Maher v Commonwealth Bank of Australia

[2009] FCA 1589

FEDERAL COURT OF AUSTRALIA

Maher v Commonwealth Bank of Australia [2009] FCA 1589

DENNIS MAHER v COMMONWEALTH BANK OF AUSTRALIA (ACN 123 123 124), GREG FIRTH, REGISTRAR OF TITLES AND PAUL PATTISON

VID 695 of 2008

BROMBERG J
16 DECEMBER 2009
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 695 of 2008
GENERAL DIVISION

BETWEEN:

DENNIS MAHER
Applicant

AND:

COMMONWEALTH BANK OF AUSTRALIA (ACN 123 123 124)
First Respondent

GREG FIRTH
Second Respondent

REGISTRAR OF TITLES
Third Respondent

PAUL PATTISON
Fourth Respondent

JUDGE:	BROMBERG J
DATE OF ORDER:	16 DECEMBER 2009
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The applicant’s notices of motion, both dated 9 February 2009 are dismissed.

2.The applicant pay the costs of the first and second respondents in relation to the notices of motion, including any costs reserved.

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 695 of 2008
GENERAL DIVISION

BETWEEN:

DENNIS MAHER
Applicant

AND:

COMMONWEALTH BANK OF AUSTRALIA (ACN 123 123 124)
First Respondent

GREG FIRTH
Second Respondent

REGISTRAR OF TITLES
Third Respondent

PAUL PATTISON
Fourth Respondent

JUDGE:	BROMBERG J
DATE:	16 DECEMBER 2009
PLACE:	MELBOURNE

EX TEMPORE REASONS FOR JUDGMENT

1. Before the Court are two notices of motion both dated 9 February 2009 and filed by Mr Dennis Maher, the applicant in these proceedings and on the motions. 

2. On 15 August 2008, Phipps FM made a sequestration order against the estate of Mr Maher.  Mr Maher has appealed that order in this Court. 

3. At the instance of the first and second respondents by their notice of motion dated 22 October 2008, on 20 January 2009 Registrar Burns made two orders.  Firstly, an order requiring Mr Maher to provide security for costs in relation to Mr Maher’s appeal and staying the appeal until such security is provided or further order.  Secondly, Registrar Burns made an order granting leave to amend the notice of appearance filed on 15 September 2008 by the first respondent to include an appearance for the second respondent. 

4. By the first of his two notices of motion before me today, Mr Maher seeks a review of the Registrar’s decision and the setting aside of the order for security.  By the second notice of motion, Mr Maher seeks an order giving leave to the applicant to continue the proceeding “as if the appearance for the second respondent had not been entered”. 

5. When the two notices of motion were called on at 10:15 am this morning, there was no appearance from Mr Maher.  Ms Loughnan SC, with Mr Shepherd, appeared for the first and second respondents.  I indicated that the Court had received a letter dated 15 December 2009 by a facsimile received at or about 4.59 pm that day.  That facsimile purported to be from Mr Maher and in substance the letter indicated that Mr Maher enclosed an Outline and secondly, stated:

   I will not be in attendance this day the 16th due [to] medical/physical reasons and seek to have the matter adjourned.  Should it be required I will provide a medical certificate. 

6. I was advised by Ms Loughnan SC that her instructor had also received a copy of that letter this morning. 

7. At that time, I further indicated that I proposed to adjourn until 11.30 am to provide my associate an opportunity to try and contact Mr Maher and advise him that on the basis of the material before me, I was not inclined to grant an adjournment and that in the absence of an appearance, I was inclined to dismiss the notices of motion for want of appearance.  The Court then adjourned. 

8. During the adjournment, my associate made contact with Mr Maher and told him that the matter had been stood down until 11.30 am and that, on the basis of the material before me, I was not inclined to grant an adjournment, and that in the absence of an appearance, I was inclined to dismiss the notices of motion for want of appearance. My associate also tried to contact Mr D.E. Nelson, the solicitor on the record for Mr Maher.  The telephone number for Mr Nelson was rung, but there was no answer. 

9. On resumption, at approximately 11.37 am this morning, Mr Maher was called again.  Again, there was no appearance from Mr Maher.  I asked senior counsel for the first and second respondents what their position was and was advised that the first and second respondents support the refusal of the application for an adjournment and the dismissal of the notices of motion for want of appearance. 

10. I am prepared to treat the facsimile received by the Court late yesterday as an application by Mr Maher for an adjournment of the notices of motion before me today.  I decline that application.  The application is unsupported by any evidence and fails to provide any particularity as to either the nature of Mr Maher’s alleged medical reasons or as to the lateness in timing of the application for an adjournment.  In the circumstances at hand, it is appropriate that the application for an adjournment be dismissed. 

11. As to the notices of motion themselves, Mr Maher has failed to appear without sufficient cause or reason.  In the circumstances, it is appropriate that the notices of motion be dismissed for want of appearance and I will make orders accordingly. 

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg.

Associate:

Dated:       23 December 2009

Counsel for the Applicant:	There was no appearance on behalf of the applicant
Counsel for the First and Second Respondents:	Ms Loughnan SC with Mr Shepherd
Solicitor for the First and Second Respondents:	Commonwealth Bank of Australia Legal Services Victoria

Date of Hearing:	16 December 2009
Date of Judgment:	16 December 2009