Heard v CBFC Limited

[2008] FCA 1611

FEDERAL COURT OF AUSTRALIA

Heard v CBFC Limited [2008] FCA 1611

RUSSELL JOHN HEARD v CBFC LIMITED ACN 008 519 462

VID 655 of 2008

NORTH J
20 OCTOBER 2008
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 655 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	RUSSELL JOHN HEARD Appellant
AND:	CBFC LIMITED ACN 008 519 462 Respondent

JUDGE:	NORTH J
DATE OF ORDER:	20 OCTOBER 2008
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant is to pay the costs of the appeal, including the costs of the motion, notice of which was filed by the respondent on 25 September 2008.

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
VICTORIA DISTRICT REGISTRY	VID 655 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	RUSSELL JOHN HEARD Appellant
AND:	CBFC LIMITED ACN 008 519 462 Respondent

JUDGE:	NORTH J
DATE:	20 OCTOBER 2008
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. A motion, notice of which was filed by the respondent, CBFC Limited, on 25 September 2008 seeking that the appeal be dismissed as incompetent was returnable today.  I am satisfied that the appellant, Russell John Heard, was served on 13 October 2008 with the motion and supporting material on the basis of an affidavit sworn by Robert Leslie Jacobs on 16 October 2008.  

2. The second directions hearing in this appeal was listed also for today.  The appellant was also bound to appear before the Court at the previous directions hearing on 29 September 2008.  He did not appear on that occasion, but rather phoned the Court at 10.44am advising that he was unwell and would not be attending the Court.  The appellant stated to an officer of the Court that he was intending to fax a medical certificate to the Court and asked that it be passed on to the judge.  The appellant apologised for not being able to attend.  In the meantime, no such medical certificate has been received by the Court.

3. The appellant did not appear today and no explanation was received regarding the appellant’s absence.  

4. Section 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) provides:

   (2B) A single Judge or a Full Court may:
   …
             (bb) make an order that an appeal to the Court be dismissed for:
     (i) …
     (ii) failure of the appellant to attend a hearing relating to the appeal;

5. The appellant has failed to attend the hearing of the second directions and the motion. The appeal will be dismissed under s 25(2B)(bb)(ii) 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 North.

Associate:

Dated:        20 October 2008

Counsel for the Appellant:	The appellant did not appear
Counsel for the Respondent:	Ms Cipriano
Solicitor for the Respondent:	Gadens Lawyers

Date of Hearing:	20 October 2008
Date of Judgment:	20 October 2008