Maroon v Aquamore Credit Equity Pty Ltd

1. The appeal be dismissed for want of prosecution.
2. The hearing fixed for the 15th of August be vacated accordingly.
3. The appellant pay the respondent's costs of and incidental to the appeal, in a lump sum to be fixed by a Registrar, if not agreed.
4. A Registrar send a copy of these orders forthwith to the appellant. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

LOGAN J: 1 By an order made on 17 July 2024, I ordered that the appellant show cause via appearance, and in reliance upon such affidavit evidence as she may be advised, at 9.30 am in Sydney today why her appeal should not be dismissed for: (a) failure to comply with directions; (b) failure to appear on 17 July 2024; and (c) want of prosecution. I further ordered that the registrar forthwith notify the appellant of that order and certify in writing forthwith thereafter as to compliance with that requirement. 2 The occasion for the making of that order was found in a want of appearance by or on behalf of the appellant on 17 July 2024. In turn, that particular hearing had been appointed in light of apparent failures by the appellant to comply with earlier case management directions. There has been no appearance today by or on behalf of the appellant. As for that matter there was on 17 July 2024, there has, however, been a communication to the registry by email by a Mr Chris Maroon, who describes himself as the appellant's son. Annexed to the communication sent this morning, at 2.35 am no less, is a report with a discharge date 17 July 2024 of Sydney Local Health District in respect of the appellant. 3 I consider that the contents of that report are admissible evidence under the Evidence Act 1995 (Cth). The report will therefore become Exhibit 1. That report does give substance to assertions which Mr Maroon makes in his latest email concerning the appellant. By that I mean there is evidenced in the Health District report an inpatient admission period in respect of the appellant between 14 July 2024 and 17 July 2024. 4 The occasion for that admission is described as mild headache, severe vertigo and fall with head strike with a principal diagnosis being post-traumatic bilateral posterior canal benign positional paroxysmal vertigo (BPPV). The health district report records a proposed future course of outpatient clinical treatment with an appointment scheduled for 31 July 2024, and a further appointment scheduled for 7 August 2024. In the summary of progress in the report, it is noted that the appellant was cleared by the physiotherapy team for discharge home on 17 July. Also to be noted in the report is a reference to the appellant's language spoken at home being Lebanese, but the word "no" being annotated to the interpreter-required part of the report. 5 The evidence found in that health district report does explain why it is that the appellant did not appear on 17 July 2024. What it does not do is explain why it is there was no appearance by or on her behalf today. Another noteworthy feature of the report is an absence of any reference to any ongoing cognitive difficulty on the part of the appellant. 6 Up until 8 July 2024, the appellant had the benefit of legal representation. On that day, her then solicitors filed a notice of ceasing to act. As at that time, the court's records disclose that there had been an approval of an appeal book index. There had also been on 7 June 2024 the standard form appeal directions made by a registrar which materially required the filing within 14 days of Part A of the appeal book. It is quite clear that that requirement had not been complied with as at the time when the appellant's solicitor filed the notice of ceasing to act. 7 The appeal was instituted by the filing of a notice of appeal on 8 February 2024. There had already been prior to the filing of the notice of ceasing to act tardiness by the appellant in compliance with preliminary requirements for the progression of an appeal, namely, the filing of a draft index. That had necessitated Besanko J on 2 April 2024 to direct that the appellant comply with r 36.52(2) of the Federal Court Rules 2011 (Cth) on or before 9 April 2024. At that time, his Honour also made provision for the filing also on or before 9 April 2024 of any interlocutory application for a stay of the sequestration order, which was the subject of the appeal. 8 I note no such interlocutory application was ever made. 9 Litigants in person present very particular challenges in the administration of justice. It is an absolute right of a person who is possessed of their faculties to act for themselves in litigation. Indeed, that is an important civil right. But there is only one set of rules of court. No separate rules of court are applicable where someone chooses to avail themselves of their right to act for themselves. Rules of court, of course, must be a servant of justice, not its master. So it is that some understanding must be given to litigants in person. But that understanding cannot prejudice the interests of other parties to a proceeding. 10 Further, as s 37M of the Federal Court of Australia Act 1976 (Cth) attests, there are other interests abroad in the conduct of litigation in this Court. There is a public interest in the efficient use of necessarily limited judicial resources. Parties to litigation in the court must take account of this and behave accordingly in the prosecution of litigation. 11 The only evidence I have concerning the appellant is in the Health District report. There are assertions made in the email correspondence apparently from her son, but these give no indication as to whether the appellant intends to rectify, before the appointed hearing date for the appeal on 15 August 2024 in Sydney, the existing, and indeed now long existing, default in relation even to the filing and service of Part A of the Appeal Book. 12 Cowdroy J was faced with a similar situation to the present in 2010 in Wade v AMI Australia Holdings Pty Ltd (2010) 274 ALR 431 (Wade). His Honour in that case observed, at [37], that: The personal difficulties of the first appellant in prosecuting the appeal, and the status of the first (and second) appellant(s) as litigants in person must be balanced with the first and second respondents' interests arising from orders made by a single judge of this Court in their favour. No appeal books have been finalised, filed or served, nor was any application made for the adjournment of the Full Court hearing on 24 August 2010. There has neither been any response to the registrar's notification of the dismissal of the proceedings under O 52, r 38 of the Rules. In the result and the circumstances of that case, his Honour dismissed the appeal for want of prosecution. Here too, there has been no application, even informally, for the adjournment of the hearing of the appeal. 13 In the ordinary course of events, were an adjournment sought the adjournment would be to the next appellate sitting period after August, which is in November this year. Any such adjournment would, however, as was highlighted by Mr Koch of counsel in his helpful and fair submissions, present a very particular prejudice to the respondent. That prejudice would arise by virtue of the application in the circumstances of the present case, were the appeal successful, of s 41(3)(c)(i) of the Bankruptcy Act 1966 (Cth). That imposes a requirement that a bankruptcy notice not be issued in relation to a debtor in respect of a judgement or order for the payment of money if a period of more than six years has elapsed since the judgement was given. The underlying judgment was given in the New South Wales Supreme Court on 1 November 2018 in a monetary sum of $4,682,115.45: see Aquamore Credit Equity Pty Ltd v Maroon [2023] FCA 1399, at [10], as incorporated by reference in Aquamore Credit Equity Pty Ltd v Maroon (No 2) [2024] FCA 14, at [2]. Thus, an adjournment to the November sittings would carry the proceeding beyond the time when a further bankruptcy notice might be issued in the event that the appeal were successful. 14 The appeal raises alleged procedural fairness denial issues in relation to the exercise of the original jurisdiction which resulted in the making of the sequestration order. It does not entail a challenge to the act of bankruptcy founded in the judgment mentioned. So the point is that there is in prospect, if the appeal were adjourned and successful, very definite prejudice to the respondent. All of this behoved an appellant to prosecute an appeal with due diligence. 15 There was some reference on behalf of the respondent to the subject of prospects of success in respect of the appeal. Obviously enough, it would not be appropriate to express any concluded view on that subject. All I would observe, having regard to the grounds of the appeal and the reasons for judgment, is that the prospects of success do not strike me as terribly compelling. It is apparent that Stewart J, who made the sequestration order, experienced very particular difficulties arising from, and that the court went correspondingly to particular lengths to deal with justly, a circumstance of a non-appearance at the appointed date for the hearing of the creditors petition. 16 It is a moot point indeed, having regard to the notification of the hearing date for that petition at a time when the appellant was legally represented, as to whether there was any denial of procedural fairness. 17 As it happens, another judgment of Stewart J is pertinent. That is Nandutu v Chapman (No 2) [2021] FCA 45. As I have, his Honour, in the course of considering whether to dismiss an appeal for want of prosecution, referred with approval to Cowdroy J's judgment in Wade. Having so done, his Honour added at [22]: On the authorities, I accept that dismissal of an appeal for want of prosecution is a drastic remedy that should be sparingly resorted to, that a court should not lightly deprive a litigant of their right of appeal, and that each case turns on its own facts and circumstances. It is also the case that the respondent to an appeal has a key interest in being able to enjoy the fruits of the judgment that is appealed from and to bring the appeal to a reasonably quick and efficient conclusion. These divergences in interests must be balanced. With those observations, I respectfully agree. 18 There is here, in the circumstances of this case, a balance to be struck between the exercise of a right of appeal by a person, who has in turn a right to appear and act for themselves, with the interest of a respondent in finality and, in particular, the interest in respect of the preservation of the existing act of bankruptcy, having regard to the difficulty which would result from any further endeavour to rely upon the 2018 New South Wales Supreme Court judgment. 19 It only comes to this: I consider it clear to the point of demonstration that it is not possible for the appeal to be heard as ordered on 15 August 2024. That hearing was notified to the appellant at the time when she had legal representation. Even before her solicitors ceased to act, she was in default. Whilst I have every sympathy for the appellant in terms of the predicament she encountered earlier this month and well accept that the Health District report explains her absence on 17 July 2024, it does not explain the earlier act of default which continues. There is no evidence which would suggest that it would ever be rectified, or that there is a disposition to rectify it. 20 The appellant is an elderly lady who, on the evidence I have, does speak English. Age in itself, though, is not an excuse for the failure to prosecute an appeal. I am satisfied that at the time when the solicitor ceased to act there was already an act of default and a want of prosecution. That remains unaddressed. It would, in my view, be unjust for reasons given just to adjourn this appeal. Instead, accepting as I do that the dismissal of an appeal without a hearing on the merits is a drastic step, nonetheless, I consider this to be a case where that should be ordered. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Logan.