Falamaki v Wollongong City Council
[2010] FCA 1353
FEDERAL COURT OF AUSTRALIA
Falamaki v Wollongong City Council [2010] FCA 1353
Citation: Falamaki v Wollongong City Council [2010] FCA 1353 Appeal from: Wollongong City Council v Falamaki [2009] FMCA 1204 Parties: MASOOD FALAMAKI v WOLLONGONG CITY COUNCIL File number: NSD 1498 of 2009 Judge: MOORE J Date of judgment: 2 December 2010 Legislation: Federal Court of Australia Act 1976 (Cth) Date of hearing: 2 December 2010 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 9 Counsel for the Appellant: Mr A Busby appeared for the hearing of the application to adjourn the hearing. Otherwise the appellant appeared in person. Counsel for the Respondent: Mr V Bedrossian
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1498 of 2009
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: MASOOD FALAMAKI
AppellantAND: WOLLONGONG CITY COUNCIL
Respondent
JUDGE:
MOORE J
DATE OF ORDER:
2 DECEMBER 2010
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appellant's notice of motion filed on 12 November 2010 to vary the orders made on 4 June 2010 be dismissed with costs.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1498 of 2009
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: MASOOD FALAMAKI
AppellantAND: WOLLONGONG CITY COUNCIL
Respondent
JUDGE:
MOORE J
DATE:
2 DECEMBER 2010
PLACE:
SYDNEY
REASONS FOR JUDGMENT
Ex tempore
In December 2009 a Federal Magistrate made a sequestration order against the estate of Dr Masood Falamaki. The petitioning creditor was Wollongong City Council. Those proceedings had been preceded by protracted litigation between Dr Falamaki and the Council concerning building works on a site in which Dr Falamaki had an interest. While the building works had, at a level of generalisation, been approved by the Council an issue arose about whether specific aspects of the works involving excavation of the site had been approved. The protracted litigation took place both in the Land and Environment Court as well as the Court of Appeal of New South Wales. Again, at a level of generalisation, Dr Falamaki failed to establish that he could proceed with the works or, putting it slightly differently, failed to establish the Council was not entitled to insist upon compliance with conditions attending the approval of the works.
On 13 December 2009 Dr Falamaki filed a notice of appeal against the judgment of the Federal Magistrate. The matter was allocated to my docket. Having regard to my understanding of the issues raised in the appeal, I was ultimately satisfied that it was appropriate to make an order under Order 80 with the result that pro bono legal assistance was provided to Dr Falamaki. Fairly shortly after this occurred, Dr Falamaki dismissed the pro bono legal representation preferring, instead, to advance a case based, in part, on the assistance provided by an individual who styled himself "a judge" of the United States of America who propounded a language theory which argued that orders earlier made against Dr Falamaki were invalid or of no legal effect.
The appeal was listed before me on a number of occasions in February, March, April and ultimately June 2010. It was tolerably clear by June 2010 that Dr Falamaki was not prepared to focus on what was required, namely the prosecution of the appeal. Extraneous issues including the corruption of judges and Council officials perpetually distracted him.
On 4 June 2010 I made orders dismissing an application by Dr Falamaki for an adjournment, dismissing the appeal for want of prosecution and ordering him to pay the Council's costs. I made an additional order that the order dismissing the appeal take effect at 4 p.m. on 16 July 2010 and I gave the parties liberty to apply by 16 July 2010.
The source of the power to dismiss an appeal for want of prosecution was, at the relevant time, probably twofold. The first was s 25(2B)(ba) of the Federal Court of Australia Act 1976 (Cth) and also Order 52 rule 38(1)(a) of the Federal Court Rules. Expressly under the rule and almost certainly impliedly under the Act, an appellant whose appeal is dismissed for want of prosecution can seek to have that order revoked "in special circumstances" to use the language of the rule. The purpose of the order of 4 June 2010 making the other orders take effect on 16 July 2010 was to expressly, by order, create an opportunity of the type contemplated in the rule for Dr Falamaki to have the order dismissing the appeal revoked. It created what I shall describe as a period of grace. A notice of motion was filed by Dr Falamaki on 16 July 2010 seeking to have the period of grace extended to 16 November 2010. The hearing of that notice of motion was adjourned twice in August 2010 and on 9 or perhaps 12 November 2010 a further notice of motion was filed by Dr Falamaki seeking to have the period of grace extended to March 2011. That notice of motion was fixed for hearing on 16 November 2010. On that day, as an indulgence to Dr Falamaki, I adjourned the hearing to today, 2 December 2010.
At the hearing today an application was made on behalf of Dr Falamaki to adjourn the hearing of his notice of motion. I dismissed that application for an adjournment.
In my opinion, the application to extend the period of grace should also be dismissed. Dr Falamaki remains distracted by issues concerning the alleged corruption of judicial officers, Council employees, and the alleged perjury of the deponents to affidavits filed by the Council. He remains primarily focused on and distracted by the circumstances surrounding the grant of the building approval, the steps taken by the Council to stop the building works and the subsequent litigation of these issues in the courts of New South Wales. To extend the period of grace will simply, in all probability, mean that such issues as might reasonably be raised in the appeal will never be addressed by Dr Falamaki and his focus will continue to be on the irrelevant issues of the type already discussed.
In dismissing his application to extend the period of grace I am intending to bring to an end the hearing by me of the appeal lodged by Dr Falamaki on 30 December 2009. That is not to say Dr Falamaki might not be able, at some later stage, to seek to have set aside the order I made on 4 June 2010 dismissing the appeal for want of prosecution. However the nature and the extent of the power that might then be exercised by the Court and whether it should be exercised is not for me to anticipate. What happens in the future will presumably depend on events that have occurred in the intervening period.
I conclude with two observations. The first is that one finding of fact that the Federal Magistrate thought was relevant in making the sequestration order (though its relevance is not obvious to me) concerned the question of whether Dr Falamaki had sought to pay (and had paid) the debt on which the Council's creditor's petition was based, before the petition was determined. On material I have seen, it is arguable that the finding of the Federal Magistrate that no such attempt was made or that it had been unsuccessful was wrong. The second observation is that at an earlier stage in these proceedings, I read all relevant judgements of the Land and Environment Court together with the judgment of the Court of Appeal. I intend to speak with considerable circumspection, but it is not obvious to me that Dr Falamaki has no claim against the Council arising from its consideration (and I imply nothing by using this word in relation to what the Council in fact did) of plans which revealed the extent to which Dr Falamaki proposed to excavate the site before the excavation took place. I am aware that there have been proceedings in the Supreme Court in which Dr Falamaki has sued the Council. However I know nothing of substance about the cause of action or the evidence sought to be relied upon. I do know that a trial had been fixed earlier this year but, I apprehend, those dates were vacated, at least in part, because of the proceedings in this Court and the fact that a sequestration order had been made against Dr Falamaki's estate.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore. Associate:
Dated: 2 December 2010
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