Irving v Smith
[2009] FCA 711
•29 June 2009
FEDERAL COURT OF AUSTRALIA
Irving v Smith [2009] FCA 711
PRACTICE AND PROCEDURE – whether appeal should be dismissed for want of prosecution – whether service on appellant of respondent’s motion properly effected
Federal Court Rules O 7 r 4, O 52 r 2, O 52 r 38
MARY GAYWIN IRVING v MURRAY SMITH
VID 832 of 2008
NORTH J
29 JUNE 2009
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VID 832 of 2008
BETWEEN: MARY GAYWIN IRVING
Appellant
AND: MURRAY SMITH
Respondent
JUDGE:
NORTH J
DATE OF ORDER:
29 JUNE 2009
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1. The appeal be dismissed for want of prosecution pursuant to O 52 r 38(1)(a) of the Federal Court Rules.
2. The appellant pay the respondent’s costs of the appeal.
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 832 of 2008
BETWEEN: MARY GAYWIN IRVING
Appellant
AND: MURRAY SMITH
Respondent
JUDGE:
NORTH J
DATE:
30 JUNE 2009
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
Before the Court is a motion, notice of which was filed by the respondent on 18 March 2009. It seeks an order that pursuant to O 52 r 38(1)(a) of the Federal Court Rules that the appeal be dismissed for want of prosecution.
SERVICE OF THE MOTION
The notice of appeal was filed on 3 October 2008. On 27 November 2008 Mr Mapleston, who previously acted as solicitor for the appellant, ceased to act. In the notice of withdrawal filed in the Court on 4 December 2008 Mr Mapleston indicated that the appellant’s last known address for service was care of Longreach Australia Pty Ltd, Level 6, 409 St Kilda Road, Melbourne.
The motion currently before the Court was served on the appellant at that address on 15 June 2009. An application of this type is required to be served in the manner prescribed in O 7 r 4 (see O 52 r 2(b)(ii)). Order 7 rule 4(1)(a) provides that:
(1)Where personal service of a document is not required, the document may be served–
(a) by leaving a copy of the document at the proper address of the person to be served between the hours of nine in the morning and five in the afternoon on any day in which the Registry in that State or Territory is open;
Order 7 rule 4(2) provides that:
… the proper address of a person shall be the address for service of that person in the proceeding but if, at the time when the copy is left… the person has no address for service in the proceeding, the person’s usual or last known place of business or of abode shall be the person’s proper address.
In this case the appellant has, since the withdrawal of Mr Mapleston, no address for service and hence the proper address for her under O 7 r 4(2) includes her last known place of business, namely Level 6, 409 St Kilda Road, Melbourne. As service was effected at 2.20 pm on a Monday, the requirements of O 7 r 4 have been met. Alternatively, that address might be viewed as the appellant’s last known address for service, in which case the terms of O 7 r 4(2) would similarly apply. I am therefore satisfied that service of the motion has been properly effected. The evidence for that conclusion is the affidavit of service of Martin Telley sworn 19 June 2009.
WANT OF PROSECUTION
Order 52 rule 38(1)(a) provides that an appeal may be dismissed for want of prosecution where the appellant has not, inter alia, prosecuted the appeal with due diligence.
Since the appeal was instituted a number of steps significant to this application were taken. On 28 October 2008 the callover hearing was adjourned by Black CJ at the request of the appellant. Then, on 27 November 2008 Mr Mapleston ceased to act as solicitor for the appellant. On 3 December 2008, in light of Mr Mapleston ceasing to act, the Court adjourned a directions hearing to settle the appeal papers. Then, on 5 December 2008 the Court wrote to the appellant requesting information about the general status of the appeal. The solicitors for the respondent have not received a copy of any response to this letter from the appellant. On 3 February 2009 the appellant failed to appear at the callover hearing before Ryan J. Thus, apart from filing and serving the notice of appeal on 3 October 2008, the appellant has taken no substantive steps to prosecute the appeal.
In these circumstances it is appropriate to order that the appeal be dismissed for want of prosecution pursuant to O 52 r 38(1)(a).
I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.
Associate:
Dated: 1 July 2009
Solicitor for the Appellant: The appellant did not appear Solicitor for the Respondent: Mr P Siva of Clayton Utz
Date of Hearing: 29 June 2009 Date of Judgment: 29 June 2009
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