Wondal v Inspector-General in Bankruptcy

[2019] FCA 289

FEDERAL COURT OF AUSTRALIA

Wondal v Inspector-General in Bankruptcy [2019] FCA 289

Appeal from:

Wondal v Inspector-General in Bankruptcy [2018] FCA 1278

File number:

NSD 1703 of 2018

Judge:

RARES J

Date of judgment:

22 February 2019

Legislation:

Administrative Appeals Tribunal Act 1975 (Cth) s 44

Federal Court Rules 2011 rr 4.12, 5.22, 36.01, 39.05

Date of hearing:

22 February 2019

Registry:

New South Wales

Division:

General Division

National Practice Area:

Commercial and Corporations

Sub-area:

General and Personal Insolvency

Category:

No Catchwords

Number of paragraphs:

14

Counsel for the Appellant:

The appellant appeared in person assisted by an interpreter

Counsel for the Respondent:

Mr D W Rayment

Solicitor for the Respondent:

Australian Government Solicitor

ORDERS

NSD 1703 of 2018

BETWEEN:

SUSIANI WONDAL

Appellant

AND:

INSPECTOR-GENERAL IN BANKRUPTCY

Respondent

JUDGE:	RARES J
DATE OF ORDER:	22 FEBRUARY 2019

THE COURT ORDERS THAT:

1.The appeal be dismissed as incompetent.

2.The appellant pay the respondent’s costs.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)

RARES J:

1. On 27 November 2018, on the application by the Inspector-General in Bankruptcy, the respondent, I ordered that the “Amended Notice of appeal” be struck out as not disclosing any arguable ground of appeal.  I granted Susiani Wondal, the appellant, leave to file and serve a further amended notice of appeal that complied with the requirements of r 36.01 of the Federal Court Rules 2011, on or before 29 January 2019. 

2. Ms Wondal filed nothing.  On 12 February 2019, the Registry emailed the parties that my attention had been drawn to Ms Wondal’s default in compliance with the order granting her leave to file a further amended notice of appeal.  The email enquired whether there was any reason why the appeal should not be dismissed as incompetent and Ms Wondal ordered to pay costs.  The email said that such an order would be made on 13 February 2019 unless good cause were shown. 

3. In an email sent to the Registry early on 13 February 2019, Ms Wondal had explained that she had not seen a final version of the orders made on 27 November 2018.  However, the Registry, unfortunately, did not provide my chambers with that email until the next day and, in the meantime, I dismissed the proceeding in chambers as incompetent on 13 February 2019.

4. As soon as I became aware on 14 February 2019 that Ms Wondal had responded in time and wanted to explain what had happened, I vacated the orders of 13 February 2019, because they had been made in her absence under r 39.05(a), and listed the matter for case management on 15 February 2019. Ms Wondal later indicated on 14 February 2019 that she was not well enough to come to the Court on that day, and I stood the matter over to today.

5. Today she has represented herself with the assistance of an interpreter and has explained to me that she wanted to have the Court order that a lawyer be provided to assist her.  Ms Wondal said that she had attempted to engage a number of lawyers but, effectively, each of them was too expensive and she had not been able thus far to draft anything.  She said she could not prepare by herself a proper notice of appeal from the decision of Bromwich J given on 24 August 2018.

6. His Honour had dismissed her appeal from the decision of the Administrative Appeals Tribunal on a question of law under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). A delegate of the Inspector-General had refused to grant Ms Wondal an extension of time to review the remuneration claimed by her trustee in bankruptcy, which she had filed 24 days later than the 28 days allowed after she had received notification of the trustee’s claim. The Tribunal affirmed the delegate’s decision. His Honour appointed pro bono counsel to argue Ms Wondal’s case before him and acknowledged the able assistance of counsel who did so. 

7. Having read his Honour’s reasons prior to the hearing on 27 November 2018, I was unable to perceive any arguable error that would merit a pro bono referral to another counsel, under r 4.12, to articulate grounds of appeal.

8. In her struck out amended notice of appeal filed in the Court, Ms Wondal’s grounds were, simply, that the trustee had charged too much for his remuneration and that her lawyer had given her the wrong date to appeal to the Tribunal to review the Inspector-General’s delegate’s decision.  Those grounds did not articulate any basis on which to perceive any error in the primary judge’s careful and detailed consideration of the arguments presented by Ms Wondal’s pro bono counsel and his Honour’s reasons for dismissing those arguments.  For that reason, I struck out the amended notice of appeal on 27 November 2018 as disclosing no arguable ground of appeal.  However, I considered that it was in the interests of justice that Ms Wondal be granted one further opportunity to articulate an arguable case as to why the primary judge may have erred in his consideration of her case. 

9. Ms Wondal has not filed anything at all in the Court since 27 November 2018.  In particular, she was in default of having a notice of appeal, because she did not avail of the leave to file one pursuant to order 2 made on 27 November 2018.  She was present in Court when I made the order and I was and am satisfied that she fully understood the times that I had given her to comply with her obligation to file a notice of appeal and the consequences if it were not filed by 29 January 2019. 

10. I accept that Ms Wondal did not receive a sealed copy of the orders, but she has never suggested that she did not understand her obligation. Indeed, her attempts to engage lawyers, about which she told me from the bar table, demonstrated that she was aware of her obligation to file a notice of appeal that complied with r 36.01 if she wanted to maintain the appeal in the Court.

11. The position is, simply, that on the material before me, first, Ms Wondal is in default of her obligation as a party invoking the appellate jurisdiction, including in failing to avail of the leave in order 2 made on 27 November 2018, because she has not filed and served a further amended notice of appeal.  Secondly, there is nothing before me to suggest that she has, apart from feeling disappointed in his Honour’s decision, any basis to challenge it in a notice of appeal that could possibly be filed in the Court. 

12. That being so, there is no utility in permitting the appeal that is currently bereft of any articulation to remain in the Court.  It must be dismissed as an abuse of process of the Court because it does not have any articulated foundation, and there is the complete absence of any material before me to suggest that Ms Wondal has an arguable basis on which an appeal might be brought. 

13. Accordingly, the appeal should be dismissed both under r 5.22(b) and (d). Ms Wondal failed, first, to comply with r 36.01 by filing an amended notice of appeal that complies with the Rules for which she had leave to file on or before 29 January 2019 and, secondly, to prosecute the appeal with due diligence.

    Conclusion

14. I will order that the appeal be dismissed with costs.

I certify that the preceding thirteen (14) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

Associate:

Dated:       5 March 2019