Stephenson v ACN 000 007 492 Ltd (Under Judicial Management) (Subject to Deed of Company Arrangement) (No 1)

[2010] FCA 785

FEDERAL COURT OF AUSTRALIA

Stephenson v ACN 000 007 492 Ltd (Under Judicial Management) (Subject to Deed of Company Arrangement) (No 1) [2010] FCA 785

Citation:		Stephenson v ACN 000 007 492 Ltd (Under Judicial Management) (Subject to Deed of Company Arrangement) (No 1) [2010] FCA 785
Parties:		AARON GEOFFREY STEPHENSON v ACN 000 007 492 LTD (UNDER JUDICIAL MANAGEMENT) (SUBJECT TO DEED OF COMPANY ARRANGEMENT), ROBERT ELLIOTT and GEOFFREY MCDONALD
File number(s):		NSD 1678 of 2008
Judge:		PERRAM J
Date of judgment:		23 July 2010
Legislation:		Federal Court Rules O 35A, rs 2, 3 Insurance Act 1973 (Cth)
Date of hearing:	21 July 2010
Date of last submissions:	21 July 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	3
Counsel for the Applicant:	No Appearance
Solicitor for the Applicant:	No Appearance
Solicitor for the Second and Third Respondents:	ERA Legal: Ms R Moodley
Solicitor for the Australian Prudential Regulation Authority:	Australian Prudential Regulation Authority: Mr L B Weate

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1678 of 2008

BETWEEN:

AARON GEOFFREY STEPHENSON
Applicant

AND:

ACN 000 007 492 LTD (UNDER JUDICIAL MANAGEMENT) (SUBJECT TO DEED OF COMPANY ARRANGEMENT)
First Respondent

ROBERT ELLIOTT
Second Respondent

GEOFFREY MCDONALD
Third Respondent

JUDGE:	PERRAM J
DATE OF ORDER:	23 JULY 2010
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The proceeding be dismissed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1678 of 2008

BETWEEN:

AARON GEOFFREY STEPHENSON
Applicant

AND:

ACN 000 007 492 LTD (UNDER JUDICIAL MANAGEMENT) (SUBJECT TO DEED OF COMPANY ARRANGEMENT)
First Respondent

ROBERT ELLIOTT
Second Respondent

GEOFFREY MCDONALD
Third Respondent

JUDGE:	PERRAM J
DATE:	23 JULY 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In this proceeding Mr Stephenson brought a claim against ACN 000 007 492 Ltd which, at an earlier time, was known as Rural and General Insurance Ltd.  The application sought an order that would remove the deed administrator from office in that company.  That proceeding was related to another proceeding pending in this court, brought by the deed administrator also against the insurer, seeking approval for his remuneration.  Subsequently, APRA also commenced its own proceeding in relation to the administrator’s remuneration.

2. On 18 June 2010, following an application by APRA, I appointed a judicial manager to ACN 000 007 492 Ltd pursuant to the provisions of the Insurance Act 1973 (Cth). As a consequence of that appointment the deed administrator’s office was immediately vacated. Consequently, Mr Stephenson’s proceeding against the insurer for the removal of the deed administrator became otiose. The matter came before me for directions on 12 July 2010, at which point Mr Stephenson did not appear through his ordinary solicitor who is Mr Boyd-Boland. Ms Moodley, who has appeared throughout for the deed administrator, informed me that she had spoken to Mr Boyd‑Boland and that he was aware of the hearing on 12 July 2010. Subsequently, the proceeding was stood over to today, 21 July 2010, for further directions. Again, Mr Boyd-Boland has not appeared.

3. I do not mean to be critical of him in making that remark. Obviously, from a practical point of view, proceeding NSD 1678 of 2008 has ceased to have any real point.  However, it is not appropriate that a case remain pending in the list of this Court which serves no utility.  In the circumstances which obtain where the moving party has failed to appear consecutively at two directions hearings, which relevantly constitutes a default of prosecution (O 35A r 2(1)(b)), the Court may dismiss the matter: O 35A r 3(1)(a). This is an appropriate case for exercising such a power.  I therefore order that:

   1.In proceeding NSD 1678 of 2008, Mr Stephenson’s claim be struck out.

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

Associate:

Dated:       28 July 2010