Irwin v Irwin

[2016] FCA 1565

FEDERAL COURT OF AUSTRALIA

Irwin v Irwin [2016] FCA 1565

Appeal from:

Irwin v Irwin [2016] FCCA 1767

File number:

SAD 202 of 2016

Judge:

CHARLESWORTH J

Date of judgment:

7 December 2016

Date of publication of reasons

22 December 2016

Catchwords:

PRACTICE AND PROCEDURE — case management principles — relevance and application of s 37M of the Federal Court of Australia Act 1976 (Cth) to the exercise of discretionary power to dismiss an appeal other than on its merits

PRACTICE AND PROCEDURE — dismissal of appeal for failure by appellant to attend at a hearing relating to the appeal — where appellant’s conduct evidenced a disruptive attitude —where appellant unwilling to discharge obligations under s 37N of the Federal Court of Australia Act 1976 (Cth) – risk of non-attendance on hearing of substantive appeal unacceptable

PRACTICE AND PROCEDURE — appropriate use of email communications between a party to proceedings and an associate of a presiding judge – orders prohibiting email communications with associate

Legislation:

Federal Court of Australia Act 1976 (Cth), ss 25(2B), 37M, 37N

Federal Court Rules 2011 (Cth), rr 9.61, 11.01, 36.01, Div 9.6

Date of hearing:

7 December 2016

Registry:

South Australia

Division:

General Division

National Practice Area:

Commercial and Corporations

Sub-area:

General and Personal Insolvency

Category:

Catchwords

Number of paragraphs:

64

Counsel for the Appellant:

The Appellant did not appear

Counsel for the Respondent:

Mr S Ower SC with Mr Selly

Solicitor for the Respondent:

Iles Selly Lawyers

ORDERS

SAD 202 of 2016

BETWEEN:

CAMPBELL CREAGHE IRWIN

Appellant

AND:

ANGUS WILLIAM IRWIN

Respondent

JUDGE:	CHARLESWORTH J
DATE OF ORDER:	7 DECEMBER 2016

THE COURT ORDERS THAT:

1.Pursuant to s 37P(3)(f) of the Federal Court of Australia Act 1976 (Cth) the requirements in r 36.74(2) of the Federal Court Rules 2011 (Cth) are waived in relation to the respondent’s application for an order that the appeal be dismissed.

2.The appeal is dismissed.

3.The appellant is to pay the respondent’s costs of and incidental to the appeal.

4.The appellant has leave to inspect, but not to copy, the transcript of today’s hearing in the South Australia District Registry of the Court.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

Charlesworth J:

INTRODUCTION

1. Section 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) (Act) confers power upon a single judge to make an order that an appeal to the Court be dismissed for failure of the appellant to attend a hearing relating to the appeal. On 7 December 2016, I dismissed this appeal in the exercise of that power. I delivered brief oral reasons with a view to publishing written reasons at a later time. These are my written reasons.

   SUMMARY OF REASONS

2. There were two hearings relating to this appeal at which the appellant either did not attend or attended only in part.  The first was a case management hearing on 4 October 2016 during which the appellant departed the Court abruptly at a…