Fleet v Royal Society for the Prevention of Cruelty to Animals (NSW) [2004] FCA 1747

FEDERAL COURT OF AUSTRALIA

Fleet v Royal Society for the Prevention of Cruelty to Animals (NSW) [2004] FCA 1747 ROBERT FLEET v Royal Society for the Prevention of Cruelty to Animals (NSW) N 1865 of 2004 JACOBSON J 23 DECEMBER 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1865 of 2004

BETWEEN: ROBERT FLEET

APPLICANT

AND: Royal Society for the Preventionof Cruelty to Animals (NSW)

RESPONDENT

JUDGE: JACOBSON J

DATE OF ORDER: 23 DECEMBER 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. Order 1 made by Registrar Morgan on 14 December 2004 is set aside;

2. The application filed on 14 December 2004 is dismissed; and

3. The applicant pay the respondent's costs of the application to review the decision of Registrar Morgan including the costs of the hearing on 21 December 2004.

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 1865 of 2004

BETWEEN: ROBERT FLEET

APPLICANT

AND: Royal Society for the Preventionof Cruelty to Animals (NSW)

RESPONDENT

JUDGE: JACOBSON J

DATE: 23 DECEMBER 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an application under section 35A(6) of the Federal Court of Australia Act 1976 (Cth) and O 77, r 8 of the Federal Court Rules 1979 (Cth), to review an order of a Registrar of the Court made on 14 December 2004 extending time for compliance with Bankruptcy Notice number NN2878 of 2004 ("the bankruptcy notice") to 18 January 2005. The authorities establish that a review of this kind is a hearing de novo, see Biritz v National Australia Bank Limited 2001 115 FCR 117 ("Biritz") at [4]. 2 The bankruptcy notice was issued by the Official Receiver on 5 November 2004. It was based upon a certificate of judgment issued by the Local Court at Parramatta. The amount of the judgment recovered by the respondent in these proceedings, the Royal Society for the Prevention of Cruelty to Animals (NSW) ("the RSPCA") was $25,298.55. The certificate which is annexed to the bankruptcy notice states the RSPCA recovered judgment against the applicant in these proceedings, Dr Fleet, for this amount on 5 May 2004. 3 On 14 December 2004 Dr Fleet filed an application to set aside the bankruptcy notice. He stated in the application that the bankruptcy notice was served on him on 26 November 2004. Thus, the date for compliance with the bankruptcy notice was 17 December 2004 and the application to set it aside was filed before the expiration of the time fixed for compliance. I should add that Ms Nash, who appears for the RSPCA, told me today that the bankruptcy notice was in fact served on 24 November 2004. Even if that is correct the application made by Dr Fleet was, as Ms Nash conceded, filed before the expiration of the time fixed for compliance with the requirements of the bankruptcy notice. 4 The application to set aside the bankruptcy notice was supported by an affidavit filed by Dr Fleet. The affidavit stated that Dr Fleet's application was made under ss 30, 41(6A) and 41(7) of the Bankruptcy Act 1966 (Cth). Only two grounds were stated in the affidavit and they were set out as submissions. 5 In [4] four of the affidavit Dr Fleet submitted as follows: "I submit that, this Bankruptcy Notice is in relation to a matter that was ALREADY included in my amended Statement of Claim and/or Notice of Motion before/to the Supreme Court of New South Wales, and a final judgment or order has NOT been given. I am seeking relief including damages and costs against the RSPCA NSW exceeding the amount in this Bankruptcy Notice.. 6 In [5] of the affidavit Dr Fleet submitted: "I submit that, the Orders by the Supreme Court of New South Wales Court of Appeal given on the 8th October 1999 in the case FLEET V DISTRICT COURT OF NSW & ORS [1999] NSW CA 363 includes 'Order the second and third opponents to pay the costs of the claimant and the first opponent in this Court, the first opponent's costs being payable as to a submitting party.' For this case, the claimant was the current applicant, and the second opponent was the current respondent. Except for one initial part-payment, my costs have NOT been paid in full.". 7 Dr Fleet annexed to the affidavit a copy of the orders of the Court of Appeal of New South Wales made on 8 October 1999 which included an order that the RSPCA and another party pay Dr Fleet's costs of the proceedings in the Court of Appeal. The Registrar's order of 14 December 2004 extending time for compliance with the bankruptcy notice was expressed to be made under s 41(6A) of the Act and O 77, r 14 of the rules. The order reserved liberty to any party to apply to vary or discharge the order on 24 hours notice. 8 The matter came before another Registrar of the Court on 21 December 2004 and it was referred to me on that day as the duty judge. On that occasion Ms Nash sought to proceed with her application to review the Registrar's order. Dr Fleet indicated he was not ready to proceed and I adjourned the matter for hearing today. Dr Fleet told me today that he was not ready to fully argue the matter. He said that he wanted more time to obtain legal representation and to pursue further inquiries including inquiries in the Local Court at Parramatta.