Francis v Eggleston Mitchell Lawyers Pty Ltd

REASONS FOR JUDGMENT 1 The respondent to this appeal has applied under r 36.74 of the Federal Court Rules 2011 for the dismissal of the appeal on account of the appellant's failure to comply with a direction of the court, her failure to comply with the Rules and her failure to prosecute the appeal. There was no application served upon the appellant as required by subr (2), but counsel for the respondent has sought that I excuse that omission upon the ground that the appellant was served with the respondent's outline of submissions, which contained a clear articulation of the respondent's intention to apply under r 36.74 this morning. 2 In an affidavit sworn by the appellant this morning and filed in court, the appellant has addressed the respondent's foreshadowed application under r 36.74. The view I take is that the appellant is at no disadvantage from not having had a formal application served upon her as required by sub-rule (2). I shall order in accordance with that view. 3 Turning to the substance of that application, it is necessary to commence with a brief narrative of the proceeding which led to the institution of this appeal, and of the course of the appeal itself in this court. The appellant was the respondent to a bankruptcy petition which came before a Registrar of the court, who made a sequestration order on 25 July 2011 in respect of the appellant. The appellant applied for a review of that order to the Federal Magistrates Court, and, after a number of adjournments, that application was heard and determined adversely to the appellant on 6 October 2011. The Federal Magistrate affirmed the sequestration order made by the Registrar. 4 On 27 October 2011, the appellant appealed to this court from the order of the Federal Magistrate. That appeal came before Gray J at the callover on 7 February 2012. His Honour made a series of conventional orders to put the appeal in a condition in which it could be heard and determined by a single Judge of the court. It seemed that his Honour took a particular view about the Notice of Appeal, which caused him to give the appellant leave to file and serve an amended notice of appeal on or before 21 February 2012. That was 14 days after the date of his Honour's order. His Honour also ordered, in accordance with the applicable practice note, that, no later than 4:00 pm 20 business days before the hearing of the appeal, the appellant file and serve on the respondent her outline of submissions. His Honour made orders for the respondent likewise to file its outline, and for the appellant to have an opportunity to file and serve submissions in reply. His Honour ordered, in accordance with the practice note, that the appellant file and serve the appeal book not later than 4:00 pm five business days before the hearing of the appeal. 5 The appellant appears to have taken the view that Gray J's order at the callover would have required her to file and serve her outline on or before 2 April 2012, but, by my calculation, with the intervention of Easter and Anzac Day, that obligation fell due on 29 March 2012. However that may be, it is clear that no outline of submissions was filed by the appellant, even by the later of those dates. Indeed, none has been filed to this day. 6 During the period that ought to have been relevant for the appellant's preparation of her submissions, the appellant was represented by Evans Ellis. In her affidavit sworn today, the appellant said the following: Evans Ellis sent me an email at 2.18 pm on 29 February 2012 demanding moneys be deposited with them by 5.30 pm that day or they would cease acting. As I did not get their message until later that day they ceased acting. I've requested my files many times but they have not responded to my emails nor made any contact since 12 March 2012. According to the appellant's affidavit, what next happened was that on 19 March 2012 she was given a referral to a solicitor called Clemens, and he referred her to a firm called Pasha Legal. The appellant next states that on 29 March 2012 she had a phone conference with Hina Pasha from that firm, and arranged to meet her the following day. That conference took place as arranged, and Ms Pasha was retained to act as the solicitor for the appellant. Notwithstanding that retainer, neither an amended Notice of Appeal nor any outline of submissions was or were filed on behalf of the appellant. 7 According to the appellant's affidavit, she did not have an entirely satisfactory experience with her representation by Pasha Legal, but, in the absence of that firm to defend itself against the allegations contained in the appellant's affidavit, I think it inappropriate that I say anything further on that subject. The upshot was that on 23 April 2012 Pasha Legal ceased to act for the appellant, and she has appeared herself, on the appeal as such, this morning. Needless to say, an index of the appeal book was never prepared and the appeal book itself was never filed. 8 In the view I take of the matter, the grounds exist for the court to exercise its jurisdiction under r 36.74. The appellant did not comply with the direction given at the callover that she file her submissions not later than 20 business days before the hearing of the appeal, or with the direction that she file and serve the appeal book. Indeed, there has been no compliance with those directions to this day. The first of those omissions is reflected also in a failure to comply with r 36.55, which requires the outline of submissions and a chronology to be filed and served not later than 20 business days before the hearing of the appeal. Manifestly, the grounds have also been established under so much of the rule as requires an appellant to prosecute his or her appeal. 9 I understand that the appellant claims to have had difficulties with both of the firms of solicitors which have represented her, and, if what she has said in her affidavit is to be taken at face value, she has encountered difficulties engaging any legal representative to handle her appeal. As I explained to her during the course of argument, I find this a difficult notion to understand, as she made it quite clear that inability to pay for legal representation is not an issue. Indeed, the point upon which she would apparently wish to submit that the Federal Magistrate was in error is that her Honour failed to perceive, in the means and the general asset situation of the appellant, a condition of solvency which ought to have been self-evident. So I cannot treat this as a case of an impecunious litigant who would be denied justice as a result of being unable to afford proper representation. Some glimmer of the difficulties faced by the appellant might be perceived in so much of her affidavit as refers to the original firm, Evans Ellis, threatening that they would cease acting unless monies were deposited on trust with them. Those are, however, matters upon which I do not intend to enter any further, as they essentially involve the relationship between the appellant and her professional advisers from time to time. 10 There are two things which ought to be placed on the scales in favour of the respondent on the present application, additionally to the circumstance that the grounds for the exercise of the discretion under r 36.74 have clearly been made out. The first is that the appellant has, in a sense, had two previous hearings on the question whether a bankruptcy order ought to be made in respect of her estate. The first was a hearing before the Registrar, and the second was a hearing before the Federal Magistrate. Each of those hearings was a hearing de novo, as it were, that being the nature of the Federal Magistrate's jurisdiction on a review from the Registrar. The appellant has, therefore, had the opportunity of having her opposition to the sequestration proceeding fully tested, and the opportunity to place both her evidentiary and her persuasive case before an appropriate judicial officer. 11 The second circumstance is that this is a bankruptcy proceeding, and the continuation of reviews and appeals of itself will have an effect, not only upon the creditors of the appellant's estate, but also, assuming the appellant, as she claims, to be sufficiently resourced to satisfy those creditors, upon the residue that is left for her. Inevitably, each time at least an unsuccessful application or proceeding is conducted on behalf of the appellant, costs will come from the estate to the detriment of all concerned. Counsel for the respondent has quite properly pointed out that there is no capacity for the court to make an order in the nature of security for costs, the result of which is that the very fact of having proceedings drawn out by adjournments and by difficulties in meeting time lines, will work to the substantive disadvantage of creditors of the appellant herself. 12 I have read, although not closely studied, the reasons of the Federal Magistrate, and they appear to me to be unexceptionable, although I emphasise that I have not had the benefit of submissions from the appellant as to the errors by which those reasons are said to have been attended. As Gray J was not, neither am I assisted in this regard by the terms of the unamended notice of appeal, which is still the only document by reference to which either the court or the respondent would be able to derive some indication of the errors in her Honour's reasons, to which the appellant might wish to refer. 13 I take into account the difficulties which the appellant claims to have encountered, as set out in her affidavit sworn today, and I recognise that in an appropriate case difficulty securing professional representation might constitute a discretionary consideration of some force in the circumstances of an application to dismiss an appeal under r 36.74. However, there are some aspects - even of the appellant's explanation of her difficulties - which give cause for disquiet as to the extent of her inability to prosecute her own appeal arising from those difficulties, particularly within the period when she was unrepresented subsequent to about 12 March 2012. The appellant ought to have realised that the orders made by Gray J required submissions to be filed by a date which was then imminent. I am not disposed to exonerate the appellant's failure to comply with those orders simply by reference to the evidence she has given as to attempts that she made during that time to secure representation. There was, for example, a period of time between 12 March and 19 March which remains unexplained in the appellant's affidavit, and a period of time between 19 March and 29 March which likewise remains unexplained. Given that the submissions themselves were due, on my calculations, on 29 March 2012, this should have been a period in which the appellant was acting with somewhat more urgency than is apparent from her affidavit, and the fact that she was without representation at that time ought to have made the events in question more pressing rather than, as appears to have been the case, less so. 14 Taking everything into account, the grounds for the court to act under each of subparagraphs (a), (b) and (d) of subr (1) of r 36.74 have been established, and the various discretionary considerations dispose me to the view that the power to dismiss the appeal ought to be exercised on those grounds in this case. That is the course which I propose to adopt. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.