER MICHAEL MELSOM as Trustee

of the Estate of Emmanuel George

Doukidis

Second Respondent

JUDGE MAKING ORDER:  FRENCH J.

DATE OF ORDER:	29	MARCH	1988
WHERE	MADE	:	PERTH

THE COURT ORDERS THAT:

1. The matter be listed for further directions on l1 April

1988 at 2.15 pm

Order 36 of the Federal Court Rules.

Note: Settlement and entry of orders is dealt with in

IN THE FEDERAL COURT ) LIMITED DISTRIBUTION

OF AUSTRALIA )

WESTERN	AUSTRALIAN	1
DISTRICT	REGISTRY	1

GENERAL	DIVISION	)	NO. WAG 62 OF 1985
ON APPEAL from the Honourable Mr. Justice Toohey

B E T W E E N :  EMMANUEL GEORGE DOUKIDIS

Appellant

and

CONSOLIDATED CONSTRUCTIONS PTY LTD

First Respondent

and

PETER MICHAEL MELSOM as Trustee

of the Estate of Emmanuel George

Doukidis

Second Respondent

CORAM:  FRENCH J.
29 March 1988

REASONS FOR JUDGMENT
ON APPLICATION FOR ORDER

THAT APPEAL BE ALLOWED BY CONSENT

On 17 September 1984 the appellant entered into a

composition with his creditors under Part X of the Bankruptcy Act

1966. On the application of the first respondent, Toohey J. made

an order on 26 June 1985 setting aside the composition under

sub-s.239(1) of the Act. On 16 July 1985 the present appeal

against that decision was instituted. It came on for hearing

before a Full Court comprising Sweeney, Sheppard and Beaumont JJ

on 16 September 1985. At that time the appellant and the first

respondent had reached some accommodation and sought an order by

consent that the appeal be allowed, the order made by Toohey J. be

set aside and in lieu thereof it be ordered that the applicatlon

seeking to set aside the composition be dismissed. The trustee,

who appeared by counsel, neither consented to nor opposed the
orders sought by the appellant. He did however file an af€ldavit
in which he expressed some concern that the matters raised in the

appeal might be disposed of without argument. He also exhibited

to the affidavit a copy of a circular sent to creditors advising

of the history and the fact that the first respondent proposed to

consent to the order allowing the appeal.

When the appeal came before the Full Court the presiding

judge indicated that he would need to be persuaded that it was

appropriate for the Court to set aside the order made by Toohey J.

The appeal was adjourned to 10.15 am on 18 September and on that

day was adjourned by consent to a date to be fixed.

Nothing further happened until the matter was brought up

for mention before me on 7 December 1987. At that time the

parties again sought to obtain consent orders in the same form as

those sought from the Full Court in 1985. The second respondent

indicated, by counsel, that he would consent to the orders sought

provided he was paid his costs.

I reserved to consider whether I had jurisdiction to

handle the consent order or whether the matter should be referred

to the next sittings of the Full Court.

I am satisfied that to make a consent order disposinq of

appeal proceedings is to exercise the appellate ~urisdictlon of

the court. Sub-section 25(1) of	the	Federal Court	of	Australia
-	Act provides:-

"The appellate jurisdiction of the Court shall, sub~ect

to this section and to the provisions of any other Act,

be exercised by a Full Court."

There is no other relevant provision in this section

which would confer upon a single judge jurisdiction to make an

order of the kind which is now proposed.

In the circumstances it would seem that the only way in

which the appeal can be disposed of is by discontinuance on the part of the appellant pursuant to 0.52 r.19 or by an appropriate order of the Full Court. I can see no reason to suppose that the

Full Court would not want to be persuaded of the appropriateness

of a consent order setting aside the judgment appealed from. In the circumstances I think the best course is to bring the matter back for further directions. In the event that the appellant is

not prepared to pursue the matter, I will refer it to the Full

Court to consider whether of its own motion it should strike the appeal out for want of prosecution pursuant to 0.58 r.38(2).

I certify that the preceding

three (3) pages are a true copy

of the Reasons for Judgment	of
his Honour Justice French.

Counsel for the Applicant: Mr M.J.	Hawkins
Solicitors for the Applicant: McCusker	6 Harmer
Counsel for the First Respondent: Mr	J. Hammond

Solicitors for the First Respondent: Kott Gunning

Counsel for the Second Respondent: Miss T. Sweeney Solicitors for the Second Respondent: Robinson Cox

Date of Hearing:	7 December 1987
Date of Judgment:	30 March 1988