JUDGMENT No, \$77 7 ¢@ so eer ey, IN THE FEDERAL COURT OF AUSTRALIA ) LIMITED DISTRIBUTION ) WESTERN AUSTRALIAN ) ) ) DISTRICT REGISTRY GENERAL DIVISION NO. WAG 62 OF 1985 ON APPEAL from the Honourable Mr. Justice Toohey BETWEEN: EMMANUEL GEORGE DOUKIDIS Appellant and CONSOLIDATED CONSTRUCTIONS PTY LTD First Respondent and PETER MICHAEL MELSOM as Trustee of the Estate of Emmanuel George Doukidis Second Respondent JUDGE MAKING ORDER: FRENCH J. DATE OF ORDER: 29 MARCH 1988 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The matter be listed for further directions on 11 April 1988 at 2.15 pm Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA ) LIMITED DISTRIBUTION ) WESTERN AUSTRALIAN ) ) ) DISTRICT REGISTRY GENERAL DIVISION NO. WAG 62 OF 1985 ON APPEAL from the Honourable Mr. Justice Toohey BETWEEN: EMMANUEL GEORGE DOUKIDIS Appellant and CONSOLIDATED CONSTRUCTIONS PTY LTD First Respondent and PETER MICHAEL MELSOM as Trustee of the Estate of Emmanuel George Doukidis Second Respondent CORAM: FRENCH J. 29 March 1988 REASONS FOR JUDGMENT ON APPLICATION FOR ORDER THAT APPEAL BE ALLOWED BY CONSENT On 17 September 1984 the appellant entered into a composition with his creditors under Part X of the Bankruptcy Act 1966. On the application of the first respondent, Toohey J. made an order on 26 June 1985 setting aside the composition under sub-s.239(1) of the Act. On 16 July 1985 the present appeal against that decision was instituted. It came on for hearing before a Full Court comprising Sweeney, Sheppard and Beaumont JJ on 16 September 1985. At that time the appellant and the first respondent had reached some accommodation and sought an order by 2. consent that the appeal be allowed, the order made by Toohey J. be set aside and in lieu thereof it be ordered that the application seeking to set aside the composition be dismissed. The trustee, who appeared by counsel, neither consented to nor opposed the orders sought by the appellant. He did however file an affidavit in which he expressed some concern that the matters raised in the appeal might be disposed of without argument. He also exhibited to the affidavit a copy of a circular sent to creditors advising of the history and the fact that the first respondent proposed to consent to the order allowing the appeal. When the appeal came before the Full Court the presiding judge indicated that he would need to be persuaded that it was appropriate for the Court to set aside the order made by Toohey J. The appeal was adjourned to 10.15 am on 18 September and on that day was adjourned by consent to a date to be fixed. Nothing further happened until the matter was brought up for mention before me on 7 December 1987. At that time the parties again sought to obtain consent orders in the same form as those sought from the Full Court in 1985. The second respondent indicated, by counsel, that he would consent to the orders sought provided he was paid his costs. I reserved to consider whether I had jurisdiction to handle the consent order or whether the matter should be referred to the next sittings of the Full Court. 3. I am satisfied that to make a consent order disposing of appeal proceedings is to exercise the appellate jurisdiction of the Court. Sub-section 25(1) of the Pederal Court of Australia Act provides:- "The appellate jurisdiction of the Court shall, subject to this section and to the provisions of any other Act, be exercised by a Full Court." There is no other relevant provision in this section which would confer upon a single judge jurisdiction to make an order of the kind which is now proposed. In the circumstances it would seem that the only way in which the appeal can be disposed of is by discontinuance on the part of the appellant pursuant to 0.52 r.19 or by an appropriate order of the Full Court. I can see no reason to suppose that the Full Court would not want to be persuaded of the appropriateness of a consent order setting aside the judgment appealed from. In the circumstances I think the best course is to bring the matter back for further directions. In the event that the appellant is not prepared to pursue the matter, I will refer it to the Full Court to consider whether of its own motion it should strike the appeal out for want of prosecution pursuant to 0.58 r.38(2). 4. I certify that the preceding three (3) pages are a true copy of the Reasons for Judgment of his Honour Justice French. Associate: ADebeob Wye te Date: ZO Mark iF6% Counsel for the Applicant: Mr M.J. Hawkins Solicitors for the Applicant: McCusker & Harmer Counsel for the First Respondent: Mr J. Hammond Solicitors for the First Respondent: Kott Gunning Counsel for the Second Respondent: Miss T. Sweeney Solicitors for the Second Respondent: Robinson Cox Date of Hearing: 7 December 1987 Date of Judgment: 30 March 1988