Mulhern v Pearce - [2012] FCA 884

FEDERAL COURT OF AUSTRALIA
Mulhern v Pearce [2012] FCA 884

Citation: Mulhern v Pearce [2012] FCA 884

Parties: THE AUSTRALIAN MADE BANKRUPT MICHAEL RICHARD MULHERN v MARK WILLIAM PEARCE AND ANDREW JOHN HEERS AUSTRALIAN FEDERAL COURT APPOINTED TRUSTEES and JOSEPH MICHAEL DODRILL

File number: QUD 242 of 2012

Judge: BESANKO J

Date of judgment: 17 August 2012

Date of hearing: 17 August 2012

Place: Adelaide

Division: GENERAL DIVISION

Category: No Catchwords

Number of paragraphs: 9

Counsel for the Appellant: The Appellant did not appear

Counsel for the Respondents: Mr P G Lynch

Solicitor for the Respondents: Lynch Morgan

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 242 of 2012

BETWEEN:
THE AUSTRALIAN MADE BANKRUPT MICHAEL RICHARD MULHERN
Appellant

AND:
MARK WILLIAM PEARCE AND ANDREW JOHN HEERS AUSTRALIAN FEDERAL COURT APPOINTED TRUSTEES
First Respondent

JOSEPH MICHAEL DODRILL
Second Respondent

JUDGE:

BESANKO J

DATE OF ORDER:

17 AUGUST 2012

WHERE MADE:

ADELAIDE VIA VIDEO LINK WITH BRISBANE

THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The first respondent’s costs of this application and of the appeal be costs in the bankrupt’s estate.

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

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 242 of 2012

BETWEEN:
THE AUSTRALIAN MADE BANKRUPT MICHAEL RICHARD MULHERN
Appellant

AND:
MARK WILLIAM PEARCE AND ANDREW JOHN HEERS AUSTRALIAN FEDERAL COURT APPOINTED TRUSTEES
First Respondent

JOSEPH MICHAEL DODRILL
Second Respondent

JUDGE:

BESANKO J

DATE:

17 AUGUST 2012

PLACE:

ADELAIDE VIA VIDEO LINK WITH BRISBANE

REASONS FOR JUDGMENT

This is an application by the first respondent to an appeal for an order that the appeal be dismissed for the failure by the appellant to comply with a direction of the Court, or to comply with the Federal Court Rules 2011 (“Federal Court Rules”) or to prosecute the appeal. The application is made under Rule 36.74 of the Federal Court Rules. The power of a single judge to make the order sought by the first respondent is contained in section 25 of the Federal Court of Australia Act 1976 (Cth), which relevantly provides:
(2B)     A single Judge (sitting in chambers or in open court) or a Full Court may:
(ba) make an order that an appeal to the Court be dismissed for want of prosecution; or
(bb)      make an order than an appeal to the Court be dismissed for:
(i)   failure to comply with a direction of the Court.
The notice of appeal was filed by the appellant on 21 May 2012. Rule 36.52 of the Federal Court Rules deals with a number of matters, including a party making an application in writing to the Registrar for the Registrar’s assistance. The appellant did not make such an application in this case. Rule 36.52(2) provides as follows:
If there is no application by any party under subrule (1), the appellant must, within 28 days after the service of the notice of appeal, submit to the Registrar…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mulhern v Pearce

Details

AGLC: Mulhern v Pearce [2012] FCA 884
Case: [2012] FCA 884
Decision Date

CaseChat Overview and Summary

In the case of Mulhern v Pearce, the appellant, Michael Richard Mulhern, a bankrupt, appealed against the decision of the court. The respondents were Mark William Pearce and Andrew John Heers, who were appointed trustees, and Joseph Michael Dodrill. The appeal was heard by Besanko J in the Federal Court of Australia. The primary issue before the court was whether the appeal should be dismissed for want of prosecution or for failure to comply with the court's directions and the Federal Court Rules.

The court examined the appellant's failure to comply with the procedural requirements of the Federal Court Rules, specifically Rule 36.52, which required the submission of a draft index to Parts A and B of the Appeal Book within 28 days of filing the notice of appeal. The appellant did not comply with this rule or with the specific order made by Collier J on 18 July 2012, which mandated the submission of a draft index within 14 days. The appellant did not provide any explanation for his non-compliance and did not indicate any intention to comply with the court's order. The court concluded that, in the absence of any justification or indication of future compliance, it was appropriate to dismiss the appeal.

Besanko J dismissed the appeal and ordered that the costs of the application and the appeal be paid from the bankrupt’s estate. This decision underscores the importance of adhering to court rules and orders, and the court's authority to enforce compliance.

Orders