Stathopoulos v Junkeer
[2013] FCA 985
FEDERAL COURT OF AUSTRALIA
Stathopoulos v Junkeer [2013] FCA 985
Citation: Stathopoulos v Junkeer [2013] FCA 985 Appeal from: Stathopoulos v Junkeer & Anor [2012] FMCA 618 Parties: GEORGE STATHOPOULOS v DEBORAH LILITHE JUNKEER File number: VID 486 of 2012 Judge: NORTH J Date of judgment: 26 August 2013 Date of hearing: 26 August 2013 Place: Melbourne Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 13 Counsel for the Appellant: The appellant did not appear Counsel for the Respondent: G J Herbert Solicitor for the Respondent: Kiatos & Co
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 486 of 2012
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: GEORGE STATHOPOULOS
Appellant
AND: DEBORAH LILITHE JUNKEER
Respondent
JUDGE:
NORTH J
DATE OF ORDER:
26 AUGUST 2013
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The respondent be relieved from compliance with the rules otherwise requiring service on the appellant of an application to dismiss the appeal for want of prosecution.
2.The appeal is dismissed for want of prosecution.
3.The appellant pay the respondent’s costs of the appeal.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 486 of 2012
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: GEORGE STATHOPOULOS
Appellant
AND: DEBORAH LILITHE JUNKEER
Respondent
JUDGE:
NORTH J
DATE:
26 AUGUST 2013
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
Before the Court is an application by Deborah Lilithe Junkeer, the respondent, to dismiss an appeal brought by George Stathopoulos, the appellant for want of prosecution under r 36.74 of the Federal Court Rules 2011.
A single judge in exercising the Court’s appellate jurisdiction can under s 25(2B)(ba) of the Federal Court of Australia Act 1976 (Cth) (Act) make an order that an appeal be dismissed for want of prosecution. Under s 25(2B)(bb) an appeal can also be dismissed for failure to comply with a direction of the Court or failure of the appellant to attend a hearing relating to the appeal.
The respondent relied on the appellant’s failure to take steps to progress the appeal and his non-compliance with orders relating to the appeal.
The matter has had a long history. On 22 March 2011, the respondent obtained judgment against the appellant in the County Court of Victoria for $281,399.30. The appellant failed to pay the judgment debt and the respondent issued bankruptcy proceedings. On 21 June 2012, the Federal Magistrates Court, as it then was, made a sequestration order against the estate of the appellant. On 12 July 2012, the appellant filed a notice of appeal against the sequestration order.
The appellant then applied for a stay of the sequestration order. That application was adjourned on a number of occasions until it was ultimately dismissed by consent on 1 February 2013.
On 23 October 2012, Gray J ordered that the appeal be listed for hearing in the February 2013 appeal sittings before a single judge of the Court under s 25(1AA)(a) of the Act. His Honour ordered that the draft index for the appeal book be filed by 2 November 2012. Orders were also made for the filing of submissions and the appeal book.
The steps required by the orders made by Gray J have not been complied with.
The appeal came on for directions on 15 July 2013 and the appellant sought a further adjournment of the hearing of the appeal. He sought the adjournment on the basis that he would be seeking to enter into a deed of arrangement with his creditors, including the respondent.
On that occasion, the respondent indicated that if the negotiations did not yield a result, she would seek to dismiss the appeal. The respondent wished to do this on the basis that the appellant had failed to prosecute the appeal by failing to comply with the orders made by Gray J.
The respondent sought to proceed with the application to dismiss the appeal today. Mr Herbert stated that the respondent was not aware of any attempt by the appellant to enter into a deed of arrangement with his creditors as contemplated at the last hearing. The appeal has also not progressed and the appellant has not appeared at the hearing,
Rule 36.74(2) ordinarily requires a respondent seeking to have an appeal dismissed to serve and file an application on an appellant. The respondent has not filed and served an application to dismiss the appeal. Nevertheless, the appellant was represented at the previous directions hearing on 15 July 2013. At that hearing, the appellant was given notice by counsel who appeared on behalf of the respondent that, at the next directions hearing, an application to dismiss the appeal would be pursued if the matter was not resolved. Consequently, it is appropriate to order that the respondent be relieved from compliance with r 36.74(2).
In view of the failure of the appellant to take any steps to prosecute the appeal for more than a year, the indication at the directions hearing on 15 July 2013 that the respondent would seek to dismiss the appeal unless the matter was resolved and the appellant’s failure to appear today, the grounds have been established for the dismissal of the appeal under s 25(2B)(ba) of the Act.
Consequently the appeal will be dismissed with costs.
I certify that the preceding thirteen (13) numbered paragraph are a true copy of the Reasons for Judgment herein of the Honourable Justice North. Associate:
Dated: 3 October 2013
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