Jackson-Grose v FWO Nominees Pty Limited

[2002] FCA 958

FEDERAL COURT OF AUSTRALIA

Jackson‑Grose v FWO Nominees Pty Limited [2002] FCA 958

IN THE MATTER OF FWO NOMINEES PTY LIMITED

CATHERINE HELENE JACKSON‑GROSE v FWO NOMINEES PTY LIMITED

N 1623 OF 2001

BRANSON J
30 JULY 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1623 OF 2001

IN THE MATTER OF FWO NOMINEES PTY LIMITED

BETWEEN:	CATHERINE HELENE JACKSON‑GROSE APPLICANT
AND:	FWO NOMINEES PTY LIMITED RESPONDENT
JUDGE:	BRANSON J
DATE OF ORDER:	30 JULY 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for an extension of time to file and serve a notice of appeal in respect of the judgment of Magistrate Driver of 24 July 2001 be dismissed. 

2.The applicant pay the respondent’s costs on the basis that if the applicant becomes bankrupt on the current petition those costs are to be taxed and paid in accordance with the Bankruptcy Act 1966 (Cth).

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1623 OF 2001

IN THE MATTER OF FWO NOMINEES PTY LIMITED

BETWEEN:	CATHERINE HELENE JACKSON‑GROSE APPLICANT
AND:	FWO NOMINEES PTY LIMITED RESPONDENT

JUDGE:	BRANSON J
DATE:	30 JULY 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for an extension of time to file and serve a notice of appeal from a judgment of Federal Court Magistrate Driver (“Magistrate Driver”) given on 24 July 2001.  Order 52 Rule 15 of the Federal Court Rules required the notice of appeal to be filed within 21 days of the date of the judgment.  The application for an extension of time was not filed until 14 December 2001.

2. On 24 July 2001 Magistrate Driver dismissed the applicant’s application to set aside a bankruptcy notice.  However, as the bankruptcy notice was supported by a default judgment which the applicant had applied to set aside, Magistrate Driver considered that a creditor’s petition should not issue until the outcome of the application to set aside the judgment was known.  As the application to set aside the judgment had been allocated a hearing date, namely 27 September 2001, the respondent gave an undertaking to Magistrate Driver that it would not file a creditor’s petition on or before that date.

3. It appears that the application to set aside the default judgment failed.  The circumstances in which it failed are not disclosed by the evidence and other material before me.  The respondent filed a creditor’s petition in the Federal Magistrates Court on 22 October 2001. 

4. This application came before a Registrar of the Court on 2 July 2002 following a history of non‑appearance and non‑compliance with the orders of the Court by the applicant.  On that occasion the applicant’s husband, Mr David Jackson-Grose (“Mr Jackson‑Grose”), appeared before the Registrar by telephone link as the applicant’s agent.  The Registrar made the following orders:

   “1.Any further affidavits to be relied upon by the applicant to be filed and served on or before 12 July 2002.

   2.Any affidavit in response to be filed and served by 19 July 2002.

   3.        The matter be adjourned to 11.05 am on 30 July 2002.”

5. The Registrar’s notes reveal that she advised Mr Jackson‑Grose that the application for an extension of time would be dealt with by a judge on 30 July 2002.  No further affidavits were filed by the applicant.

6. On 29 July 2002 a fax was received by the Court headed “Urgent, Urgent, Urgent” by which Mr Jackson-Grose informed the Court that he no longer represented his wife in this matter and advised that she would be represented today by a solicitor who he named.  Earlier this morning a further facsimile transmission was received by the Court again marked “Urgent, Urgent, Urgent”.  It was apparently sent by the applicant herself.  The facsimile sent by the applicant advised the Court that the solicitor previously named as the person who would attend on her behalf would not be attending but that another named solicitor would attend.  At 10.48 am today it would appear that a further facsimile was received by the Court headed “Urgent, Urgent, Urgent” in which Mr Jackson-Grose advised the Court that the second named solicitor would not be attending today.

7. Neither the applicant, nor any person acting on her behalf, was in the courtroom when the matter was called for hearing at 11.05 am.  Telephone contact was made with Mr Jackson-Grose from the courtroom.  He advised the Court that the applicant was not present to speak on the telephone.  He further advised that he was not authorised to speak on behalf of the applicant.  In the light of this advice the telephone call was terminated.  No response was received when the applicant was thereafter called outside the courtroom.

8. The respondent has invited the Court to dismiss the application on the basis that it is not prosecuted.  I consider it more appropriate to deal with the application on its merits. 

9. An affidavit was initially filed in support of the application.  No further evidence has been filed despite the applicant having been given an opportunity to do so.  The affidavit before the Court is an affidavit sworn by Mr Jackson‑Grose on 14 December 2001.

10. Mr Jackson-Grose has deposed as follows:

    “I have been a chronic asthmatic since I was seven years old.  I have suffered bouts of serious bronchial asthma at various times this year.  The most recent bout of illness commenced at about the time of the hearing on 24 July 2001 of the Application to Set Aside the Bankruptcy Notice referred to ... .  Since that time I have been almost continuously sick with bronchial asthma and other chest complaints.  Annexed hereto and marked “A” is a copy of a medical certificate dated 29^th November, 2001 stating that I am still unfit for work or travel and am not supposed to do either until the I have been reviewed by a specialist on 18^th   December 2001. 

    It was physically impossible for me during the period normally allowed for lodging an Appeal against the decision of Magistrate Driver to properly review the events that took place during the hearing on 24^th  July 2001 with a view to seeing whether there were valid grounds for such an Appeal.  In the event by the time that it became clear that there were indeed valid grounds the period for lodging the Appeal had passed.”

11. I note that in matter number N1201 of 2001, Jackson‑Grose v Minter [2002] FCA 275, a notice of appeal was filed by Mr Jackson-Grose on behalf of himself and his wife in respect of another judgment of Magistrate Driver given on 24 July 2001. No explanation has been offered as to how Mr Jackson-Grose was able to attend to the filing of a notice of appeal in that matter when it was “physically impossible” for him to give consideration to the filing of a notice of appeal in this matter.

12. Although a draft notice of appeal, which identifies grounds of appeal in general terms, is attached to Mr Jackson‑Grose’s affidavit no particulars are given of any of the grounds.  Having reviewed the judgment of Magistrate Driver, the draft notice of appeal and the affidavit filed in support of this application, I am not satisfied that, were an extension of time to be granted to file and serve a notice of appeal in this matter, the ensuing appeal would have any prospect of success.

13. The respondent on the other hand would, in my view, be prejudiced by the granting of the extension of time sought.  More than a year has now passed since the date of the judgment against which the appeal is sought to be instituted.  There is nothing before the Court which suggests that the default judgment which supported the bankruptcy notice does not reflect a lawful debt.  The respondent has now acted in reliance on the judgment by filing a creditor’s petition seeking the making of a sequestration order against the estate of the applicant.  More than nine months has passed since the filing of that creditor’s petition.  Nothing has been placed before the Court in an endeavour to establish that the applicant is able to pay her lawful debts.

14. The appropriate course in the circumstances, having regard to both the rights of the respondent and the public interest, is that the petition proceed to a hearing and proceed promptly to a hearing.  If at the hearing of the creditor’s petition the applicant is able to satisfy the court that she is able to pay her debts or, that for some other sufficient cause a sequestration order ought not to be made, the court will have the power to dismiss the petition.

15. The application for an extension of time to file and serve a notice of appeal in respect of the judgment of Magistrate Driver of 24 July 2001 is dismissed. 

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson J.

Associate:

Dated:             30 July 2002

Counsel for the Applicant:	No appearance
Counsel for the Respondent:	Ms J Saltoon
Solicitor for the Respondent:	Turner Whelan, Solicitors
Date of Hearing:	30 July 2002
Date of Judgment:	30 July 2002