Maddocks v Brown

[2000] FCA 296

FEDERAL COURT OF AUSTRALIA

Maddocks v Brown [2000] FCA 296

IN THE MATTER OF JOHN DAVID MADDOCKS
JOHN DAVID MADDOCKS v DAVID ALEXANDER BROWN (T/AS BROWN & PARTNERS

N 8387 OF 1999

EMMETT J
3 MARCH 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 8387 OF 1999

IN THE MATTER OF JOHN DAVID MADDOCKS

BETWEEN:	JOHN DAVID MADDOCKS Applicant
AND:	DAVID ALEXANDER BROWN T/AS BROWN & PARTNERS Respondent
JUDGE:	EMMETT J
DATE OF ORDER:	3 MARCH 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The notice of motion be struck out.

1.        The proceedings be dismissed.

2.        The applicant on the motion pay the respondent’s costs on the motion.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 8387 OF 1999

IN THE MATTER OF JOHN DAVID MADDOCKS

BETWEEN:	JOHN DAVID MADDOCKS Applicant
AND:	DAVID ALEXANDER BROWN T/AS BROWN & PARTNERS Respondent

JUDGE:	EMMETT J
DATE:	3 MARCH 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. These proceedings were commenced by notice of motion filed on 14 December 1999.  The notice of motion seeks the following:

   “1. A declaration that the actions of the Creditor herein were a continuing course of conduct which was a wilful abuse of process calculated to deceive the Court and procure the sequestration order in Contempt of Court by:

   (i)claiming in a taxation by Sweeney J. that a disbursement of $12,400 had been paid to the Debtor and thereby receiving $7250 of which no part was paid to the debtor

   (ii) procuring in the District Court on 6 June 1996 the dismissal of a Review on costs related to the $12,400 on [sic] by failing to inform the Applicant on the hearing and misleading the Court on the [sic] his absence.

   (iii)induced the Court to waive compliance with s 40(1)(g) by using 19.11.92 as the date of the final order when the order was made on 3.6.96 without notice and in the absence of the Debtor by Judge Tupman while the matter was still part-heard before Judge Mahoney.

   2. An order that the sequestration order dated 26 November 1996 be set aside and that the Creditor bring into Court the sum of $12,400 and interest thereon before seeking to purge the contempt.

   3. An order that the matter be referred the Commissioner of Police for consideration of a prosecution under Sec.178BB of the Crimes Act for receiving the sum of $7,250 by stating inter alia to Mr Justice Sweeney that $12,400 has been paid as a disbursement for counsel’s fees.

   4. An order that the Creditor be punished in respect of the contempt of court.

   5. An order that the Creditor pay the costs of the proceedings in Bankruptcy together with such orders as to [sic] the Court may seem [sic] fit.”

2. The matter is before me today because the moving party seeks leave of the Court to discontinue the proceedings.  The proceedings as presently constituted do not comply with the Federal Court Rules.  Substantive relief is sought by a document described as a Notice of Motion.  Order 4 Rule 1 provides that except as otherwise provided in the Rules all proceedings in the Court’s original jurisdiction shall be commenced by filing an application.  An application is to be substantially in the form of Form 5.

3. Under Order 22 Rule 2 of the Rules, a party making a claim for relief may, without the leave of the Court, discontinue a proceeding at any time before the directions hearing appointed in the application.  In addition, where after a directions hearing the proceeding continues on pleadings but the pleadings are not closed, a party may discontinue without the leave of the Court.  Otherwise discontinuance requires the leave of the Court.  There is no opposition to the grant of leave, although it is contended on behalf of the applicant debtor that leave is not required.  I consider that leave is required.  There is no suggestion that the matter is proceeding on pleadings and the first directions hearing has already passed.

4. However in view of the constitution of the proceedings, it seems to me that the appropriate course is to dismiss the proceedings as incompetent and that is the order which I propose to make.  I order that the notice of motion be struck out and that the proceedings be dismissed.  I order the applicant on the motion to pay the respondent’s costs of the motion.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:             15 March 2000

Solicitor for the Applicant:	The applicant appeared in person
Counsel for the Respondent:	Mr B Skinner
Solicitor for the Respondent	David Brown & Partners
Date of Hearing:	3 March 2000
Date of Judgment:	3 March 2000