O'Meara v New South Wales

[2001] FCA 280

FEDERAL COURT OF AUSTRALIA

O’Meara v New South Wales [2001] FCA 280

KENNETH IAN O’MEARA v STATE OF NEW SOUTH WALES

N 7988 OF 2000

WHITLAM J
13 MARCH 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N7988 OF 2000

BETWEEN:	KENNETH IAN O'MEARA APPLICANT
AND:	STATE OF NEW SOUTH WALES RESPONDENT
JUDGE:	WHITLAM J
DATE OF ORDER:	13 MARCH 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.   The application be dismissed.

2.   The applicant pay the respondent’s costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N7988 OF 2000

BETWEEN:	KENNETH IAN O'MEARA APPLICANT
AND:	STATE OF NEW SOUTH WALES RESPONDENT

JUDGE:	WHITLAM J
DATE:	13 MARCH 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application to set aside a bankruptcy notice.  In addition to the grounds stated in his supporting affidavit, the applicant challenged the retainer of the solicitor for the respondent creditor.  Such challenge was foreshadowed at a directions hearing on 15 February 2001. 

2. The presentation of the applicant’s case proceeded in a very haphazard manner this morning.  The applicant, who has the misfortune to be representing himself, meandered all over the place in his address, and many of his submissions were irrelevant.  At 12.15 pm the matter was adjourned because, when counsel for the respondent rose to address, it became apparent that his outline of submissions had not been seen by the applicant.  I adjourned until 2.15 pm to give the applicant an opportunity to digest that material.

3. During the adjournment, two telephone messages were left on the answering machine of my associate.  In the first message the applicant said that he would be discontinuing this proceeding.  The second message indicated that he would not, in any event, be turning up this afternoon.  In the circumstances, the only possible conclusion I can draw is that the debtor has abandoned his application.  Accordingly, the proceeding will be dismissed for want of prosecution.

4. In taking that course, I pause to acknowledge the cogency of Mr DeBuse’s very comprehensive submissions, which may well have caused the debtor to flee the field.  The application will 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 Whitlam.

Associate:

Dated:             20 March 2001

The applicant appeared in person.
Counsel for the respondent:	Benjamin DeBuse
Solicitor for the respondent:	IV Knight, Crown Solicitor
Date of hearing:	13 March 2001
Date of judgment:	13 March 2001