Hassin v Australia & New Zealand Banking Group Limited [2003] FCA 219

FEDERAL COURT OF AUSTRALIA

Hassin v Australia & New Zealand Banking Group Limited [2003] FCA 219 HASSIN v AUSTRALIA & NEW ZEALAND BANKING GROUP LIMITED N 1225 OF 2002 STONE J 7 MARCH 2003 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1225 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: ROGER SOLOMON HASSIN

APPELLANT

AND: AUSTRALIA & NEW ZEALAND BANKING GROUP LIMITED

RESPONDENT

JUDGE: STONE J

DATE OF ORDER: 7 MARCH 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondents costs of the appeal and of this notice of motion.

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 1225 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: ROGER SOLOMON HASSIN

APPELLANT

AND: AUSTRALIA & NEW ZEALAND BANKING GROUP LIMITED

RESPONDENT

JUDGE: STONE J

DATE: 7 MARCH 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 I have before me today a notice of motion filed on 27 February 2003 seeking to dismiss this appeal. It is an appeal from sequestration orders made in the Federal Magistrates Court on 15 November 2002. For the sake of convenience I will refer to Mr Hassin as the appellant and the Australia and New Zealand Banking Group as the respondent, although I note that the latter is actually the applicant on this notice of motion. 2 The notice of appeal was filed on 19 November 2002. A directions hearing before me was held on 12 December 2002 at which time the appellant appeared by his solicitor Mr McKell. At that time I listed the proceedings for hearing on 19 March 2003 and made an appointment for the settling of the appeal books on 30 January 2003. Since that time it would appear that the appellant has done nothing to progress the appeal despite numerous further orders having been made by, amongst others, Registrar Kavallaris and multiple attempts by the respondent to ascertain the appellant's intentions. 3 Ms Suzanne Agius, an employed solicitor of Blake Dawson Waldron and the person with the day to day conduct of this matter for the respondent, swore an affidavit in support of this notice of motion on 25 February 2003. The affidavit stated, inter alia, that: (a) On 20 November 2002 Mr McKell, the appellant's solicitor at that time, advised the respondent that he was seeking instructions to discontinue the appeal. This advice was confirmed by letter dated 3 December 2002. (b) On or about 24 January 2003 Mr McKell served the respondent with a notice that he had ceased to act for the appellant and stated that the appellant's last known address was 178 Trafalgar Street, Annandale ('Trafalgar Street'). (c) On 28 January 2003 the respondent's solicitors sent to Trafalgar Street, by courier, a letter addressed to the appellant. The letter asked whether the appellant had retained new solicitors; reminded the appellant of the 30 January 2003 appointment for settling the appeal books; and reminded the appellant of his obligation under the Federal Court Rules ('Rules') to file and serve a draft appeal index one week before 30 January 2003. (d) The appellant failed to appear at the appointment scheduled for the settlement of the appeal books on 30 January 2003 or to file or serve a draft appeal index in accordance with the Rules. (e) On 30 January 2003 Registrar Kavallaris gave directions that, inter alia, the appellant was to file and serve an amended index as settled between the parties by 13 February 2003 and that the appeal books were to be filed and served before 3 March 2003. (f) On 3 February 2003 the respondent's solicitors wrote to the appellant informing him of the orders made by Registrar Kavallaris. This letter was delivered to Trafalgar Street by commercial process servers. The letter also informed the appellant of the respondent's intention to seek that the proceedings be dismissed. (g) The appellant has not complied with Registrar Kavallaris' direction that he serve an amended index by 13 February 2003 and to date the respondent has had no further communication whatsoever from the appellant. 4 An affidavit of service sworn by Mr Haitch Leach on 7 February 2003 attests to the respondent's attempts to contact the appellant at Trafalgar Street. Affidavits of service sworn by Mr Leach, Mr John Wooldridge and Mr Bill Smyth on 6 March 2003 and filed in Court today outline the respondent's attempts to serve the appellant with the notice of motion and affidavit in support. Attempts were made at Trafalgar Street, at his former matrimonial home at 37 Carlisle Street, Rose Bay and at Avanti Car Rentals of 1 Church Street, Mascot the appellant's last known business address. 5 I am conscious that in hearing an appeal from the Federal Magistrates Court this court is acting in its appellate capacity although in this case, by order of the Chief Justice, the matter is to be heard by a single judge. The consequence of the court acting in its appellate capacity is that any order I make today would be subject to appeal only by special leave of the High Court of Australia. I am satisfied however that there is good reason why the appeal should be dismissed. 6 The evidence of the respondent is thorough and uncontradicted. The appellant has failed to appear before the court on several previous occasions. He has not appeared today although his name has been called outside the court and I am satisfied that all appropriate attempts have been made to notify him of this motion. 7 Therefore, in accordance with O 52 r 38(1)(a) of the Rules I order that the appeal be dismissed for want of prosecution and that the appellant pay the respondent's costs of the appeal and of this notice of motion. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.