Vasiliou v Marchesi

REASONS FOR JUDGMENT 1 On 20 October 2005, the primary Judge (Marshall J) dismissed an application by the applicant pursuant to s 179 of the Bankruptcy Act 1966 (Cth) ('the Act') for the removal of the respondent as his trustee in bankruptcy and ordered that the applicant pay the respondent's costs of and incidental to the application: see Vasiliou v Marchesi [2005] FCA 1471. 2 As the orders were made on the basis of all of the material relied upon by the applicant, it is appropriate to treat them as final orders with the consequence that any appeal was to be filed within 21 days: see O 52 r 15(1) of the Federal Court Rules. 3 The applicant, who was self represented, did not file a notice of appeal within the required time. Rather, on 28 November 2005 he applied for leave to appeal out of time. Under O 52 r 15(2) the Court or a Judge 'for special reasons' may give leave to file and serve a notice of appeal out of time. 4 In Gallo v Dawson (1990) 93 ALR 479 at 480, McHugh J, citing Hughes v National Trustees Executors & Agency Co of Australia Ltd [1978] VR 257 at 262 observed that the discretion to extend time for an appeal was for 'the sole purpose of enabling the court [or a judge] to do justice between the parties' and stated, in that context, it is always necessary to consider the prospects of success. In that case, his Honour decided that the proposed appeal in the matter before him had no prospect of success with the consequence that leave to appeal out of time was refused. 5 The grounds of appeal in the draft notice of appeal were expressed as follows: "GROUNDS: 1. The Court has not allow the applicant an adjournment to obtain further evidence required. 2. The Court has ignored in principal the affidavit sworn by the applicant. 3. The appeal is of public importance. ORDERS SOUGHT: 1. To allow this appeal to go ahead. 2. Compensation for loss 3. Costs. 4. And any other remedy the Court will allow." 6 The primary judge considered the material filed by or on behalf of the applicant and concluded (at [15]): "… there is no evidence before the Court which would justify it inquiring into the conduct of the trustee with a view to considering his removal. It is well established that the Court will not initiate an inquiry under s 179 unless it is satisfied that a proper case for an inquiry has been demonstrated; see Wilson v Commonwealth of Australia [1999] FCA 219 at [44] and the cases cited therein. See also Turner v Official Trustee in Bankruptcy, unreported Full Court, 27 November 1998 as cited in Macchia v Nilant (2001) 110 FCR 101 at 120. In this matter, I have no reasonable cause to believe (on the evidence before me) that the trustee may have failed to act in relation to Mr Vasiliou's bankruptcy in a manner required by law." 7 Section 179(1)(a) of the Act empowers the Court, inter alia, on the application of a bankrupt to inquire into the conduct of a trustee and to remove the trustee from office and make such order as it thinks proper. 8 The first proposed ground of appeal claims that the primary judge ought to have allowed the applicant more time to obtain evidence. I am satisfied that there is no proper basis for that ground. The hearing of the matter came on after directions were given for the filing of evidence and the applicant had the opportunity to file, and did file, four affidavits between 11 May and 20 October 2005 when his application was heard by the primary judge. The remaining grounds in the draft notice do not raise proper grounds of appeal. 9 However, as the applicant is self-represented, it is appropriate to consider whether there is any arguable ground that the judgment of the primary judge was attended with appellable error. 10 The basis on which the application was dismissed by the primary judge was that the material filed by the applicant contained allegations and assertions, rather than relevant and admissible evidence upon which it was appropriate for the Court to act. It was in that context that his Honour concluded that 'there is no evidence before the Court which would justify it inquiring into the conduct of the trustee with a view to considering his removal'. 11 I have considered the material before the primary judge and am satisfied that it was open to his Honour to arrive at the conclusion set out earlier in these reasons and that no arguable error was made by his Honour in doing so. In those circumstances I have concluded that there is no realistic prospect of success on any appeal and that leave to appeal out of time should be refused as to do so will not work any injustice between the parties. 12 In any event, having considered all the relevant circumstances, including the inadequacy of the explanation provided by the applicant for not having filed a notice of appeal within time, I am also not satisfied that a 'special reason' has been shown in order to attract the power under O 52 r 15(2) to extend the time for an appeal. 13 The application of the applicant for leave to appeal out of time is to be dismissed with costs. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel.