Savage v Cranstoun (Trustee)

[2001] FCA 1522

FEDERAL COURT OF AUSTRALIA

Savage v Cranstoun (Trustee) [2001] FCA 1522

GORDON ALFRED SAVAGE v DAVID JOHN CRANSTOUN AS TRUSTEE FOR THE ESTATE OF D.J. SAVAGE

No Q 204 of 2001

SPENDER J
BRISBANE
19 OCTOBER 2001

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 204  OF 2001

BETWEEN:	GORDON ALFRED SAVAGE APPLICANT
AND:	DAVID JOHN CRANSTOUN AS TRUSTEE FOR THE ESTATE OF D.J. SAVAGE RESPONDENT
JUDGE:	SPENDER J
DATE OF ORDER:	19 OCTOBER 2001
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.A copy of the reasons for judgment of Spender J of 19 October 2001 be forwarded by post by the Registrar to Mr Savage.  With those reasons are to go a copy of the reasons of the Federal Magistrate which were delivered on 12 October 2001 and a copy of the respondent’s submissions dated 18 October 2001 by Mr Paul Hudson, solicitor for the Trustee.

2.Mr Savage file with the Court and serve by post on the Trustee by delivery to Paul Hudson, solicitor, 40 Ralston Street, Wilston, 4051 a copy of the proposed notice of appeal specifying the grounds on which Mr Savage wishes to argue that the Federal Magistrate was wrong in law or in fact in making the orders that were pronounced on 29 August 2001. That proposed notice of appeal should be filed and served (in the manner that I have indicated by 4 pm on Monday, 12 November 2001.  In addition, Mr Savage should file and serve (in the matter that I have earlier indicated) an affidavit setting out what Mr Savage says are the special reasons why the Court should give leave to file and serve the notice of appeal.

3.The costs of today be reserved.

4.The application be listed for Tuesday 11 December 2001 at 10.15 am.

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	Q 204  OF 2001

BETWEEN:	GORDON ALFRED SAVAGE APPLICANT
AND:	DAVID JOHN CRANSTOUN AS TRUSTEE FOR THE ESTATE OF D.J. SAVAGE RESPONDENT

JUDGE:	SPENDER J
DATE:	19 OCTOBER 2001
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. I note that there was telephone communication with Mr Savage earlier, but for some reason that came to an end, and is now not possible for the telephone number at which Mr Savage was to be contacted.  Presumably, the position is that the telephone is not on the hook.

2. I read the circumstances into the record because, amongst other things, yesterday Mrs Savage rang the Registry on behalf of her husband concerning the directions hearing which had been set down this morning.  She apparently told the Registry that her husband would not be able to speak on the phone.  Her daughter, who speaks on behalf of her husband on occasions, is unavailable today to attend Court or to be part of a phone hook-up, and Mrs Savage also indicated that she had some difficulties.

3. A document headed Application for Extension of Time to File and Serve Notice of Appeal was filed on 19 September in respect of a decision made by the Federal Magistrates Court of Australia on 29 August 2001 in Brisbane.  In an affidavit also filed on the same day, Mr Savage indicated that he had been waiting to receive a copy of the order made on 29 August before he could file the appeal papers.

4. The circumstances, as I understand it, are that there was no material put before the Court by Mr Savage at the time the Magistrate made his decision.  The only material that there was – in fact, as the reasons show, quite extensive material – was material to which the daughter of Mr Savage had made reference.

5. The difficulty that attends the present matter is the fact that Mr Savage has not done very much to advance his challenge to the decision of the Magistrate.

6. There are, however, two aspects of the matter to which I have given great consideration.  The first of those is that, notwithstanding the Magistrate made orders on 29 August, it was not until 12 October that reasons for those orders became available from the Magistrate.  It seems only appropriate that a person affected by orders should know the reasons for them so as to be in a position, if that is possible, to challenge them.

7. As against that, the Court has been supplied with submissions on behalf of the Trustee of the Estate of Donna Jean Savage by Mr Hudson, the solicitor for the Trustee, and those submissions deal in detail with the questions of the time within which matters are to be brought.

8. What I think I should do in the circumstances, and in particular in regard to the difficulties that the Court has experienced in relation to appearances by or on behalf of Mr Savage, is this:

   (1)I direct that a copy of these reasons be forwarded by post by the Registrar to Mr Savage.  With those reasons are to go a copy of the reasons of the Federal Magistrate which were delivered on 12 October 2001 and a copy of the respondent’s submissions dated 18 October 2001 by Mr Paul Hudson, solicitor for the Trustee.  Mr Savage will then be able to see all of that material.

   (2)I direct that Mr Savage file with the Court and serve by post on the Trustee by delivery to Paul Hudson, solicitor, 40 Ralston Street, Wilston, 4051 a copy of the proposed notice of appeal specifying the grounds on which Mr Savage wishes to argue that the Federal Magistrate was wrong in law or in fact in making the orders that were pronounced on 29 August 2001.  That proposed notice of appeal will define the basis on which Mr Savage seeks to challenge the orders of the Federal Magistrate.  That proposed notice of appeal should be filed and served (in the manner that I have indicated) by 4 pm on Monday, 12 November.  In addition, Mr Savage should file and serve (in the matter that I have earlier indicated) an affidavit setting out what Mr Savage says are the special reasons why the Court should give leave to file and serve a notice of appeal.

9. I will hear Mr Savage’s application at 10.15 am on Tuesday 11 December 2001.  If there is to be any further material filed by or on behalf of Mr Cranstoun, that material should be filed and served by 30 November 2001 at 4 pm.  In the circumstances, I will reserve the costs of today.

10. It seems to me, in the circumstances, that that is the most sensible way of dealing with it.  I do not know what, in fact, are the claimed grounds of appeal, so this will at least deal with the merits rather than the technicalities about time, leave, and so on.  It does give recognition to the fact that an ex tempore decision and those orders were made on 29 August 2001.  A copy of those reasons was not available to the parties until at least 12 October 2001.  That circumstance raises difficulties with respect to compliance with time limits.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.

Associate:

Dated:             30 October 2001

There was no appearance on behalf of the applicant.
Solicitor for the Respondent:	Mr P. Hudson
Date of Hearing:	19 October 2001
Date of Judgment:	19 October 2001