O'Meara v Registrar General of NSW [2000] FCA 1769

THE COURT: 1 The appellant ("Mr O'Meara") appeals from a judgment given on 18 February 2000 by which the primary Judge ordered that the proceeding be dismissed as against each of the respondents on motions brought by them for summary dismissal under Order 20 rule 2 of the Federal Court Rules. 2 The parties have treated the dismissal as a final judgment or order from which Mr O'Meara is entitled to appeal as of right. Order 20 rule 2 specifies the following grounds of summary dismissal. "(a) no reasonable cause of action is disclosed; (b) the proceeding is frivolous or vexatious; or (c) the proceeding is an abuse of the process of the Court." 3 The primary Judge recorded that Mr O'Meara agreed that all the evidence on liability which he proposed to adduce was filed. His Honour addressed the evidence on which Mr O'Meara relied. We think it clear that the ground on which his Honour acted was that no reasonable cause of action was disclosed. 4 Like the parties we will treat the dismissal as a final judgment or order, and will regard Mr O'Meara as having a right of appeal from it. 5 Mr O'Meara sought, in substance, an order that a sequestration order which had been made on 16 December 1959 against his late father, Edgar Herbert O'Meara, be annulled. As the learned primary Judge observed there was a threshold question as to whether Mr O'Meara had standing in view of the fact that he was not the legal personal representative of his late father. Apparently he informed the primary Judge from the bar table that he was the sole beneficiary named in his father's will, but conceded that he was not the executor of that will. His Honour did not need to resolve the question of standing because he acceded to the respondents' motions for summary dismissal on other grounds. 6 Before his Honour, Mr O'Meara submitted that the sequestration order should be annulled for the following reasons: · The order was made by a Registrar of the Federal Court of Bankruptcy who was not entitled to exercise the judicial power of the Commonwealth, yet did so by making the order. · The debtor was denied natural justice in that the sequestration order was made in his absence. · The sequestration order was procured by fraud and deceit. 7 As was, with respect, inevitable on the evidence before him, the primary Judge found that it was not established: that the sequestration order had been made by the Registrar rather than by a Judge of the Court (the documentary order was signed by the Registrar); that the debtor had not been afforded the protection of natural justice, or that there was evidence of fraud or deceit. 8 Mr O'Meara refers to the grounds set out below in his notice of appeal.