Jessop v Westpac Banking Corporation

FEDERAL COURT OF AUSTRALIA

Jessop v Westpac Banking Corp [1999] FCA 1646

PRACTICE AND PROCEDURE – refusal by judge to accept an application for filing – whether cause for action – whether interlocutory decision

MICHAEL JESSOP v WESTPAC BANKING CORPORATION
Q 222 of 1999

SPENDER, EMMETT & DOWSETT JJ
17 NOVEMBER 1999
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 222 OF 1999

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	MICHAEL JESSOP Appellant
AND:	WESTPAC BANKING CORPORATION Respondent
JUDGES:	SPENDER, EMMETT & DOWSETT JJ
DATE OF ORDER:	17 NOVEMBER 1999
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.        The appeal be dismissed with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 222 OF 1999

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	MICHAEL JESSOP Appellant
AND:	WESTPAC BANKING CORPORATION Respondent

JUDGES:	SPENDER, EMMETT & DOWSETT JJ
DATE:	17 NOVEMBER 1999

REASONS FOR JUDGMENT

DOWSETT J: 

1. On or about 12 July this year, the appellant sought to lodge an application and supporting affidavit in the registry.  The Registrar referred the matter to a Judge of the Court pursuant to Order 46 Rule 7A, which provides:

   If a document presented to a registry in any proceeding, including any document which is, or will, if issued, become an originating document, appears to a Registrar on its face to be an abuse of the process of the Court, or to be frivolous or vexatious, the Registrar may refuse to accept or issue it, or may seek the direction of a Judge who may direct him –
   (a)      to accept or issue it; or
   (b)      to refuse to accept or issue it; or

   (c)to refuse to accept or issue it without the leave of a Judge first had and obtained.

2. Drummond J directed the Registrar not to accept the application.  Presumably, the affidavit was also rejected.  From this decision, the appellant has purported to appeal as of right.  Assuming that the exercise of power by Drummond J was capable of being the subject of appeal, it seems probable that the decision was interlocutory and that leave would therefore be necessary.  Whether this is so or not, I am of the view that his Honour's decision was correct.

3. The application purported to be pursuant to the Bankruptcy Act 1966 (Cth), with specific reference to par 40(1)(g). It is quite clear that the matter has no relationship whatsoever to any possible proceedings in bankruptcy.

4. Paragraph 1 of the application recites:

   The action currently being taken by the respondents against the applicant lacks any proper foundation in law since the requirements of the provision cited have not been met.

5. The reference to “the provision cited” is apparently to the Bankruptcy Act.  The argument appears to be, as the appellant revealed in argument, that he is being treated like a bankrupt, although he is not…