Evangelista v CPS Credit Union (SA) Ltd

[2005] FCA 345

FEDERAL COURT OF AUSTRALIA

Evangelista v CPS Credit Union (SA) Ltd [2005] FCA 345

PRACTICE AND PROCEDURE – application for extension of time – application for leave to appeal – whether decision of Federal Magistrate attended by sufficient doubt to warrant reconsideration – whether substantial injustice would result if leave were refused.

Bankruptcy Act 1966 (Cth), ss 120 and 121

Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 applied

JORDAN JOSHUA EVANGELISTA v CPS CREDIT UNION (SA) LTD

SAD 276 of 2004

LANDER J
22 MARCH 2005
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD276 OF 2004

BETWEEN:	JORDAN JOSHUA EVANGELISTA APPLICANT
AND:	CPS CREDIT UNION (SA) LTD RESPONDENT
JUDGE:	LANDER J
DATE OF ORDER:	22 MARCH 2005
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.The application for an extension of time within which to file and serve a notice of appeal is dismissed on the ground that the application is incompetent.

2.Insofar as that application could be treated as an application for leave to appeal, leave to appeal is refused.

3.The applicant to pay the respondent’s costs of the proceedings in this Court.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD276 OF 2004

BETWEEN:	JORDAN JOSHUA EVANGELISTA APPLICANT
AND:	CPS CREDIT UNION (SA) LTD RESPONDENT

JUDGE:	LANDER J
DATE:	22 MARCH 2005
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. On 21 December 2004 the applicant filed an application for an extension of time to file and serve a notice of appeal from a judgment of Lindsay FM given on 29 October 2004.  The application was accompanied by an affidavit and a draft notice of appeal.  In my opinion, for the reasons which follow, the application is misconceived because the judgment which is sought to be appealed from is an interlocutory judgment and the applicant not only needs leave to appeal from that judgment, but also an extension of time within which to seek that leave to appeal.

2. These proceedings were commenced by the applicant on 26 November 2003 and relate to an application by him to annul a sequestration order made on 24 June 2002.  During the relevant period the applicant was in prison in South Australia.  The applicant’s application was dismissed on 10 February 2004 for want of prosecution, but with liberty to the applicant to apply to reinstate the proceeding provided that such an application was brought within one month.  The applicant sought to reinstate the proceedings within that time.

3. On 23 March 2004 Mead FM set a timetable for the hearing of the original application and ordered that the trial of the application be heard on 19 May 2004.  The Federal Magistrate who was to hear the matter became unavailable, and the matter was adjourned until 28 June 2004.  In the meantime, the applicant was ordered to file and serve an affidavit within 21 days dealing, inter alia, with his solvency…