Doggett v Commonwealth Bank of Australia

1. Grounds 1, 2, 5, 7, 8, 11, 12, 13, 14, 15, 16, 17, 18, 19 and 20 of the appellants' Notice of Appeal be struck out.
2. The respondent's interlocutory application dated 9 April 2018 otherwise be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

DAVIES J: 1 The respondent ("CBA") has applied to have the appellants' appeal dismissed as incompetent pursuant to r 36.72 of the Federal Court Rules 2011 (Cth) ("the Rules"), or alternatively pursuant to r 36.74 of the Rules for failure to comply with directions of the Court. The appeal is from the decision of O'Callaghan J in Commonwealth Bank of Australia v Doggett [2017] FCA 1176 dismissing the appellants' application for review of the orders made by a Registrar that their estates be sequestrated under the Bankruptcy Act 1966 (Cth). 2 The appellants are self-represented and at a case management hearing on 15 December 2017 the Court referred the appellants for legal assistance under r 4.12 of the Rules and made an order for the filing and serving of an amended notice of appeal by 23 February 2018. The appellants did not file an amended notice of appeal by that date and by an email sent on 26 February 2018 advised CBA's solicitors that they had decided not to amend their notice of appeal. The next case management hearing was held on 2 March 2018 and pro bono counsel appeared that day for the appellants. Counsel advised that he was awaiting instruction from the appellants and the Court further extended the date for the filing and serving of an amended notice of appeal to 26 March 2018. No amended notice of appeal was ultimately filed. 3 CBA's application is supported by an affidavit of Brendon Robert Watkins, the solicitor for CBA. At paragraphs [6]-[8], Mr Watkins outlined the basis upon which it is contended that the appeal is not competent as follows: First, the Respondent submits that the Notice of Appeal is untenable, in that it does not identify any appealable error in the primary judge's judgment. By way of summary, the Notice of Appeal appears to assert the following: (a) that there are "serious allegations of inconsistencies and maladministration with the whole application process" (per ground 7); (b) the perceived attitude of the primary judge (per grounds 2, 5, 6, 10 to 12, 15, and 18 to 20); and (c) that crucial evidence was ignored by the primary judge (per grounds 3, 4, 14 and 18). Despite the broad-ranging nature of these assertions, the Notice of Appeal fails to reference any specific conduct by the primary judge or specific piece of evidence that was improperly ignored. The Notice of Appeal is in several instances vague and contradictory, and therefore difficult to respond to. The Notice of Appeal is best described as a commentary by the Appellants or, at best, a submission.· It fails to specifically state the grounds relied upon in support of the appeal, as required by Federal Court rule 36.01(2)(c). 4 The appellants have the burden of establishing the competency of their appeals: see r 36.72(2) of the Rules. By virtue of r 36.72(5) of the Rules, if the Court decides that the appeal is not competent the appeal must be dismissed. 5 As the authorities show, an appeal may be incompetent if the notice of appeal is incomprehensible or entirely unrelated to the issues dealt with in the judgment being appealed. However, the mere fact that a notice of appeal is prolix and not in compliance with r 36.01 of the Rules stipulating the form of notice of an appeal does not suffice to establish incompetence: Zegarac v Dellios [2007] FCAFC 58. In determining whether one or more grounds of appeal are incomprehensible, it is appropriate to approach the task as one of determining whether the notice of appeal, as a matter of substance, specifies appealable errors: Singh v Owners Strata Plan 11723 (No 3) (2012) 207 FCR 390 at [31]. 6 There are 20 grounds of appeal. Taking that approach and reading the notice of appeal as a whole, I do not consider that the notice of appeal is incomprehensible and fails to identify any appealable error, though I do accept that some grounds are entirely unrelated to the issues dealt with in the judgment. One of the issues before the primary judge was whether the Court should go behind the judgment in the Supreme Court proceeding upon which the bankruptcy notice was founded. The primary judge refused to go behind the judgment and, in my view, grounds 3, 4, and 6, considered together, are sufficiently comprehensible to identify, as a matter of substance, that the appellants are challenging the Court's refusal to go behind the judgment. It is also sufficiently clear from the document, in my opinion, that the appellants are alleging bias or apprehended bias by the primary judge. This is apparent from grounds 6, 9 and 10. 7 The grounds as pleaded have obvious deficiencies and the notice of appeal does not comply with r 36.01 of the Rules. However, the issue on the application for summary dismissal is whether any appealable error is identified and I do not think that it can be said that the grounds considered as a whole are incomprehensible and raise no appealable ground. The pleading deficiencies do not by themselves warrant the appeal being dismissed pursuant to r 36.72 and the respondent has not relied in the alternative on s 31A of the Federal Court of Australia Act 1976 (Cth) for summary dismissal on the basis that those grounds have no reasonable prospect of success or are an abuse of process. However, grounds 1, 2, 5, 7, 8, 11, 12, 13, 14, 15, 16, 17, 18, 19 and 20 should be struck out as either entirely unrelated to the issues dealt with in the judgment or as not raising any appealable error in the judgment. 8 I am also not disposed to dismiss the appeal under r 36.74(1)(a) for non-compliance with the directions of the Court. There is little doubt that the timely hearing of the appeal has been delayed by the provision of time given to the appellants to file an amended notice of appeal in compliance with the Rules, but the non-compliance is explained by the decision of the appellants that they would not be filing an amended notice of appeal, which they communicated to CBA's solicitors very shortly after the first extended date for compliance. This is also not the type of case where there has been inordinate unexplained delay caused by a failure to comply with the timetable for the timely hearing and determination of the appeal. 9 Accordingly, there should be an order striking out the paragraphs identified in paragraph 7 and otherwise the CBA's interlocutory application dated 9 April 2018 should be dismissed. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies.