Maher v Commonwealth Bank of Australia

REASONS FOR JUDGMENT 1 The Court has brought on, of its own motion, the issue of whether this proceeding should be dismissed on the basis that the appellant has failed to prosecute the appeal with due diligence: O 35A r 2(1)(f) and r 3(1)(a) of the Federal Court Rules 1976 (Cth). 2 On 15 August 2008, Federal Magistrate Phipps made a sequestration order against the appellant. On 20 January 2009, Registrar Burns made an order requiring the appellant to provide security for costs in relation to the appeal and staying the appeal until such security was provided or further order. 3 The appellant sought a review of the order for security for costs. On 16 December 2009, Bromberg J dismissed the application for review. Nothing at all has been done to prosecute the appeal since then. That is around 11 months of entire inaction. 4 On 14 October 2010, the Court wrote to the appellant indicating that the matter would be listed today to consider whether the appeal should be dismissed because the appellant has failed to prosecute the matter with due diligence. In response to that letter, the appellant was today represented by a solicitor. 5 The order for dismissal was resisted on the basis that the original judgment on which the bankruptcy notice was issued is a nullity. There was no evidence indicating why no action had been taken for 11 months, or why the security for costs had not been paid. The purpose of the order for payment of security for costs was to put a condition upon the appellant's ability to further prosecute the appeal. Today was not the occasion for the appeal to be argued. Nonetheless, that appears to have been the purpose of the submission of the solicitor for the appellant. 6 In view of the fact that nothing has been done by the appellant to prosecute the proceeding for 11 months, that no explanation has been offered today by his solicitor for this failure, and no application was made to adjourn the matter in order to provide such information, the grounds for dismissal are made out. Should the appellant wish to prosecute his arguments against the making of the sequestration order, he is, subject to questions of estoppel, Anshun estoppel and abuse of process, entitled to do so in some other action. However, his dilatoriness in prosecuting this appeal has reached a stage where it would be unconscionable for the matter to remain as an active appeal in the Court. Consequently, the order of the Court will be that the appeal is dismissed. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.