Wilson, Allen John v Hollywood Toys (Australia) Pty Ltd

[1996] FCA 648

CATCHWORDS

PROCEDURE - appeal - application for proceeding or notice of appeal to be struck out as vexatious - whether Order 20 rule 2 of the Federal Court Rules applies to an appeal - meaning of "proceeding" in Order 20 rule 2 - definition in section 4 of the Federal Court of Australia Act 1976 - whether "Court" in Order 20 rule 2 includes a single Judge where the proceeding is an appeal - whether the proceeding or the notice of appeal should be struck out under Order 20 rule 2.

Federal Court of Australia Act 1976 section 4.
Federal Court Rules Order 20 rule 2, Order 52.

ALLEN JOHN WILSON & ANOR v HOLLYWOOD TOYS (AUSTRALIA) PTY LTD & ANOR

VG No. 149 of 1996

Olney J
Melbourne
18 July 1996

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIAN DISTRICT REGISTRY
GENERAL DIVISION  No VG 149 of 1996

ON APPEAL FROM A DECISION OF JUSTICE MERKEL

BETWEEN

ALLEN JOHN WILSON and JOY WILSON

Appellants

-and-

HOLLYWOOD TOYS (AUSTRALIA) PTY LTD
                  and JOHN FRANCIS TAAFE

Respondents

Coram:    Olney J

Place:    Melbourne

Date:     18 July 1996

REASONS FOR JUDGMENT
The appellants in this matter filed a document described as "Notice of Appeal" on 26 March 1996.   In it they assert that they appeal from the whole of the decision of Merkel J, given on 7 March 1996.   The notice contains a number of paragraphs which are described as grounds.

The respondents by motion filed 15 July 1996 seek an order that the appeal be dismissed as showing no arguable grounds of appeal or alternatively that the notice of appeal dated 26 March 1996 be struck out as disclosing no arguable grounds of appeal and as being vexatious.

The respondents by motion filed 13 June 1996 seek security for the costs of the appeal.   The latter motion was adjourned for hearing today by order of Ryan J made on 20 June 1996.
The respondents through counsel, have asserted an inability to make anything of the so called grounds, and I must confess that having made an attempt myself, I am left in the same position.   It is obvious that the grounds as asserted are completely meaningless and are incapable of providing any guidance to the Court or to the other parties as to the basis upon which the appellants seek to challenge the judgment.

Furthermore, it seems that the appellants are seeking to raise new matters by way of the appeal process.   If this were an ordinary pleading I would have no hesitation in striking it out as being vexatious.   The power of the Court under Order 20 rule 2 relevantly applies where in any proceeding it appears to the Court that in relation to the proceeding generally, the proceeding is frivolous or vexatious.   In those circumstances, the Court may order that the proceeding be stayed or dismissed generally or in relation to any claim for relief in the proceeding.

The rule I have just quoted refers to "any proceeding" and by virtue of the definition of "proceeding" in s 4 of Federal Court of Australia Act 1976 that term includes an appeal. The question is whether the term "Court" as used in O 20 r 2 in the case of an appeal includes a single Judge. I am of the view that a single Judge does have the necessary power to deal with the present application under O 20 r 2. I have reached this view because Order 52, which deals specifically with the appellate jurisdiction of the Court, defines "Court" for the purposes of that Order as being the Full Court; Order 52 makes no mention of a strike-out or dismissal procedure similar to Order 20 r 2, and I am of the opinion that the net result of this is that the provisions of Order 20 r 2, are intended to apply in the case of an appeal and the power may be exercised by a single Judge.

The motion also seeks an Order that the appeal be dismissed as to showing no arguable grounds of appeal.   In my opinion, the problem with the notice of appeal is that it is vexatious and accordingly, it is appropriate to exercise the power under Order 20 r 2.

The appellants have raised the question of whether or not the present motion was timely, given that on 20 June 1996 Ryan J gave leave to the respondents to file and serve by 11 July 1996 a motion returnable today seeking to strike out the notice of appeal.   The motion was in fact filed on 15 July 1996 and served on that day.   The period of time provided by the rules for hearing the motion today required service by the 15th, and in the circumstances there is nothing irregular about the motion being brought on today.   If it be thought necessary, I would be prepared to grant any dispensation that may be needed in order to comply with Ryan J's order, but I do not think it is necessary.

Order 20 r 2 provides for the striking out of the proceeding;  the proceeding in this case is the appeal, as distinct from the notice of appeal, which is in the nature of a pleading.  I think that if that power is exercised then that puts an end to the appeal, and in the circumstances, given the nature of the notice that has been filed and the failure of the appellants to seek leave to file an amended notice of appeal I am of the opinion that it is now time to put an end to this proceeding.

I propose therefore to order:

(1)that the appeal be struck out as being vexatious;

(2)that the appellants pay the costs of the motion filed on 15 July 1996 and of the appeal to date.  

In the circumstances the question for giving security for costs does not arise, and I make no order on the motion filed 13 June 1996.   I point out that I would have some difficulty in any event because there is inadequate evidence to justify me quantifying any order for security that I may have been minded to make.

I certify that this and the preceding 3 pages are a true copy of the Reasons for Judgment of the Honourable Justice Olney

Associate:

Dated:

Heard:    18 July 1996

Place:    Melbourne

Judgment: 18 July 1996

Appearances:

Mr S. Stuckey (instructed by Frederick Owen & Associates Pty) appeared for the respondent (moving parties).

Mr R. Kune (Instructed by Galbally & O'Brien) appeared for the appellant.