Vasiliou v Marchesi

[2006] FCA 37

FEDERAL COURT OF AUSTRALIA

Vasiliou v Marchesi [2006] FCA 37

APPEAL – application to extend time for filing appeal – where no realistic prospect of success

Bankruptcy Act 1966 (Cth) s 179

Gallo v Dawson (1990) 93 ALR 479 - cited

ANDREW VASILIOU V BRENDAN JOHN MARCHESI
VID 1545 OF 2005

MERKEL J
3 FEBRUARY 2006
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1545 OF 2005

BETWEEN:	ANDREW VASILIOU APPLICANT
AND:	BRENDAN JOHN MARCHESI RESPONDENT
JUDGE:	MERKEL J
DATE OF ORDER:	3 FEBRUARY 2006
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.        The application of the applicant for leave to appeal out of time is to be dismissed.

2.        The applicant pay the respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1545 OF 2005

BETWEEN:	ANDREW VASILIOU APPLICANT
AND:	BRENDAN JOHN MARCHESI RESPONDENT
JUDGE:	MERKEL J
DATE:	3 FEBRUARY 2006
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. On 20 October 2005, the primary Judge (Marshall J) dismissed an application by the applicant pursuant to s 179 of the Bankruptcy Act 1966 (Cth) (‘the Act’) for the removal of the respondent as his trustee in bankruptcy and ordered that the applicant pay the respondent’s costs of and incidental to the application: see Vasiliou v Marchesi [2005] FCA 1471.

2. As the orders were made on the basis of all of the material relied upon by the applicant, it is appropriate to treat them as final orders with the consequence that any appeal was to be filed within 21 days: see O 52 r 15(1) of the Federal Court Rules.

3. The applicant, who was self represented, did not file a notice of appeal within the required time.  Rather, on 28 November 2005 he applied for leave to appeal out of time.  Under O 52 r 15(2) the Court or a Judge ‘for special reasons’ may give leave to file and serve a notice of appeal out of time.

4. In Gallo v Dawson (1990) 93 ALR 479 at 480, McHugh J, citing Hughes v National Trustees Executors & Agency Co of Australia Ltd [1978] VR 257 at 262 observed that the discretion to extend time for an appeal was for ‘the sole purpose of enabling the court [or a judge] to do justice between the parties’ and stated, in that context, it is always necessary to consider the prospects of success. In that case, his Honour decided that the proposed appeal in the matter before him had no prospect of success with the consequence that leave to appeal out of time was refused.

5. The grounds of appeal in the draft notice of appeal were expressed as follows:

   “GROUNDS:

   1.The Court has not allow the applicant an adjournment to obtain further evidence required.

   2.The Court has ignored in principal the affidavit sworn by the applicant.

   3.The appeal is of public importance.

   ORDERS SOUGHT:

   1.To allow this…