Parkinson v Driessen

[1999] FCA 197

FEDERAL COURT OF AUSTRALIA

Parkinson v Driessen [1999] FCA 197

DAVID PARKINSON v PETER ANTONIUS DRIESSEN AND MARIETTE BERNADETTE DRIESSEN
QG 7115 OF 1998

DOWSETT J

24 FEBRUARY 1999
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 7115 OF 1998

BETWEEN:

DAVID PARKINSON
Applicant

AND:

PETER ANTONIUS DRIESSEN
First Respondent

MARIETTE BERNADETTE DRIESSEN
Second Respondent

JUDGE:

DOWSETT J

DATE OF ORDER:

24 FEBRUARY 1999

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        The applicant pay the respondents’ costs of the proceedings, including reserved costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 7115 OF 1998

BETWEEN:

DAVID PARKINSON
Applicant

AND:

PETER ANTONIUS DRIESSEN
First Respondent

MARIETTE BERNADETTE DRIESSEN
Second Respondent

JUDGE:	DOWSETT J
DATE:	24 FEBRUARY 1999
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. This matter has been listed for hearing before me today.  It is an application to set aside a bankruptcy notice based upon a judgment in the Magistrates Court which was by default.  The present applicant, Mr Parkinson, subsequently sought to set aside the judgment.  That was unsuccessful.  He filed a notice of appeal but did not prosecute the appeal.

2. The matter was listed before me in November last year.  At that stage it was arranged for hearing during the current Full Court sittings on a day on which I was not required for the Full Court.  There is no suggestion that the applicant has had other than adequate notice of proceedings.  He says that he has always understood that an essential witness, from his point of view, is a Mr Jepson, who has sworn an affidavit.  He understood that Mr Jepson had to attend to be of benefit to him for the purposes of this application.

3. It seems that there has never been any formal notice from the respondent requiring Mr Jepson for cross-examination.  The respondent has indicated that it does not, in fact, require him for cross-examination.  Mr Parkinson, the applicant, asserts that he had made arrangements with Mr Jepson to attend.  Mr Jepson now lives in England.  However on Friday of last week, the applicant was informed by Mr Jepson’s wife that he wouldn’t be coming because he didn’t need the stress, and because it would disrupt his employment in the United Kingdom.

4. The applicant took that as leading to the conclusion that he could not successfully prosecute the application today and therefore dismissed his legal advisers.  He appears today to say that he is not in a position to proceed.  Some doubt must attend the bona fides of his claim relating to Mr Jepson.  In particular, it seems that no inquiry has been made as to whether Mr Jepson would be willing to give evidence by videolink, although it is said that inquiries were made as to the availability of videolink facilities.

5. Even accepting the applicant’s assertions at face value, it does not seem to me to lead to the conclusion that the proceedings today should be adjourned simply because he does not have legal representation.  He was not entitled to infer that the matter would not proceed today.  He did not raise with the respondent the question of whether or not he required Mr Jepson’s attendance. The respondent had not so indicated.  Had the respondent been asked about that matter after Mr Jepson’s unavailability became known, he would probably have indicated that he did not require him for cross-examination.  In the circumstances, the position in which Mr Parkinson finds himself is entirely of his own creation.  I do not think, given the history of this matter, that it would be appropriate to further penalise the respondent by adjourning the matter.  In the circumstances, I consider that it should continue today.

6. Mr Parkinson has indicated that he does not feel capable of conducting his own application.  I have indicated that whether that be so or not, the matter is to proceed today.  He does not seek to read his application, nor does he seek to read any of the affidavits filed in support thereof.

7. In the circumstances, the applicant choosing not to read his application or his affidavits, there is no material before me upon which I could set aside the bankruptcy notice.  The application is dismissed.

8. I order the applicant to pay the respondent’s costs of the proceedings, including reserved costs.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:             24 February 1999

The Applicant appeared in Person.
Counsel for the Respondent:	Miss C Heyworth-Smith
Solicitor for the Respondent:	Morrisons
Date of Hearing:	24 February 1999
Date of Judgment:	24 February 1999