Mahmoud v Owners Strata Corporation Strata Plan 811

REASONS FOR JUDGMENT 1 This is an application filed in the court on 13 June 2006 by the applicant, Mr Mahmoud, who has applied for leave to appeal from the judgment of Federal Magistrate Barnes handed down on 23 May 2006. Mr Mahmoud has appealed against this decision which concerned a sequestration order. 2 On 23 May 2006, Federal Magistrate Barnes made seven orders following the dismissal of Mr Mahmoud's application for interim orders. These orders were, first, that the matter be listed for hearing on 1 August 2006; second, that the applicant file and serve evidence relating to the annulment application by 30 June 2006; third, that the Official Trustee file and serve a report for the annulment application by 14 July 2006; and fourth, that any other evidence in reply by any party be filed and served by 21 July 2006. The fifth order directed the applicant to serve copies of all material filed by him on the applicant creditor in the proceedings SYG 1034/2005 at a specified address. The sixth order granted liberty to apply on two days notice in the event of default of compliance. The seventh ordered the applicant to pay the costs of the Official Trustee as agreed, and, in the absence of agreement, that the costs be taxed. 3 The application before me is an interlocutory application in relation to an appeal from a Federal Court Magistrate. As such, it is necessary for cause to be shown why leave should be granted to make an appeal to this Court. The test applied by the Court in relation to these matters is well-known and set out in the case of Décor Corporation Pty Ltd v Dart Industries (1991) 33 FCR 397. In determining whether leave from an interlocutory decision should be granted, the Court must determine whether, in all the circumstances, the decision below is attended by sufficient doubt to warrant it being reconsidered by the Court, and whether substantial injustice would result if leave were refused, supposing the decision at first instance was wrong. 4 At the hearing before me, Mr Mahmoud stressed a similar point to that stated in his affidavit filed 13 June 2006 on which he bases his application for leave to appeal and seeks to contest the directions by the Federal Magistrate. He argues that because a representative of the Insolvency Trustee Services Australia ("ITSA") was present at the hearing before the Federal Magistrate, the decision of the Magistrate should be set aside because ITSA did not have any status to attend the hearing. 5 Before the learned Magistrate, the questions relating to the proceedings were argued. Mr Mahmoud had a full opportunity to ventilate his case and the Magistrate then made a decision in relation to the interlocutory question. In this situation Mr Mahmoud had a full opportunity to make his submissions and make out his case, and a ruling was made in relation to them. In these circumstances, I do not consider that an appeal in this matter would have any reasonable prospect of success based on grounds raised to the effect that the proceedings before the Magistrate were invalid due to the presence of ITSA. The principles of natural justice, in my view, were satisfied by Mr Mahmoud having a full opportunity to put his case on that occasion. 6 In these circumstances, I am not satisfied that the decision below is attended by sufficient doubt to warrant its being reconsidered. In considering the question of whether substantial injustice would result if leave were refused, supposing the decision to be wrong, I am not persuaded that in that position substantial injustice would follow because the matter can still proceed to a full hearing and Mr Mahmoud will have ample opportunity to present his case. 7 Accordingly, I refuse the application for leave to appeal the decision and orders of Federal Magistrate Barnes made on 23 May 2006. I order that the applicant pay the costs of the Owners Strata Plan Number 811 in this matter. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.