Williams v JMD Electrics Pty Ltd

[2003] FCA 1133

FEDERAL COURT OF AUSTRALIA

Williams v JMD Electrics Pty Ltd [2003] FCA 1133

Williams Robert Williams v JMD Electrics Pty Ltd [2003] FCA 1132, followed

WILLIAM ROBERT WILLIAMS v JMD ELECTRICS PTY LTD

V 404 OF 2003

MARSHALL J
16 OCTOBER 2003
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V404 OF 2003

BETWEEN:	WILLIAM ROBERT WILLIAMS APPELLANT
AND:	JMD ELECTRICS PTY LTD RESPONDENT
JUDGE:	MARSHALL J
DATE OF ORDER:	16 OCTOBER 2003
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the respondent’s costs of the appeal.

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	V404 OF 2003

BETWEEN:	WILLIAM ROBERT WILLIAMS APPELLANT
AND:	JMD ELECTRICS PTY LTD RESPONDENT

JUDGE:	MARSHALL J
DATE:	16 OCTOBER 2003
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. This matter was heard at the same time as the appeal in V115/03 which involved the same parties. The appeal is from a judgment given by Hartnett FM on 28 April 2003, in which her Honour refused to disqualify herself from hearing an application by the appellant for an annulment of his bankruptcy on account of her refusal on 3 March 2003 to annul the appellant’s bankruptcy when an application was made for her to do so.

2. The notice of appeal defies belief. To illustrate why, I only need to set out in full paragraphs 3 and 4 thereof which deal with the grounds of the appeal and the orders sought. Those paragraphs are as follows:

   “3.      GROUNDS:

   A.Her Honour, Hartnett FM, declined or refused the application or request of the Appellant that she stand down or otherwise not hear the Application for Annulment because she had previously on 3^rd March 2003 heard a case of the Appellant and then ruled against him. This decision was incorrect and Hartnett FM should not have heard the case.

   B.Her Honour declined or refused to stand down or not hear the case because the earlier case was so similar in some respects and she had already ruled in the earlier case.

   C.Her Honour declined or refused to hear any of the matters listed in GROUND D. Of the NOTICE OF APPEAL in case No. V115/03 in this Honourable Court.

   D.Her Honour declined or refused to hear the Appellant’s Application for Annulment.

   E.        Her Honour failed to take proper or sufficient notice:

   ·    of the fact that the appellant did not receive the letter of Davies Moloney dated 23 January 2003 until after he returned from Queensland, by which time the sequestration Order had been made;

   ·    of the fact that the Appellant had applied for an adjournment of the proceedings of 4^th February 2003 and that the sequestration Order should not have then been made in the light of that application;

   ·    Of the fact that the Appellant had claimed that he had a substantial claim or cross claim or counterclaim against the respondent (section 40(g) Bankruptcy Act 1966);

   ·    Of the fact that the Appellant was self represented at the Magistrates’ Court at Melbourne in late 2000 and in the proceedings in the Federal Magistrates Court on 4^th February 2003; and that the Appellant obviously did not completely know what he should or should not do.

   F.        Her Honour was confused.

   G.Her Honour awarded costs against the Estate of the Appellant/ Applicant. This was incorrect.

   4.ORDERS SOUGHT

   a.All the same Orders as are sought in Appeal No. V115/03 in this Honourable Court.

   b.An order that the Appellant have leave to bring the Annulment Application made 6^th March 2003, File number MZ 222/03.

   c.An order that if Hartnett FM heard an Annulment application on 3^rd March 2003, such Annulment of the sequestration Order be now granted; Alternatively, an Order or Declaration that Hartnett FM did not hear an Annulment Application on 3rd March 2003.

   d.   Annulment of the sequestration order made 4^th February 2003.

   e.   Otherwise the setting aside of the sequestration order.

   f.Such further and other relief, orders directions and declarations as shall be just.”

3. For a reason which escapes me, the appellant conducted the appeal from her Honour’s decision on 28 April 2003 to refuse to disqualify herself as if the instant appeal contained no issues additional to those raised in the appeal just determined.  Accordingly, given my reasons in the judgment just delivered in Williams Robert Williams v JMD Electrics Pty Ltd [2003] FCA 1132, I see no basis to allow the appeal. It is dismissed with costs.

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

Associate:

Dated:             16 October 2003

Counsel for the Appellant:	Mr R Johnstone
Solicitor for the Appellant:	Johnstoneda
Counsel for the Respondent:	Mr J Fijalski
Solicitor for the Respondent:	Davies Moloney
Date of Hearing:	16 October 2003
Date of Judgment:	16 October 2003