Menzies v Paccar Financial Pty Ltd

[2010] FCA 1275

FEDERAL COURT OF AUSTRALIA

Menzies v Paccar Financial Pty Ltd [2010] FCA 1275

Citation:		Menzies v Paccar Financial Pty Ltd [2010] FCA 1275
Appeal from:		BP Australia Pty Ltd v Menzies [2010] FMCA 375
Parties:		IAN DAVID MENZIES  and COLLEEN ANNE MENZIES  v PACCAR FINANCIAL PTY LTD (ACN 005 592 049)
File number:		VID 495 of 2010
Judge:		BROMBERG J
Date of judgment:		20 October 2010
Date of hearing:	20 October 2010
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	9
Counsel for the Appellants:	Appellants appeared in person via telephone
Counsel for the Respondent:	Mr T Davies
Solicitor for the Respondent:	Hopkins Lawyers

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 495 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

IAN DAVID MENZIES
First Appellant

COLLEEN ANNE MENZIES
Second Appellant

AND:

PACCAR FINANCIAL PTY LTD (ACN 005 592 049)
Respondent

JUDGE:	BROMBERG J
DATE OF ORDER:	20 OCTOBER 2010
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The hearing of the appeal currently listed for 18 November 2010 be vacated.

2.The appeal be listed for hearing on a date to be fixed in December 2010.

3.        Costs be 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 Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 495 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

IAN DAVID MENZIES
First Appellant

COLLEEN ANNE MENZIES
Second Appellant

AND:

PACCAR FINANCIAL PTY LTD (ACN 005 592 049)
Respondent

JUDGE:	BROMBERG J
DATE:	20 OCTOBER 2010
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. On 17 June 2010, a sequestration order was made against the estate of Mr Ian and Mrs Colleen Menzies, the first and second appellants.  Mr and Mrs Menzies have instituted this appeal.  A stay of the sequestration order was granted by Ryan J, and the appellants’ appeal is listed for hearing on 18 November 2010. 

2. By a notice of motion dated 8 October 2010, Mr and Mrs Menzies seek an order that the date for hearing of the appeal be vacated, and that the appeal be listed for directions on 18 November 2010.  The notice of motion also sought a variation to undertakings given to the Court at an earlier time, but that matter was not pressed at the hearing of the notice of motion, and I need not deal with it further. 

3. In relation to the bankruptcy and related proceedings, Mr and Mrs Menzies have been represented by their solicitor, Mr Hall. 

4. The notice of motion is supported by an affidavit of Mrs Menzies, which sets out relevant matters including the basis for the appellants’ application for the hearing date to be vacated.  Shortly put, the position of Mr and Mrs Menzies is that Mr Hall will be unavailable to assist them and represent them as their solicitor in relation to an appeal, if the appeal were heard on the date for which it is listed.

5. The reason for Mr Hall’s unavailability seems to be that Mr Hall regards himself as currently having a conflict of interest.  The nature of the conflict has to do with the fact that Mr Hall has been sued personally in relation to contempt proceedings brought by Mr and Mrs Menzies in a matter related to the stay order granted by Ryan J.  That related application is currently due to be dealt with by Tracey J on 15 November 2010.  It is not known at the moment, and it cannot be known, when that matter may be resolved, either at first instance or on appeal.  It is therefore not known when Mr Hall might become available in the future. 

6. The application for vacation of the hearing is resisted on a number of bases, none of which appear to me to show significant and immediate potential prejudice to the respondents.  I am, however, minded to take into account the need for the appeal to be dealt with expeditiously, and the fact that a significant delay in the administration of the estate may cause prejudice.  

7. There is no principle of law to the effect that in a civil proceeding a party is entitled to legal representation.  Parties are often desirous of having legal representatives of their choice appear for them and represent them.  I can well understand why that is so, but it is not uncommon for parties to be denied their representatives of choice because of the unavailability of those representatives, or for other reasons.  I am mindful, however, that if Mr and Mrs Menzies now need to find new legal representatives to act on their behalf, they will need some time in which both to identify those representatives and to allow them to come up to speed with the matters that need to be dealt with on the appeal.

8. I propose, therefore, to accede to the application to vacate the hearing, but only on the basis that the appeal will be heard in December on specific dates which I’ve indicated to the parties the Court is available to deal with the appeal. 

9. I will make orders accordingly.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg.

Associate:

Dated:        19 November 2010