Fleet v RSPCA

[2005] FCA 770

FEDERAL COURT OF AUSTRALIA

Fleet v RSPCA [2005] FCA 770

ROBERT FLEET v ROYAL SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS NEW SOUTH WALES

NSD1686 OF 2004

BENNETT J
2 JUNE 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1686 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	ROBERT FLEET APPELLANT
AND:	ROYAL SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS NEW SOUTH WALES RESPONDENT
JUDGE:	BENNETT J
DATE OF ORDER:	2 JUNE 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1686 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	ROBERT FLEET APPELLANT
AND:	ROYAL SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS NEW SOUTH WALES RESPONDENT

JUDGE:	BENNETT J
DATE:	2 JUNE 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of Federal Magistrate Driver made on 26 October 2004 in relation to a disputed bankruptcy notice that was before him.  The appellant, Dr Fleet, sought to set aside the bankruptcy notice on two possible bases.  The first was the assertion that the judgment supporting the bankruptcy notice was obtained by fraud and was subject to further proceedings in the New South Wales Supreme Court seeking equitable relief.  The second was that the appellant had a claim against the respondent, which exceeded the judgment debt obtained against him.  The Federal Magistrate essentially concluded that there is no basis upon which he should set aside the bankruptcy notice.  The appellant appeals from that decision.

2. The matter came before me on 7 February 2005.  On that day, I made a series of orders in relation to the appeal, which included orders that the appellant file and serve either an affidavit or an amended notice of appeal particularising the grounds of his appeal on or before 4 April 2005 and that he file and serve written submission on or before 19 May 2005.  The time frame of those directions was to take into account the appellant’s request for time to prepare those particular documents.  The appellant has complied with neither of those directions. 

3. When the matter came before me this morning, the appellant did not appear, the matter was called outside the Court and there was no appearance for the appellant.  Ms Nash, solicitor for the respondent, informs me that she has not had contact with the appellant in relation to this matter.

4. The respondent has made an application that the appeal be dismissed for failure to comply with directions of the Court and/or failure of the appellant to attend Court today for the hearing of the appeal.

5. In the circumstances it seems to me appropriate that such an order should be made. Accordingly under s25(2B)(BB)(i) and (ii) of the Federal Court of Australia Act 1976 (Cth) I order that the appeal be dismissed with costs.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Associate:

Dated:             2 June 2005

Counsel for the Applicant:	No appearance
Solicitor for the Applicant:	No appearance
Counsel for the Respondent:	Ms S. Nash
Solicitor for the Respondent:	Sally Nash & Co
Date of Hearing:	2 June 2005
Date of Judgment:	2 June 2005