FEDERAL COURT OF AUSTRALIA O'Meara v Registrar General of NSW [2000] FCA 1769 KENNETH IAN O'MEARA v REGISTRAR GENERAL OF NEW SOUTH WALES & ORS N 191 OF 2000 BRANSON, LINDGREN & MARSHALL JJ SYDNEY 1 DECEMBER 2000 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 191 OF 2000 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: KENNETH IAN O'MEARA APPELLANT AND: REGISTRAR GENERAL OF NEW SOUTH WALES FIRST RESPONDENT STATE OF NEW SOUTH WALES SECOND RESPONDENT COMMONWEALTH OF AUSTRALIA THIRD RESPONDENT JUDGE: BRANSON, LINDGREN & MARSHALL JJ DATE OF ORDER: 1 DECEMBER 2000 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondents' costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 191 OF 2000 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: KENNETH IAN O'MEARA APPELLANT AND: REGISTRAR GENERAL OF NEW SOUTH WALES FIRST RESPONDENT STATE OF NEW SOUTH WALES SECOND RESPONDENT COMMONWEALTH OF AUSTRALIA THIRD RESPONDENT JUDGE: BRANSON, LINDGREN & MARSHALL JJ DATE: 1 DECEMBER 2000 PLACE: SYDNEY REASONS FOR JUDGMENT 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. Ground 1: The trial Judge was not entitled to make the orders of 18 February 2000 because the respondents had failed to file and serve notices of motion supported by affidavit as required. 9 Order 19 subrule 1(2) provides that: "[A] motion shall be supported by affidavit setting forth the facts relied upon." 10 This rule does not require that in every case a motion be supported by affidavit. According to the nature of the case the moving party may not need to rely on facts to be proved by that party. His Honour was entitled on the affidavit of Mr O'Meara alone to find that no reasonable cause of action was disclosed, as the respondents contended. In any event the third respondent did support its motion with an affidavit. 11 There is no merit in the first ground of appeal. Ground 2: That since the respondents had not filed or served defences, Mr O'Meara had been entitled to judgment. 12 There is no substance whatever in this ground. There is no requirement that respondents file defences before being entitled to move for summary dismissal. Ground 3: The primary Judge relied on a matter of which there was no evidence before him. 13 This ground requires some elaboration. The sequestration order bore the signature of Mr Bohringer, the then Registrar of the Federal Court of Bankruptcy, District of New South Wales and the Australian Capital Territory. On the question whether, as Mr O'Meara submitted, the sequestration order was actually made by Mr Bohringer, his Honour said, inter alia: "The mere fact that the order of a court is signed on behalf of the Court by a registrar does not mean that the sequestration order was made by that registrar. It is certainly not a conclusion that would likely be reached in circumstances where Mr Berringer [sic], who was a well known figure and author in the bankruptcy area at that time, would have made an order contrary to a decision of the High Court given some five years before." [The reference is to R v Davison (1954) 90 CLR 353.] 14 In our respectful opinion his Honour was entitled to take judicial notice of the fact that R v Davison was a very important and well known case in the area of Bankruptcy law and administration, and was entitled to think it unlikely that of all people, the Registrar of the Federal Court of Bankruptcy would be unaware of the fact that the decision meant that he, as Registrar, was not entitled to exercise the judicial power of the Commonwealth by making sequestration orders. 15 In any event his Honour's reference was not at the heart of his decision on this aspect of the case. The central point was simply this: the mere fact that the sequestration order was signed by Mr Bohringer did not establish that he had actually made the order. 16 There is no reason to disturb this conclusion and there is every reason to support it. Ground 4: The primary Judge relied on a further matter of which there was no evidence before him. 17 Mr O'Meara refers to the following extract from his Honour's reasons for decision. "From the submissions that Mr O'Meara made, it seems that he had joined the State of New South Wales as a party only because he believed the sequestration order had been made by the Supreme Court of New South Wales. That not being the case, it is clear that the proceedings would necessarily have to be dismissed against the State of New South Wales." (our emphasis) 18 There is no substance in Mr O'Meara's criticism of this passage. No basis was shown for Mr O'Meara's having joined the State of New South Wales as a party. In seeking to identify some basis on which Mr O'Meara may have thought that the State may have had some involvement, his Honour referred to the fact that Mr O'Meara had apparently believed that the sequestration order had been made by the Supreme Court of New South Wales. In para 2 of his affidavit sworn 17 November 1999, Mr O'Meara had said: "…I have … discovered that the sequestration order was made by a Registrar of the Federal Court of Bankruptcy, heard in the Supreme Court of New South Wales, at a time when a Registrar could not exercise the judicial power of the Commonwealth." (our emphasis) 19 Clearly it was this passage in Mr O'Meara's affidavit that prompted his Honour's suggestion. But if it was something else that prompted Mr O'Meara to join the State of New South Wales, the joinder was equally misconceived. Ground 5: That his Honour erroneously thought that Mr O'Meara would not suffer detriment because of non-service of the first respondent's notice of motion on him. 20 According to the notice of appeal, the primary Judge stated to Mr O'Meara: "You will not suffer detriment because of non-service of the first respondent's notice of motion upon yourself." 21 The three notices of motion that were before his Honour sought relief identical in form, therefore there could be no detriment to Mr O'Meara if one, or even two of them, had not been served on him. On the hearing this morning Mr O'Meara was not able to suggest any detriment he had suffered as a result of non-service on him of one of the three notices of motion. Other matters 22 In his written submissions Mr O'Meara seeks to raise a range of matters which are not reflected at all in his notice of appeal. Upon our raising with him the necessity that his notice of appeal be amended, Mr O'Meara asked for leave to amend. Of course he did not tender a proposed form of amended notice of appeal. The respondents opposed the application for leave to amend. 23 We refuse leave to amend for the following reasons. The notice of appeal was filed as long ago as 8 March 2000. Mr O'Meara has not explained to our satisfaction why he has raised the matters so late as this morning. The matters referred to in the submissions raise evidentiary matters not dealt with before his Honour. Other submissions not raising evidentiary matters were not raised before the primary Judge and we do not have the benefit of his Honour's consideration of them. Mr O'Meara says that some of his submissions of today raise constitutional matters, but as Hunt J stated in Green v Jones (1979) 39 FLR 428 (at 434): "…it is not sufficient that the plaintiff bona fide and genuinely believes that his challenge involves a matter arising under the Constitution. He must establish that it does involve such a matter." 24 In our view the matters raised in Mr O'Meara's submissions do not raise matters arising under the Constitution. 25 For the above reasons, the appeal will be dismissed with costs. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Branson, Lindgren and Marshall. Associate: Dated: 6 December 2000 The appellant appeared in person. Counsel for the First Respondent: T H Barrett Solicitor for the First Respondent: Solicitor for the Registrar General of New South Wales Solicitor for the Second Respondent: J McDonnell, Solicitor, of the Crown Solicitor's Office for the State of New South Wales Solicitor for the Third Respondent: S Vorreiter, Solicitor, of the Australian Government Solicitor's Office Date of Hearing: 1 December 2000 Date of Judgment: 1 December 2000