Mircevski v Pattison

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FEDERAL COURT OF AUSTRALIA

Mircevski v Pattison [2011] FCAFC 144

Citation: Mircevski v Pattison [2011] FCAFC 144
Appeal from: Mircevski v Pattison [2011] FCA 740
Parties: ALEX MIRCEVSKI v PAUL ANTHONY PATTISON, PATTISON BUSINESS RECOVERY & INSOLVENCY SPECIALISTS PTY LTD (ACN 098 345 343), INSOLVENCY AND TRUSTEE SERVICE AUSTRALIA and DEPUTY COMMISSIONER OF TAXATION
File number: VID 605 of 2011
Judges: LANDER, GILMOUR AND GORDON JJ
Date of judgment: 14 November 2011
Catchwords: APPEAL AND NEW TRIAL – appeal from an order dismissing a proceeding – appellant had sought to withdraw proceeding – relevancy of grounds of appeal – failure to prosecute appeal – non-compliance with rules – non-compliance with orders – appeal dismissed
Legislation: Bankruptcy Act 1966 (Cth) s 180
Federal Court of Australia Act 1976 (Cth) s 25(2B)(ba), s 25(2B)(bb)(i)
Federal Court Rules 2011 r 4.15, r 36.74
Date of hearing: 14 November 2011
Place: Melbourne
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 21
Counsel for the Appellant: The Appellant appeared in person
Counsel for the First and Second Respondents: The First and Second Respondents did not appear
Counsel for the Third Respondent: Mr J Giacco
Solicitor for the Third Respondent: Australian Government Solicitor
Counsel for the Fourth Respondent: Mr J Matheson
Solicitor for the Fourth Respondent: ATO Legal Services

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 605 of 2011
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN:

ALEX MIRCEVSKI
Appellant
AND:

PAUL ANTHONY PATTISON
First Respondent

PATTISON BUSINESS RECOVERY & INSOLVENCY SPECIALISTS PTY LTD (ACN 098 345 343)
Second Respondent

INSOLVENCY AND TRUSTEE SERVICE AUSTRALIA
Third Respondent

DEPUTY COMMISSIONER OF TAXATION
Fourth Respondent

JUDGES:

LANDER, GILMOUR AND GORDON JJ

DATE OF ORDER:

14 NOVEMBER 2011

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the third and fourth respondents’ costs of the appeal.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 605 of 2011
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN:

ALEX MIRCEVSKI
Appellant
AND:

PAUL ANTHONY PATTISON
First Respondent

PATTISON BUSINESS RECOVERY & INSOLVENCY SPECIALISTS PTY LTD (ACN 098 345 343)
Second Respondent

INSOLVENCY AND TRUSTEE SERVICE AUSTRALIA
Third Respondent

DEPUTY COMMISSIONER OF TAXATION
Fourth Respondent

JUDGES:

LANDER, GILMOUR AND GORDON JJ

DATE:

14 NOVEMBER 2011

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

THE COURT:

  1. This is an appeal from a judge of this Court dismissing the appellant’s proceeding.

  2. The appellant was represented before the primary judge by pro bono counsel, who was also representing the appellant on this appeal until Friday, 11 November 2011 when an order was made by a registrar of the Court permitting counsel to cease providing legal assistance to the appellant after the appellant indicated his consent: r 4.15 of the Federal Court Rules 2011 (Rules).  The appellant appeared unrepresented on the appeal.

  3. On 19 July 2011 a judge of this Court made the following orders:

    1.The appeal be listed…

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Details
Case
[2011] FCAFC 144
Decision Date

CaseChat Overview and Summary

The appellant, Mircevski, sought leave to appeal against an order that dismissed his proceeding against the respondents. The Federal Court was asked to consider the grounds of appeal and whether they were relevant. The appellant had previously sought to withdraw the proceeding and there were issues regarding the failure to prosecute the appeal and non-compliance with rules and orders. The court was tasked with determining whether the appeal should proceed and if the appellant’s conduct warranted dismissal.

The court found that the grounds of appeal were not relevant because they did not address the order dismissing the proceeding. The appellant's attempt to withdraw the proceeding was not properly before the court. The appellant had also failed to prosecute the appeal, which included non-compliance with the rules and orders. The court held that these failures justified dismissing the appeal. The appellant’s conduct demonstrated a lack of seriousness about the appeal, leading to the conclusion that dismissal was appropriate.

Given the appellant's failure to comply with procedural requirements and the lack of merit in the grounds of appeal, the court dismissed the appeal. The court also ordered the appellant to pay the costs of the appeal to the third and fourth respondents. This decision underscores the importance of adhering to procedural rules and the consequences of failing to do so. The dismissal and costs order reflect the court's stance on the appellant’s lack of diligence and seriousness in pursuing the appeal.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the third and fourth respondents’ costs of the appeal.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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