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[2009] FCA 501
Federal Court of Australia
2009-05-11
Edmonds J, Stone J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 On 12 December 2007, the New South Wales Supreme Court made a costs order against the appellant. An appeal against the costs order was dismissed by the New South Wales Court of Appeal on 14 July 2008. On 10 December 2008, the appellant's application for special leave to appeal to the High Court against the costs order was refused. On 14 May 2008 the respondent served a bankruptcy notice on the appellant based on the judgment debt created by the unmet costs order. The appellant did not comply with the bankruptcy notice, and his application to set it aside was dismissed in the Federal Magistrates Court on 1 July 2008. The appellant appealed from the Federal Magistrate's decision, and on 27 February 2009 Edmonds J dismissed the appeal. His Honour published reasons for his orders on 11 March 2009. (Satchithanantham v National Australia Bank Ltd [2009] FCA 198) 2 The creditor's petition brought by the respondent was listed to be heard on 15 October 2008. Pending the resolution of the appeal before Edmonds J the hearing was adjourned to 22 December 2008. On 22 December 2008, the hearing was further adjourned to 22 December 2008 and then to 11 March 2009. 3 On 11 March 2009 the appellant did not attend either the handing down of reasons by Edmonds J or the hearing of the creditor's petition. When he did not appear at the hearing of the creditor's petition the solicitor for the respondent attempted to contact the appellant on his mobile phone, but was unsuccessful. It appears that he was confused about the date because he had lost his diary in January 2009, and thought that the hearing was on either 12 or 13 March. The Federal Magistrate continued with the hearing in his absence and at the conclusion of the hearing his Honour made a sequestration order against the appellant; NAB Limited v Satchithanantham (No.2) [2009] FMCA 229. 4 Mr Satchithanantham now seeks to have the sequestration order set aside. I understand that he has also brought proceedings in the Federal Magistrates Court seeking annulment of the sequestration order, and the hearing of that application is scheduled for tomorrow morning. 5 In his reasons for making the sequestration order, the Federal Magistrate said, at [7]: Although Mr Satchithanantham has not attended today to present submissions in support of his notice of opposition, I have considered all the grounds set out in his notice, including additional contentions which are made in his three affidavits filed in support. In my opinion, none of the contentions made in opposition to the petition have merit. Essentially most of the contentions repeat the arguments, which I addressed in relation to the bankruptcy notice, and rejected. All of my reasoning has been left undisturbed by the judgment of Edmonds J. 6 His Honour referred to Mr Satchithanantham's lack of success in his various proceedings since his Honour's earlier judgment concerning the bankruptcy notice and added, at [8]: The lack of substance in those claims is therefore clearer on the evidence now before me than it was last year. I do not consider that the existence of any of that litigation, or of the claims which Mr Satchithanantham attempted to pursue in them and might attempt in the future to pursue again, provides grounds for me to refuse to make a sequestration order today. 7 In considering the evidence of Mr Satchithanantham in relation to the creditor's petition, the Federal Magistrate canvassed in some detail additional evidence concerning the costs order made by the Supreme Court but did not accept that it provided any reason to go behind the Supreme Court's order.
Application for adjournment of appeal hearing 8 At the outset of the appeal hearing Mr Satchithanantham sought an adjournment so he could obtain legal advice however there is no evidence before me that the appellant has any realistic hope of obtaining legal representation. Mr Satchithanantham referred to the prospect of pro bono legal advice being made available by the Court of Appeal in relation to a matter to be heard in that court. There is, however, no reason to think that any such advice would be available to the appellant in respect of the current appeal. 9 This matter has dragged on for a very long time. The creditor's petition was originally scheduled to be heard in October last year but was postponed a number of times pending the decision of Edmonds J. It is relevant to note that in his reasons for judgment at paragraph 20, Edmonds J stated that the various attacks made by the appellant on the debt underlying the bankruptcy notice are vexatious and frivolous, and were correctly dismissed by the Federal Magistrate. 10 There has been considerable delay in dealing with this issue, and I have no confidence that, were an adjournment to be granted, Mr Satchithanantham would, in fact, be able to obtain legal representation. It is reasonable to assume that if the appellant was in the position to obtain legal representation he would have done so by now. I therefore declined to grant the adjournment. 11 I should say that Mr Satchithanantham also claimed of being unwell, but no evidence was presented to support this claim other than a medical certificate, which stated that he was unwell "from 050509 … to 060509 … inclusive". As the date of the hearing is 11 May 2009, the period covered by the medical certificate is not relevant.
The appeal 12 Mr Satchithanantham's submissions in support of his appeal to set aside the Federal Magistrate's decision appeared really to rest on two bases, although a number of ancillary issues were raised. One was, understandably, the fact that the hearing of the creditor's petition proceeded in his absence. The other was a further attack on the validity and correctness of the costs order made by Supreme Court. As I have already indicated, that costs order has been subject to scrutiny at a number of levels, not only by the New South Wales Court of Appeal and the High Court of Australia but also by the Federal Magistrate and subsequently by Edmonds J. At the hearing of the creditor's petition it was again considered. Although Mr Satchithanantham obviously feels very strongly about the matter, he has not raised any substantive issue which would convince me that there would be any purpose or, indeed, any justice in going behind the costs order once more. 13 In relation to his not having attended the hearing, it is relevant that when the matter was set down for hearing on 22 December 2008, Mr Satchithanantham was present. There is no doubt that initially he knew that the hearing was on 11 March. The difficulty arose when he lost his diary and relied on his memory as to the date. If he was uncertain he had ample time to contact the Registry to confirm the date. In those circumstances his mere failure to attend is not a sufficient reason for setting aside his Honour's decision. 14 Moreover, it is clear that his Honour considered all the material in submissions that had been filed in the Federal Magistrates Court to that date, and none of the material referred to by Mr Satchithanantham today has satisfied me that there was any defence he could have raised in relation to the creditor's petition that was not considered by his Honour. Although it is regrettable that he was not present at the hearing of the creditor's petition, in my view no injustice has been occasioned sufficient to warrant setting aside the creditor's petition. For those reasons the appeal is dismissed with costs. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.
Associate: Dated: 18 May 2009 Appellant: Appeared in person
Solicitor for the Respondent: Dibbs Abbott Stillman
Satchithanantham
National Australia Bank Ltd
[2009] FMCA 229