Wade v AMI Australia Holdings Pty Ltd - [2010] FCAFC 120 - FCAFC 2010 case summary — Zoe

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Wade v AMI Australia Holdings Pty Ltd

[2010] FCAFC 120

Federal Court of Australia (Full Court)|2010-09-24|Before: Cowdroy J

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At a glance

Source facts

Court

Federal Court of Australia (Full Court)

Decision date

2010-09-24

Before

Cowdroy J

Catchwords

Number of paragraphs: 39

Source

Original judgment source is linked above.

Catchwords

Number of paragraphs: 39

Judgment (23 paragraphs)

[1]

REASONS FOR JUDGMENT COWDROY J: 1 On 27 January 2010 an appeal was filed by the appellants, David John Wade ('Mr Wade'), Georgina Wade ('Mrs Wade'), Bade Medical Institute (Aust.) Pty Limited ('Bade') and World Wide Internet Services (Aust.) Pty Limited ('World Wide Internet') from the judgment delivered on 4 December 2009 in AMI Australia Holdings Pty Ltd (ACN 095 238 645) and Another v Bade Medical Institute (Australia) Pty Ltd (ACN 119 950 739) (No.2) (2009) 84 IPR 19. 2 The Notice of Appeal nominates AMI Australia Holdings Pty Limited ('AMI'), Advanced Medical Institute Pty Limited ('Advanced Medical') and Dr Buddy Paul Beaini ('Dr Beaini') as the respondents to the appeal. The Court notes that Dr Beaini was also named as a respondent in the proceeding before the primary judge. 3 Although the Notice of Appeal nominates Bade and World Wide Internet as the third and fourth appellants, the Court notes that such companies had apparently been deregistered prior to the appeal being lodged. The Court has been informed that such companies were at all times under the control of Mr Wade, Mrs Wade and/or Dr Beaini. Further, no orders were sought against those appellants before the primary judge nor were any made against them. The Notice of Appeal was not executed on their behalf. The Court is satisfied that Bade and World Wide Internet are not competent appellants and accordingly the Court will proceed only to deal with the appeal in relation to Mr and Mrs Wade.

[2]

Grounds of Appeal 4 The appeal relates primarily to the conduct of the proceedings before the primary judge. The Notice of Appeal contains four grounds of review, namely: 1. Mr. Wade; Unfit to give evidence. · Mr. Wades testimony was the basis for the defendants case. · Mr. Wade was ill at the commencement of the trial and progressively became worse. · Due to this Mr. Wade asked the court on many occasions for an adjournment, and produced medical certificates to support his claim. · Mr. Wade was not given the appropriate adjournment that he required and was made to testify on his and the companies behalf. · Mr. Wade was also penalised in the judgment with interest, due to the adjournments required. · Mr. Wade was diagnosed with Aggressive T-cell Lymphoma. · At the time he was made to give evidence he was in severe pain, His body had swollen to three times its size with fluid, he could not walk without assistance, he could not sit for a long period of time, his body was covered in painful welts and he was highly medicated on Endone (Morphine). Mr. Wade also underwent 6 courses of Chemotherapy to try and fight the cancer throughout the trial. · Mr. Wade has no personal recollection of what he said on the stand, nor if he was able to put forward his case. He was unrepresented and therefore was not given a fair trial. 2. Evidence not taken into account · Mr. Wades case fell on the grounds that he only used names that he had registered with the appropriate government bodies of NSW. · This evidence has not been taken into account, leading Mr. Wade to assume that he was unable to tender his evidence properly, due to his inexperience in the court room, and the severity of his illness. · Mr. Wade would like to be given the chance to explain his versions of events while he is lucid. 3. All defendants have been affected by the treatment of Mr. Wade, as they relied heavily on his testimony. 4. Georgina Wade also produced medical certificates, and her Dr addressed the court via telephone. Mrs. Wade was also made to give evidence, whilst medicated and deemed medically unfit by her doctor. 5 On the filing of the appeal, the matter was listed for call-over on 3 February 2010 at 9:30 am and the settlement of the appeal papers was to occur before the Registrar at 9:30 am on Tuesday 3 March 2010.

[16]

Full Court Hearing: 24 August 2010 23 On 24 August 2010 the appeal came before the Full Court. There was no appearance by the first and second appellants, nor by the cross-appellant. Mr Green, counsel for the first and second respondents, informed the Court that he had been told that a trustee had been appointed to Mrs Wade's estate under the provisions of the Bankruptcy Act 1966 (Cth) ('the Bankruptcy Act'). 24 Mr Vincent Chan from the office of Michael Jones, Trustee in Bankruptcy of the estate of Mrs Wade, then appeared and informed the Court that the second appellant had been declared a bankrupt on 20 May 2010. However, Mr Chan told the Court that Mr Jones, as Trustee, had as yet made no election under s 60(2) of the Bankruptcy Act to prosecute or discontinue the appeal. The Court was informed at the hearing that Mr Jones was the second trustee in bankruptcy to be appointed to the second appellant's estate and that he had only recently become aware of the proceedings. At the time of the hearing the 28 day period prescribed by s 60(3) of the Bankruptcy Act had not expired. 25 After a short adjournment Mr Chan informed the Court that Mr Jones would not be prosecuting the appeal and that an election in writing would be provided to the Court as required by s 60(2) of the Bankruptcy Act. 26 Mr Green, counsel for the first and second respondents, informed the Court that the cross-appellant, Dr Beaini, wished to take no further part in the appeal. Mr Green's instructing solicitor, Mr Peter Raymond Hudson then testified to a conversation with Dr Beaini to this effect which had occurred on the preceding day. 27 Mr Wade, the remaining appellant, did not appear at the hearing and no further communication has been received in relation to the appeal. 28 At the conclusion of the hearing the Court made the following orders: 1. Leave be granted to the Trustee in Bankruptcy of the estate of the Second Appellant to discontinue their appeal. 2. Leave be granted to the First and Second Respondents to file a motion that the appeal be dismissed for want of prosecution pursuant to O 52 r 38 of the Federal Court Rules (Cth). 3. The motion referred to in the above order be made returnable before Cowdroy J on 10 September 2010 at 9:30 am.

Wade v AMI Australia Holdings Pty Ltd

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Source

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Judgment (23 paragraphs)

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Legislation Cited (3)

Cases Cited (2)

Cited By (3)