O'Bryan v Koskie (No. 2)

[2008] FCA 1442

FEDERAL COURT OF AUSTRALIA

O’Bryan v Koskie (No. 2) [2008] FCA 1442

Federal Court Rules O 52 r 38A(1)(d)  

O’Bryan v Koskie [2008] FCA 1366
SHLB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 188

DARRYL MARK O'BRYAN v OLGA SARAH KOSKIE, CITY OF MONASH and PETER ROBERT VINCE

VID 266/2008

MARSHALL J
15 SEPTEMBER 2008
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 266/2008

BETWEEN: DARRYL MARK O'BRYAN
Applicant

AND:

OLGA SARAH KOSKIE
First Respondent

CITY OF MONASH
Second Respondent

PETER ROBERT VINCE
Third Respondent

JUDGE:	MARSHALL J
DATE OF ORDER:	15 SEPTEMBER 2008
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The motion of 8 September 2008 is dismissed

2.The applicant pay the first and second respondents’ costs of the motion, such costs to be taxed and then paid by the Trustee of the Bankrupt Estate of the applicant, with the same priority as provided for by section 109(1)(a) of the Bankruptcy Act 1966 (Cth) to the taxed costs of a petitioning creditor.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 266/2008

BETWEEN: DARRYL MARK O'BRYAN
Applicant

AND:

OLGA SARAH KOSKIE
First Respondent

CITY OF MONASH
Second Respondent

PETER ROBERT VINCE
Third Respondent

JUDGE:	MARSHALL J
DATE:	15 SEPTEMBER 2008
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The applicant applies by motion to have his appeal from the Federal Magistrates Court reinstated. The circumstances are these. The appeal hearing was listed for 10.15 am on 4 September 2008. All parties were notified according to normal Federal Court practice. The matter was listed to be heard in Court 6A. I opened court on time and when I took appearances it became apparent that there was no appearance for the applicant (the appellant in the appeal). Counsel for the first and second respondent was present. My associate called the matter and the name of the applicant outside Court 6A as is required by Federal Court practice. Pursuant to O 52 r 38A(1)(d) of the Federal Court Rules, I proceeded to hear the appeal. On the basis of written submissions filed with the Court for the applicant, I delivered ex tempore reasons and dismissed the appeal (see O’Bryan v Koskie [2008] FCA 1366). I closed the Court and left the bench.

2. In his Affidavit in Support of the Motion of 8 September 2008, the applicant states that the Daily Law List on the Court’s website listed the courtroom for the hearing as Court 8D. He also states that the Daily Law List in the entrance foyer of the Court listed the matter as being heard in Court 8D. He states that he proceeded to Court 8D and waited in that courtroom until a few minutes after 10.15 am at which point he went to the Public Counter of the Registry on Level 7 and was advised that the hearing was being heard in Court 6A. The applicant arrived in Court 6A after I had dismissed the appeal and left the bench and explained to my associate that he had been waiting in Court 8D.  The appeal was never listed in Court 8D but in Court 6A. The applicant misread the law list. The law list exhibited to his affidavit shows the appeal as listed in Court 6A.

3. Pursuant to O 52 r 38A(2)(a) and (b), I have a discretionary power to set aside the orders made on 4 September 2008 and to reinstate the appeal. It is not uncommon in similar circumstances to allow such a course. However, in SHLB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 188 at [15], a Full Court said,

   The power to reinstate is one that should be exercised with considerable caution... It would be insufficient simply to show that the Full Court erred in dismissing the application because it misapprehended the reason for, or circumstances of, the appellant’s non-attendance if the application itself had no prospects of success in any event.

4. The applicant did not, this morning, advance any contentions of any substance additional to those advanced in his written submissions upon which I based my decision to dismiss the appeal. The applicant has not suffered any injustice by the manner in which his appeal was dismissed. A different outcome would not be possible if the appeal were reinstated. In that sense, the motion is futile and must be dismissed, with costs.

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

Associate:

Dated:        19 September 2008

The Applicant appeared in person.
Counsel for the First and Second Respondents:	Mr K Baker
Solicitor for the First and Second Respondents:	Macpherson & Kelley Lawyers
There was no appearance for the Third Respondent.

Date of Hearing:	15 September 2008
Date of Judgment:	15 September 2008