Falamaki v Wollongong City Council
[2009] FCA 1045
•16 SEPTEMBER 2009
FEDERAL COURT OF AUSTRALIA
Falamaki v Wollongong City Council [2009] FCA 1045
MASOOD FALAMAKI v WOLLONGONG CITY COUNCIL
NSD 814 of 2009
EDMONDS J
16 SEPTEMBER 2009
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 814 of 2009
BETWEEN: MASOOD FALAMAKI
ApplicantAND: WOLLONGONG CITY COUNCIL
Respondent
JUDGE:
EDMONDS J
DATE OF ORDER:
16 SEPTEMBER 2009
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The applicant’s notice of motion filed 10 September 2009 be dismissed.
2.The applicant’s appeal to this Court from the Orders of Federal Magistrate Driver dated 28 July 2009 be dismissed.
3.The applicant pay the respondent’s costs of the appeal and the notice of motion.
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 eSearch on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 814 of 2009
BETWEEN: MASOOD FALAMAKI
ApplicantAND: WOLLONGONG CITY COUNCIL
Respondent
JUDGE:
EDMONDS J
DATE:
16 SEPTEMBER 2009
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an appeal from orders of the Federal Magistrates Court (Driver FM) made 28 July 2009 dismissing the applicant’s application to set aside a Bankruptcy Notice dated 6 July 2009.
Effectively, there were two grounds of appeal albeit ranging over four paragraphs:
(1)That Driver FM has an obligation under s 14 of the Federal Magistrates Act 1999 (Cth) to deal with all complaints raised, and go behind any and all State judgments that interfere with that obligation, including costs orders and his failure to do so constitutes appellable error.
(2)A Federal Magistrate has no jurisdiction in contentious bankruptcy issues and can exercise no jurisdiction in contested matters because he or she cannot offer a jury trial under s 30(3) of the Bankruptcy Act 1966 (Cth).
Both grounds are ill-conceived and have no merit.
From a reading of the transcript of the hearing before Driver FM (his Honour published no reasons) only two matters were raised by the applicant as grounds for setting aside the Bankruptcy Notice:
(1)That paragraph 5(b) of the Notice, or more specifically the words:
‘if the Federal Magistrates Court does not extend or is not deemed to have extended the time for compliance (see paragraph 6 below)’
perplexes or misleads the debtor because there is nothing in clause 6 dealing with deemed extensions of time.
(2)That the Bankruptcy Notice was served twice, once by email and once by registered post, and on different dates and, in those circumstances, the applicant did not have a fixed starting date for the 21 days to run.
His Honour heard argument on both matters and ruled, correctly in my view, against the applicant on both. He therefore dismissed the application.
The applicant’s notice of appeal does not raise his Honour’s ruling on either of these matters as a ground of appeal.
For the foregoing reasons, the appeal must be dismissed with costs.
The applicant, by notice of motion filed 10 September 2009, moved the Court for various orders, but did not press or otherwise speak to them on the hearing of the appeal. The orders sought in paragraphs (1) – (5) of the notice are equally ill-conceived. Even if each of the orders there sought had been pressed, it is extremely unlikely, albeit for different reasons, that I would have acceded to the applicant’s argument on any of them. Be that as it may, in the absence of argument, the notice of motion must also be dismissed with costs.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds. Associate:
Dated: 16 September 2009
Counsel for the Applicant: The applicant appeared in person Counsel for the Respondent: Mr RI Goodridge Solicitor for the Respondent: Fisher Cartwright Berriman Pty Limited
Date of Hearing: 16 September 2009 Date of Judgment: 16 September 2009
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