Mulhern v Pearce

REASONS FOR JUDGMENT 1 This is an application by the first respondent to an appeal for an order that the appeal be dismissed for the failure by the appellant to comply with a direction of the Court, or to comply with the Federal Court Rules 2011 ("Federal Court Rules") or to prosecute the appeal. The application is made under Rule 36.74 of the Federal Court Rules. The power of a single judge to make the order sought by the first respondent is contained in section 25 of the Federal Court of Australia Act 1976 (Cth), which relevantly provides: (2B) A single Judge (sitting in chambers or in open court) or a Full Court may: (ba) make an order that an appeal to the Court be dismissed for want of prosecution; or (bb) make an order than an appeal to the Court be dismissed for: (i) failure to comply with a direction of the Court. 2 The notice of appeal was filed by the appellant on 21 May 2012. Rule 36.52 of the Federal Court Rules deals with a number of matters, including a party making an application in writing to the Registrar for the Registrar's assistance. The appellant did not make such an application in this case. Rule 36.52(2) provides as follows: If there is no application by any party under subrule (1), the appellant must, within 28 days after the service of the notice of appeal, submit to the Registrar a draft of: (a) the index to Part A of the appeal book; and (b) Part B of the appeal book. 3 The appellant did not do that in this case. 4 On 18 July 2012, there was a call-over in relation to this appeal. The appellant appeared in person; the first respondent appeared by their solicitors. Collier J made a number of orders, including the following: 1. The appellant must file and serve a draft index to Parts A and B of the Appeal Book within 14 days pursuant to Rule 36.54 of the Federal Court Rules 2011. 2. The matter be referred to the Registrar to settle Parts A and B of the Appeal Book. 3. The appeal be listed for hearing in the Full Court and Appellate Sittings of the Court in Brisbane commencing on 19 November 2012 before a Full Court. 5 The appellant did not and has not complied with the first order. The appellant has not appeared this morning. He sent an email to my chambers and to the solicitors acting for the first respondent. In that email, he refers to the first respondent's interlocutory application. He also states the following: Based on the above, in the interests of justice, I will consent to your client's application subject to your client consenting to return my seized Australian, Irish and USA passports, which occurred on 8 January 2012 upon my natural return and entry into Sydney, Australia, on 8 January 2012. Your client's consent is to be provided in writing prior to your purported client Hearing at 10 am Friday, 17 August 2012. Based on the above being received, my passports will be made available for collection on or by 3 pm 17 of August 2012. If such is not received, in accordance to my rights, I oppose and require the dismissal of your client's application for reasons known to your client and the court. 6 There is nothing in the email by way of explanation as to why the appellant did not comply with rule 36.52 of the Federal Court Rules or why the appellant did not and has not complied with the first order made by Collier J on 18 July 2012. Nor is there any statement in the email to the effect that the appellant intends to comply with the order made on 18 July 2012 or any indication as to when that might be done. 7 In support of their interlocutory application dated 3 August 2012, the first respondent relies on the affidavit of Neil John Abercrombie sworn on 2 August 2012, Jennifer Jane Morgan sworn on 16 August 2012, and Andrew John Heers sworn on 16 August 2012. In addition, the first respondent relies on its outline of argument in support of the interlocutory application. 8 I have considered carefully that material. It seems to me that, in the absence of any explanation by the appellant as to why he has not complied with the Rules of the Court or an order of a judge of the Court, or any statement by him indicating that he intends to comply with the order of the Court, it is an appropriate case to make an order that the appeal be dismissed for want of prosecution or for failure to comply with a direction of the court or both. 9 I make the following orders: 1. The appeal be dismissed. 2. The first respondent's costs of this application and of the appeal be costs in the bankrupt's estate. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.