Miller v Nationwide News Pty Ltd

REASONS FOR JUDGMENT 1 This is an appeal from the judgment of the Federal Magistrates Court (Smith FM) given on 14 November 2008 ([2008] FMCA 1576) ('the Judgment') dismissing an application to set aside Bankruptcy Notice No. NN 3554 of 2008 ('the Bankruptcy Notice') or extend time for compliance with it. 2 On 20 February 2009 the Chief Justice, pursuant to the provisions of subs 25(1A) of the Federal Court of Australia Act 1976 (Cth), determined that the appellate jurisdiction of the Court in relation to the appeal be exercised by a single judge. 3 On 20 April 2009 I dismissed the appeal and I now publish my reasons. 4 The notice of appeal in this Court seeks an order that the Judgment be set aside and an order that the Bankruptcy Notice be stayed until the High Court of Australia has determined the appellant's application for special leave to appeal from a judgment of the New South Wales Court of Appeal (see Miller v Nationwide News Pty Limited [2008] NSWCA 222). On 11 February 2009 the High Court dismissed the appellant's application for special leave (see Miller v Nationwide News Pty Limited [2009] HCASL 22). Arguably, this disposed of both orders sought but I was prepared to hear the appeal on the basis that it only disposed of the stay order, not the order seeing to set aside the Judgment. 5 The Bankruptcy Notice required the appellant to pay debts totalling $91,371.90 under a judgment of the Supreme Court entered on 16 September 2008. The judgment was entered in accordance with two certificates of determination of costs assessments issued on 3 September 2008. The two certificates related to party and party costs orders which had been made in the District Court by Delaney DCJ on 31 January 2008 and by Beazley JA in the New South Wales Court of Appeal on 16 June 2008. 6 The existence of the costs orders, the assessments and the judgment debt is not in dispute, but the appellant invited the Federal Magistrates Court, and invited this Court, to look behind the costs order of Delaney DCJ so as to find that, in effect, it ought not to have been made because the appellant's substantive claim in the District Court should not have been dismissed. 7 He also invited the Federal Magistrates Court to examine the reasoning of Beazley JA, who refused the appellant an extension of time for bringing an appeal from the judgment of Delaney DCJ (see Miller v Nationwide News Pty Limited [2008] NSWCA, unreported, 16 June 2008), and also to examine the reasoning of Hodgson JA, Bell JA and Gyles AJA in the Court of Appeal when refusing his application for review of Beazley JA's judgment. 8 After service of the Bankruptcy Notice, the appellant unsuccessfully applied to the New South Wales Court of Appeal for a stay on the two costs orders and the judgment debt based on the costs assessments. This was addressed by McColl JA on 13 October 2008 (see Miller v Nationwide News Pty Limited [2008] NSWCA 261). 9 The Federal Magistrate carefully considered the appellant's application that came before him. The principal basis upon which the appellant sought to have the Bankruptcy Notice set aside in that court was an assertion that Delaney DCJ's judgment was capable of being overturned on appeal. The Federal Magistrate considered the appellant's submissions in that regard concluding at [12]: None of the points raised by Mr Miller before me today, in my opinion, raise anything near a sufficient case to justify this Court doubting the foundation for the judgment debt, either in relation to Delaney DCJ's substantive judgment, or the costs orders and assessments which have resulted in the bankruptcy notice. In relation to the prospects of the High Court special leave application, I would, with respect, form the same opinion of its prospects as was explained by McColl JA [at [27], [28]]. I therefore decline to embark on a retrial of the existence of the contract asserted by Mr Miller, so as to arrive at a conclusion undermining the validity of the bankruptcy notice. 10 The decision of the High Court has now determinatively settled the issue. 11 I am unable to identify any error in the reasoning of the learned Federal Magistrate. His Honour correctly exercised his discretion to refuse to grant an extension of time to comply with the Bankruptcy Notice or to set it aside. There is no error of the kind referred to in House v R (1936) 55 CLR 499 at 504 - 505. 12 The appeal must be dismissed with costs. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.