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[2004] FCA 1441
Federal Court of Australia
2004-09-27
Finkelstein J, Heerey J, North J
Original judgment source is linked above.
Maher v Commonwealth Bank of Australia [2004] FCA 1441 PRACTICE AND PROCEDURE - no issue of principle DENNIS MAHER v COMMONWEALTH BANK OF AUSTRALIA, GREG FIRTH, GRAY & JOHNSON (A FIRM), REGISTRAR OF TITLES (Victoria) and OFFICIAL TRUSTEE IN BANKRUPTCY V 204 of 2001
AND: COMMONWEALTH BANK OF AUSTRALIA, GREG FIRTH, GRAY & JOHNSON (A FIRM), REGISTRAR OF TITLES (Victoria) and OFFICIAL TRUSTEE IN BANKRUPTCY Respondents AND BETWEEN: AND: COMMONWEALTH BANK OF AUSTRALIA Cross Applicant JUDGE: NORTH J
DATE OF ORDER: 27 SEPTEMBER 2004
THE COURT ORDERS THAT: 1. The notice of motion filed on 2 February 2004 is dismissed. 2. The applicant pay the costs of and incidental to the notice of motion of the first, second and third respondents, including reserved costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
AND: COMMONWEALTH BANK OF AUSTRALIA, GREG FIRTH, GRAY & JOHNSON (A FIRM), REGISTRAR OF TITLES (Victoria) and THE OFFICIAL TRUSTEE IN BANKRUPTCY Respondents AND BETWEEN: AND: COMMONWEALTH BANK OF AUSTRALIA Cross Applicant JUDGE: NORTH J
DATE OF ORDER: 27 SEPTEMBER 2004
REASONS FOR JUDGMENT 1 Before the Court is a notice of motion filed by Mr Dennis Maher, the applicant, on 2 February 2004 in which he seeks leave to appeal decisions of Finkelstein J of 22 and 30 January 2004. On those dates Finkelstein J refused the continuation of a referral of the applicant's application for pro bono assistance. 2 It is necessary to set out briefly some of the history of this matter. The proceeding in which the notice of motion was filed was a claim by the applicant against the Commonwealth Bank of Australia, the first respondent, by which the applicant sought to enforce his alleged right to stay in a property over which the first respondent sought possession. The applicant had the benefit of a referral for pro bono assistance in the matter, but the barrister holding the brief and the applicant 'parted company' that gave rise to the application for a renewal of the referral, which Finkelstein J refused. 3 The present motion first came before me on 3 February 2004. It was adjourned until 15 March 2004 to allow the applicant to file and serve any affidavits on which he sought to rely. On 4 February 2004, a cross-claim by the first respondent was heard by Finkelstein J. The applicant did not appear. As a result, on 5 February 2004, Finkelstein J gave judgment for possession in favour of the first respondent. The applicant's claim was dismissed. 4 On 6 February 2004, the applicant applied to Finkelstein J to set aside the judgments of 5 February 2004. Finkelstein J determined that his judgment for possession in favour of the first respondent would remain on foot, but he set aside the judgment dismissing the applicant's claim on condition that the applicant pay the respondents' costs, the amounts of which were fixed by his Honour. 5 On 29 March 2004, the notice of motion again came on for hearing before me. The time by which Finkelstein J had provided that the applicant was to pay the respondents' costs had not yet arrived. Accordingly, I adjourned the matter to see whether the applicant would comply with the conditions. I said that if he failed to comply, there would seem to be no purpose in pursuing the notice of motion, because the pro bono assistance was designed to assist him to conduct the trial of the proceeding to which the costs condition related. Without payment of the costs the proceeding would not remain on foot and there would be no point in pursuing the application for leave to appeal. 6 On 11 May 2004, the applicant applied to Heerey J for an extension of time within which to appeal against the judgments of Finkelstein J of 5 February 2004. Heerey J refused to grant the extension of time. On 8 June 2004, the first respondent took possession of the property. On 18 June 2004, the applicant applied to the High Court for prerogative relief against the first respondent and the sheriff seeking orders to quash the decisions made by Finkelstein J. That application was rejected. Presently therefore, it appears there is no proceeding on foot in relation to the matters arising out of the original proceeding. 7 I would dismiss the application made by the applicant in the notice of motion filed on 2 February 2004 for three reasons. First, the reference under the pro bono scheme is not appealable. It is an administrative action taken where the case of a litigant warrants the attention of the Victorian Bar. It has no binding effect. It achieves nothing more than notifying the Victorian Bar of a case that deserves attention. It is part of a system devised by cooperation between the Court and the Bar. It does not give rise to enforceable rights. 8 Secondly, if I am wrong with respect to the pro bono scheme, it is apparent from the history of this matter that there is no purpose to a grant of leave. The proceedings to which the reference would apply have been concluded. 9 Thirdly, even if the two prior bases are not sustainable, the applicant has not demonstrated, as I asked him to do early in the proceeding, the error he says Finkelstein J made in refusing the continuation of the reference. This is a critical factor for the establishment of leave to appeal. If the refusal of the continuation of the pro bono reference is appealable, the applicant must demonstrate that an error appropriate for the consideration of an appeal court has been made. The applicant has not done this. That is an independent ground for refusing his application. 10 The applicant applied to amend the notice of motion to seek a further reference for pro bono assistance, apparently to take some other step in the tangled web woven by these proceedings. There is no formal application for that purpose, nor has any notice been given to the respondents. In those circumstances I have refused to entertain the application. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.
Maher
Commonwealth Bank of Australia