Szita v Inga

[2009] FCA 94

FEDERAL COURT OF AUSTRALIA

Szita v Inga [2009] FCA 94

MICHAEL JOHN SZITA v GIULIA INGA

VID 865 of 2008

TRACEY J
6 FEBRUARY 2009
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 865 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	MICHAEL JOHN SZITA Applicant
AND:	GIULIA INGA Respondent

JUDGE:	TRACEY J
DATE OF ORDER:	6 FEBRUARY 2009
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The application be dismissed with costs.

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 eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 865 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	MICHAEL JOHN SZITA Applicant
AND:	GIULIA INGA Respondent

JUDGE:	TRACEY J
DATE:	6 FEBRUARY 2009
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. Mr Michael John Szita purports to appeal from a decision of a Federal Magistrate.  On 29 September 2008, Federal Magistrate Connolly dismissed proceeding number MLG962 of 2008 in that court.  Details of the proceeding are set out in paragraphs 4-7 of the affidavit sworn by Mr Bradley O’Brien in support of a notice of motion in which the respondent seeks to have the proceeding dismissed.  Mr O’Brien deposes that, on 4 August 2008, Mr Szita filed an application in the Federal Magistrates Court seeking the following orders:

   1.That the Official Receiver for the District of New South Wales accept the Statement of Affairs of the Applicant, as of the date of the date stamp, that being 11 August 2006, in accordance with s 54(1)(a) of the Bankruptcy Act 1966 (Cth).

   2.Costs.

2. On 22 August 2008, he filed an amended application in the proceeding seeking an order that Michael John Szita, a juristic person, be provided with legal counsel at public expense.  The applications were listed for hearing on 25 August 2008.  There was no appearance by Mr Szita on that day and Registrar Caporale dismissed the application.  On 10 September 2008, the applicant filed an interim application in proceeding MLG962 of 2008.  On 29 September 2008 Federal Magistrate Connolly dismissed all the applications made by Mr Szita.  His Honour’s formal orders were that all extant applications of Mr Szita be dismissed and that the applicant, Mr Szita, pay the respondent’s costs fixed in the sum of $500.  The principal reason that the orders were made by his Honour was that Mr Szita did not appear. 

3. On 17 October 2008, Mr Szita filed a notice of appeal from the decision of Federal Magistrate Connolly.  The matter was listed for directions before me on 12 December 2008.  The applicant did not attend.  I adjourned the directions hearing until today. 

4. By notice of motion dated 2 February 2009, the respondent seeks an order that the purported appeal be dismissed with costs.

5. When the matter was called on a gentleman who identified himself only as Michael purported to appear on behalf of Mr Szita.  Michael said that he had not been admitted as a barrister or solicitor of any court in this country, but that he was legally knowledgeable.  I declined to entertain any further submissions from him in the absence of him being properly identified and any proper material being presented which established that he had authority to act for and on behalf of Mr Szita.

6. The decision of the Federal Magistrate was plainly interlocutory.  I refer to the authorities collected by Reeves J in SZIBD v Minister for Immigration and Citizenship [2008] FCA 429 at [15]. It is, therefore, necessary that the applicant seek leave to appeal from the Federal Magistrate’s decision and that that application be successful before any appeal can be entertained by this Court. No such application for leave has been made. More significantly, however, is the fact that the purported appeal is misconceived and inappropriate because Mr Szita has not first made application to the Federal Magistrates Court to set aside the Magistrate’s decision: see SZIBD and particularly at paragraphs [17]-[19].

7. The proper course is for the applicant to seek to persuade the Federal Magistrates Court that there was an appropriate explanation for his non-appearance and that the exercise of that Court’s discretion to set aside its order is warranted.  The respondent’s solicitor referred the applicant to the decision in SZIBD and provided him with a copy of it under cover of a letter dated 2 December 2008.  In these circumstances the application by the respondent that the appeal be dismissed should be granted.  The appeal will be dismissed with costs.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.

Associate:

Dated:        13 February 2009

Counsel for the Respondent:	Ms S Thompson (solicitor)
Solicitor for the Respondent:	Australian Government Solicitor

Date of Hearing:	6 February 2009
Date of Judgment:	6 February 2009