Patten v New Holland Credit Australia Pty Ltd

[2006] FCA 1232

FEDERAL COURT OF AUSTRALIA

Patten v New Holland Credit Australia Pty Ltd [2006] FCA 1232

Federal Court Rules, O 52 r 17

Burns v AMP Finance Limited (2005) FCA 761

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

TAMBERLIN J
1 SEPTEMBER 2006
SYDNEY

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

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	TAMBERLIN J
DATE OF ORDER:	1 SEPTEMBER 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for a stay on all proceedings in Matter No. SYG 840/2006 is refused.

2.The costs of this application form part of the costs of the administration.

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

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	TAMBERLIN J
DATE:	1 SEPTEMBER 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This proceeding concerns an application for a stay outlined in a Notice of Motion filed on 22 August 2006. The application relates to a decision handed down by Federal Magistrates Barnes on 2 August 2006.  Her Honour decided that on the evidence put before her she was not satisfied that the Sequestration Order ought not to have been made or that the Court should make an order annulling the bankruptcy.  Submissions in relation to costs were also heard.  The Notice of Motion is for a stay pending an appeal lodged on 22 August 2006. A number of grounds are set out on this Notice of Appeal.

2. In this matter, I am exercising the appellate jurisdiction of the Court, and accordingly the consent of the Chief Justice will be obtained.  The parties are in agreement that provided that consent is obtained, no jurisdictional objection would be taken in relation to the matter. It was convenient to deal with the matter at this time in light of the fact that Ms Patten has come to Sydney from the country for the purpose of putting her case in relation to this stay application.

3. The Court has power to stay proceedings pending the hearing of an appeal.  As stated in Order 52 rule 17, an appeal to the Court does not operate as a stay of proceedings under the judgment appealed from except so far as the Court or a Judge or the Court below may direct.

4. In considering the principles applicable to the Court’s exercise of this discretionary power, it is not necessary that special or exceptional circumstances be made out for a stay of proceedings to be granted.  It is sufficient if the party applying for the stay demonstrates a reason or an appropriate case that warrants the exercise of the discretion in the applicant’s favour.

5. Even though the circumstances need not be special or exceptional in the sense of being unusual or rare, the party seeking the stay needs to show some reason why the stay should be granted.  In some cases, the Court has alluded to the principles concerning the discretion to grant a stay. In general, the Courts have paid regard to the extent of the prejudice that might be caused if a stay were not granted, and also, most importantly, to the question of whether there is any reasonable or rational basis on which appeal could succeed.

6. Guidance can be obtained from the reasoning of the Court in the case of Burns v AMP Finance Limited (2005) FCA 761. In that case, Emmett J considered the grounds of appeal individually and made rulings in relation to each of them. In the present case, it is not necessary for me to consider the question of whether there is irreparable prejudice, or likely to be irreparable prejudice, if the stay were not granted. I am prepared to assume for the purpose of these reasons that some prejudice would be caused to the applicant. However, the important question is whether, on the evidence before me in relation to the stay and having regard to the grounds of appeal, it can be said that there is any reasonable or rational prospect of success such as to warrant the matter going before a Court on appeal or otherwise.

7. The Notice of Motion for the stay states that an appeal in matter SYD 840 of 2006 has been lodged. Paragraph 1 asserts that there are strong grounds for appeal because the case has been “prejudiced from the very beginning.”  It is alleged that “no due process has been given” and it is maintained that “to deny a stay at this stage would prejudice this even further and the consequences which would flow from this would create irreparable damage to many lives.” It is also noted that “there has been considerable damage already done, due to this being prejudiced and compromised from the beginning and through the whole process.”  Paragraph 2 makes reference to the fact that Ms Patten has filed proceedings in the Parramatta District Court to have the initial judgment set aside in File No. 182/2005. 

8. The evidence before me on the application for a stay is in the form of an affidavit by Ms Patten filed on 22 August 2006 and also one filed today by Mr Dracopoulos, a solicitor acting on behalf of the respondent, New Holland Credit Australia Pty Ltd. 

9. The affidavit of Ms Patten is in the most general terms and consists of a series of allegations.  There is no detailed factual material outlined in this affidavit.  The material basically consists of characterisations of conduct and strong allegations.  In my view, this does not advance the matter any further than the allegations which are stated in the Notice of Appeal.

10. I now turn to the Notice of Appeal.  As I mentioned, Paragraphs 2 to 11 set out what are alleged to be grounds to justify the application for a stay in this matter.  In Paragraph 2, Ms Patten alleges that she was not given due process leading up to the first judgment handed down in the Parramatta Court. Ms Patten states that she was not informed of this judgment until two years after the fact. The paragraph also states that she was not given 21 days in which to lodge an appeal from that decision and outlines further allegations that the case has been prejudiced against Ms Patten.

11. The central point to note in relation to the first ground outlined in Paragraph 2 is that there are no specific details or information given to substantiate the claims as stated or indicate any factual basis on which to ground the allegations.  The statements are cast in most general terms claiming prejudice. In my view, these claims take the matter no further.  I am not satisfied or persuaded that in relation to this first ground that there is any indication of specific error, or any particular facts indicating error in the decision of the Magistrate below.

12. In the second ground outlined in Paragraph 3 of the Notice of Appeal, there are allegations that the consumer credit laws have been breached by the respondents in the lead-up to the matter coming before the courts. The applicant says these breaches have not been adequately addressed, and it is said that no Judge has upheld those laws.  Again, there is repetition of the allegation that Ms Patten was not notified of the initial court hearing until two years after the fact of judgment, so she could not present her case.

13. The Federal Magistrate deals with both of these matters in a detailed judgment. The issue in relation to notification of the bankruptcy notice and the statement of claim is addressed at [74] – [92] and the application of consumer credit laws is discussed at [106] – [137]. Both of these matters are canvassed in substantial detail.  The position is simply that the applicant does not agree with the conclusions drawn by the Magistrate in relation to these questions.  Nevertheless, there is no evidence before me that specifically indicates an error on the face of the judgment, nor have I been addressed in any way as to the particular credit laws which are said to have been breached. Having regard to the generalised nature of the allegations which have been made, I am not persuaded there is any substance in the second ground which has been alleged.

14. Paragraph 4 of the Notice of Appeal is a list of allegations in relation to a factual matter.  However, there is no material provided or indication of any evidence to support these broad allegations.  The paragraph is a mixture of evidence, allegations and expressions of disagreement, and includes a reassertion of facts in relation to the items of contention to which this bankruptcy matter allegedly relates.  It includes references to an abusive phone call from the owner-manager of the auction house and also contends that a vehicle was returned brand new and had been used for only a few hours.  In my view, these statements are unsupported allegations and do not bestow any substance on the ground outlined in this paragraph.

15. Paragraph 5 concerns allegations of fact and various assertions in relation to New Holland Credit Pty Ltd.  In relation to Paragraph 6, there is no evidence before me that indicates that the severe criticism made of the Judge in that paragraph is justified.  The statements in this paragraph are simply allegations of a strong emotional nature in relation to the conduct and capacity of the Judge.  A reading of the very careful and detailed judgment of the Federal Magistrate is, in my view, not consistent with any of these allegations.  Certainly nothing specific has been presented by Ms Patten which could support the allegations.

16. The next ground stated in Paragraph 7 is based on an allegation that “the two items of contention cannot be found.” It is also said that there is evidence to suggest that the entire case of the respondent bankrupting the applicant should have never been allowed in the first case. This is not a ground of appeal but is simply an expression of dissatisfaction with the outcome of events concerning the items of contention. 

17. Paragraph 8 states that “there is more to this case which started to come to light through the last hearing,” however, there are no specific facts alleged or material presented that indicates that there is any substance in these allegations.

18. Paragraph 9 consists of a set of assertions relating to the conduct of the Judge and the proceedings in general.  Again, there is no specific material which would give any credence or substance to this ground. 

19. In Paragraph 10, it is alleged that the series of events has caused hardship “100 times worse than the drought” and that Ms Patten’s attempts to meet with the company’s directors were “blocked” when a memo from the company’s solicitors was sent to the company.  These statements are generalised and unsubstantiated.  As indicated earlier, while one can see the plight of the applicant, it is necessary for her to show some substance in the grounds she presents. The information contained in Paragraph 10 does not amount to a sufficient or rational ground of appeal that warrants the granting of a stay.

20. Paragraph 11 states that an appeal has been made to the Parramatta Local Court on the basis that the proceedings have been afforded no due process. Ms Patten adds in this paragraph that the matter “has been a total sham from the beginning,” and that she seeks a hearing by a jury of her peers.  This allegation does not advance the cause of the applicant. I have considerable difficulty discerning its relevance in relation to the matter in the absence of any detailed or useful information.

21. Having regard to the grounds of appeal, I am not persuaded that any of the grounds outlined in the paragraphs in the Notice of Appeal, taken individually or cumulatively in any combination, provide any rational basis on which this appeal could possibly succeed.  Accordingly, I refuse the stay. 

22. As the applicant has been given an opportunity to address the Court on the question of costs and has made no submissions in relation to that question, I make an order that the costs form part of the costs of the administration.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated:        15 September 2006

The Applicant appeared in person.
Counsel for the Respondent:	A Spencer
Solicitor for the Respondent:	Bayside Solicitors
Date of Hearing:	1 September 2006
Date of Judgment:	1 September 2006