Patten v New Holland Credit Australia Pty Ltd

[2006] FCA 1724

FEDERAL COURT OF AUSTRALIA

Patten v New Holland Credit Australia Pty Ltd [2006] FCA 1724

LESLIE ALYN PATTEN v NEW HOLLAND CREDIT AUSTRALIA PTY LTD
NSD 1594 OF 2006

TAMBERLIN J
24 NOVEMBER 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1594 OF 2006

BETWEEN:	LESLIE ALYN PATTEN Appellant
AND:	NEW HOLLAND CREDIT AUSTRALIA PTY LTD Respondent

JUDGE:	TAMBERLIN J
DATE OF ORDER:	24 NOVEMBER 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The Notice of Appeal filed on 22 August 2006 be struck out.

2.The costs of this application be paid by the appellant.

3.These orders are not to come into force until seven days pending approval by the Chief Justice of the hearing of this matter by a single Judge.

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	NSD 1594 OF 2006

BETWEEN:	LESLIE ALYN PATTEN Applicant
AND:	NEW HOLLAND CREDIT AUSTRALIA PTY LTD Respondent

JUDGE:	TAMBERLIN J
DATE:	24 NOVEMBER 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In this matter, there has been no appearance by the appellant on the Notice of Motion filed on 11 September 2006 by the respondent seeking an order striking out the Notice of Appeal filed on 22 August 2006.  Having regard to the records, I am satisfied that the appellant was aware that the matter had been fixed for hearing this morning. I am also satisfied, having considered the Notice of Appeal, that it does not disclose any basis which has any reasonable prospect of success.

2. I note that the respondent does not seek at this stage to have the proceedings dismissed. Rather, the respondent requests that the Notice of Appeal in its present form be struck out.  In the circumstances, I am satisfied that the Notice of Appeal does not disclose any arguable basis for granting the appeal. Accordingly I strike out the Notice of Appeal. However, as indicated, I do not take the further step - and it is not sought by the respondent at this stage – of dismissing the proceedings on the basis that no reasonable cause of action can be shown.

3. Accordingly, I order that the Notice of Appeal filed on 22 August 2006 be struck out and I order that the costs of this application be paid by the appellant.  However, these orders are not to come into force until seven days pending approval by the Chief Justice of the hearing of this matter by a single Judge, should that approval be necessary.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated:       11 December 2006

There was no appearance by the Appellant.
Counsel for the Respondent:	Mr A. Spencer
Solicitor for the Respondent:	Bayside Solicitors
Date of Hearing:	24 November 2006
Date of Judgment:	11 December 2006