Calpis v Fleming [2025] FCAFC 154

Federal Court of Australia (Full Court)|2025-11-06|Before: Stellios JJ

The appeal be dismissed.
The respondent's costs be taxed and paid from the appellant's bankrupt estate as a priority in accordance with the Bankruptcy Act 1966 (Cth).
The respondent provide a copy of these orders to the trustee of the appellant's bankrupt estate.
The appellant's solicitors (who remain on the record) provide a copy of these orders to the appellant.

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

We had been seeking instructions from the Appellant for some time regarding timetabling and preparation for hearing. Our retainer, and that of counsel briefed in the matter, has now been terminated. We have also attempted to firm our instructions regarding the status of tomorrow's appearance, although the status quo remains that we are instructed not to appear before the Court tomorrow, and the indication is that our former client does not intend to appear either.

The proceedings were listed for hearing today and the appellant has not appeared. A representative of the appellant's solicitors attended Court and confirmed that the position was as communicated in the email sent to the Court on the eve of the appeal. In those circumstances, the matter was called outside the Court to ascertain if the appellant was present in person. The appellant did not appear.
The respondent moves the Court for the appeal to be dismissed.
Taking into account the circumstances which we have outlined above, it is appropriate to dismiss the appeal pursuant to r 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth).
We are satisfied that it is appropriate to make an order dismissing the appeal by reason of the appellant's failure to appear. In the circumstances which have arisen, we infer that the appellant does not intend to pursue the appeal and for that reason has instructed his solicitors not to appear. The appellant's stance is confirmed by the fact that there has been no positive step taken by the appellant to comply with the Court's orders to ready the appeal for hearing and by the fact that he has not appeared today.
We are satisfied that the appellant being on notice of the hearing date has abandoned this appeal. Accordingly, it is a proper exercise of discretion and in the interests of justice that the appeal be dismissed with costs. We will make orders accordingly.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Banks-Smith, Cheeseman and Stellios.

At a glance

Court

Decision date

Before

Source

Judgment (6 paragraphs)

Parties

Legislation Cited (1)