Phillips v Southage Pty Ltd

REASONS FOR JUDGMENT 1 Pursuant to an application filed in the court on 5 October 2015, the applicant, Steve Phillips, seeks an extension of time within which to file a notice of appeal from the judgment of the Federal Circuit Court in Southage Pty Ltd v Phillips [2015] FCCA 2800. That judgment was by way of a review of an earlier decision of a registrar to make a sequestration order in relation to the assets of the applicant under the Bankruptcy Act 1966 (Cth). That order was made on the strength of a bankruptcy notice which had earlier been challenged in the Federal Circuit Court and upheld by a judgment of Judge Burchardt which, in turn, was challenged and upheld in a judgment given on appeal by Davies J in this court in Phillips v Southage Pty Ltd [2015] FCA 332. 2 The judgment from which the applicant seeks to appeal was given on 9 September 2015 and, as I have indicated, the application for an extension of time was filed on 5 October 2015. It will be noted that the application was lodged more than 21, but less than 28, days after the judgment sought to be appealed from. The applicant explains his failure to file a notice of appeal within the 21 days limited, under rule 36.03 of the Federal Court Rules 2011 (Cth) ("the Rules"), by reference to an understanding, on his part, that the relevant period within which to lodge a notice of appeal was 28 days. 3 Exhibited to his affidavit sworn on 5 October 2015 is a single page of a document, which manifestly had other pages, containing a number of subheadings, the first of which is "General Information". Under that subheading, it is stated that a notice of appeal must be filed no later than 28 days after the day on which the order being appealed was made. It is not clear, and counsel for the applicant was unable to explain, what was the provenance of this form, although I am satisfied that it was not, and is not, a form appearing on any page of the website of this court. 4 Particularly given the applicant's previous experience in litigation, to which I shall refer again presently, I am not satisfied that the mistake which he made about the time within which the appeal had to be lodged was a reasonable one. On the other hand, it does not appear to have been suggested that it was other than an innocent one, and counsel for the respondent has quite properly accepted that, if in other respects the appeal appeared to have merit, it would be appropriate to forgive that mistake and to extend time under rule 1.39 of the Rules. It was submitted, however, that the appeal, insofar as it was explained to me today by counsel for the applicant, was conspicuously devoid of merit and, indeed, would constitute no more than an attempt to re-agitate questions which had been litigated a number of times in the past. 5 The nature of the applicant's case, as it was explained to me, was that Vickery J of the Supreme Court of Victoria had been in error in two respects in the judgment which he gave on 6 May 2013, in Southage Pty Ltd v Beijing Garden Resort Pty Ltd & Ors [2013] VSC 272. Those respects were, first, that his Honour mistook the age of the applicant's son, holding that this young man was more than 25 years of age, when, according to the applicant, the truth was otherwise; and, secondly, that the defendant in that proceeding, Beijing Garden Resort Pty Ltd was not a licensed lender and, therefore, was not in a position to enforce its security in the way which led to the judgment of Vickery J. That judgment was the foundation for the bankruptcy notice which was subsequently served upon the applicant. 6 The judgment was the subject of an appeal by the applicant to the Court of Appeal, that appeal being dismissed on 20 February 2014, Phillips v Southage Pty Ltd [2014] VSCA 17. I was assured by counsel for the respondent that the respects in which the applicant now says that the judgment of Vickery J was attended by error were agitated by the applicant in his appeal in the Court of Appeal, and that the points in question were decided against him on that occasion. The same points, I was told, were raised before Judge Burchardt in the applicant's application to set aside the bankruptcy notice and, again, in the appeal from his Honour's judgment before Davies J in this court. 7 Again, the same points were raised by the applicant in his application for review of the sequestration order which was dealt with by the Federal Circuit Court on 9 September 2015, the subject of the present application for an extension of time. Her Honour then said: It seems to me that the argument now sought to be advanced has been dealt with time and again by the courts and it has been resolved contrary to the debtor's position. Counsel for the applicant on the present occasion was not able to articulate any respect in which her Honour had been mistaken in that assessment or, for that matter, to point to any respect in which her Honour had been in error in disposing of the application for review which came before her. The submission made on behalf of the applicant was simply that her Honour had been wrong, that Davies J had been wrong, that the Court of Appeal had been wrong, and that Vickery J had been wrong. 8 I really need to go no further than to recite this lengthy history of litigation for it to be self-evident that the appeal which the applicant seeks to prosecute in the present matter, would have no prospect of success. It may be that it is always possible for a court exercising bankruptcy jurisdiction to go behind a judgment, but there have been a number of previous occasions in which courts have already gone behind the judgment of Vickery J, most significantly that upon which the Court of Appeal itself, the court with the very function of discerning and correcting error in the Supreme Court, dismissed the applicant's appeal. And, as the Federal Circuit Court recognised in the present case, the time has surely been reached when the court should recognise that the applicant has run his race in relation to the complaint which he makes about the outcome of the proceeding before Vickery J. 9 It may be that the proposed appeal could be described in stronger terms than merely to say that it would have no prospect of success. Given the prior adjudication of the respects in which the applicant seeks to challenge the judgment below, there is an obvious sense in which it might be said that an appeal, even if lodged within time, would be an abuse of process. I do not base my conclusion this morning upon any such view. It is sufficient for me to say that the discretionary power to extend the time in which an appeal should be lodged should not be exercised favourably to the applicant on this occasion because of the self-evident correctness of the position which was reached by the judge in the Federal Circuit Court. Indeed, counsel for the applicant did not seek to engage in any serious way with her Honour's reasons and, although I do not want to embarrass him, I am bound to say that it struck me as unusual that he should have attempted to prosecute this application without having in court with him today a copy of the judgment against which an appeal is sought to be lodged. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.