Russo v Private Funds Management Pty Ltd

REASONS FOR JUDGMENT 1 On 29 September 2010 a Registrar of the Court made a sequestration order against the estate of Mr Angelo Russo. Mr Russo sought a review of the Registrar's order. On 13 January 2011 a Federal Magistrate refused the application: see Russo v Private Funds Management Pty Ltd [2011] FMCA 8. On the following day Mr Russo filed a notice of appeal against the Federal Magistrate's decision. 2 Mr Russo has done nothing to prosecute the appeal. 3 The appeal was listed for hearing before me on 19 May 2011. On the previous day a letter was sent to the Registry of the Court. Its author, Ms Gina Costanzo, identified herself as Mr Russo's "partner". She advised that Mr Russo was "traumatised". He had taken to his bed and was refusing to seek medical attention. She said that Mr Russo was "severely depressed" and was the victim of fraud. She sought, on Mr Russo's behalf, "an extra two weeks to get the legal representation he desperately needs and deserves." 4 When his appeal was called on on 19 May 2011, Mr Russo did not appear. 5 In these circumstances it would have been open to the Court, in the exercise of its discretion under s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth), to order that the appeal be dismissed by reason of Mr Russo's failure to attend the hearing: see SZISM v Minister for Immigration and Citizenship (2007) 158 FCR 292 at 297 [18]. 6 Counsel for the respondents did not seek such an order. Rather, the respondents submitted that the appropriate course was for the Court to resolve the appeal on its merits in the absence of Mr Russo. 7 I determined, in the circumstances, to adopt that course. I did so having regard to a number of matters. They included: Mr Russo's unexplained failure, over a period of some four months, to take any steps to prosecute his appeal. This failure occurred despite him being reminded, on a number of occasions, that he needed to take action. No explanation was offered as to why, during this period, he did not seek legal representation. The narrow issue to be resolved on the appeal. The absence of merit in the appeal. The undesirability of the respondents having to incur the further costs and uncertainty which would flow from any adjournment. The need for finality in litigation. 8 Mr Russo's notice of appeal contained four grounds. They were: "1. That the Federal Magistrate erred in his decision delivered on 13 January 2011. 2. That the Sequestration Order made against the estate of Angelo Peter Russo made on 29 September 2010 be stayed until further Order by the Federal Court of Australia. 3. That the Sequestration Order made against the estate of Angelo Peter Russo made on 29 September 2010 be revoked. 4. The Creditor's Petition filed on 21 June 2010 be dismissed on the basis: 4.1 That the matters required by s.52 of the Bankruptcy Act have not been satisfied by the Petitioning Creditor; and 4.2 Mr Russo has the ability to pay his debts as and when they fall due." 9 Ground 1 was unparticularised. 10 Purported grounds 2 and 3 were no more than a statement of orders sought by Mr Russo. 11 Purported ground 4 also sets out an order which Mr Russo desired the Court to make. It is to be noted that Mr Russo expressly declined to press any claim of failure, on the part of the petitioning creditor, to satisfy the formal requirements of s 52 of the Bankruptcy Act 1966 (Cth) when he appeared before the Federal Magistrate: see [2011] FMCA 8 at [15]. 12 Following a detailed analysis of the evidence relating to Mr Russo's financial circumstances the Federal Magistrate rejected Mr Russo's claim to be able to pay his debts as and when they fell due: see [2011] FMCA 8 at [29]-[67]. He refused the application. 13 I have carefully examined the Federal Magistrate's decision. I can detect no error in it. On the contrary, I consider that the orders made by the Federal Magistrate to be correct for the reasons which he gave. 14 The appeal must be dismissed. I will hear the parties on costs. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.