Evangelista v CPS Credit Union (SA) Ltd [2005] FCA 345

FEDERAL COURT OF AUSTRALIA

Evangelista v CPS Credit Union (SA) Ltd [2005] FCA 345

PRACTICE AND PROCEDURE – application for extension of time – application for leave to appeal – whether decision of Federal Magistrate attended by sufficient doubt to warrant reconsideration – whether substantial injustice would result if leave were refused.

Bankruptcy Act 1966 (Cth), ss 120 and 121

Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 applied JORDAN JOSHUA EVANGELISTA v CPS CREDIT UNION (SA) LTD SAD 276 of 2004 LANDER J 22 MARCH 2005 ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SAD276 OF 2004

BETWEEN: JORDAN JOSHUA EVANGELISTA

APPLICANT

AND: CPS CREDIT UNION (SA) LTD

RESPONDENT

JUDGE: LANDER J

DATE OF ORDER: 22 MARCH 2005

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The application for an extension of time within which to file and serve a notice of appeal is dismissed on the ground that the application is incompetent. 2. Insofar as that application could be treated as an application for leave to appeal, leave to appeal is refused. 3. The applicant to pay the respondent's costs of the proceedings in this Court. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SAD276 OF 2004

BETWEEN: JORDAN JOSHUA EVANGELISTA

APPLICANT

AND: CPS CREDIT UNION (SA) LTD

RESPONDENT

JUDGE: LANDER J

DATE: 22 MARCH 2005

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 On 21 December 2004 the applicant filed an application for an extension of time to file and serve a notice of appeal from a judgment of Lindsay FM given on 29 October 2004. The application was accompanied by an affidavit and a draft notice of appeal. In my opinion, for the reasons which follow, the application is misconceived because the judgment which is sought to be appealed from is an interlocutory judgment and the applicant not only needs leave to appeal from that judgment, but also an extension of time within which to seek that leave to appeal. 2 These proceedings were commenced by the applicant on 26 November 2003 and relate to an application by him to annul a sequestration order made on 24 June 2002. During the relevant period the applicant was in prison in South Australia. The applicant's application was dismissed on 10 February 2004 for want of prosecution, but with liberty to the applicant to apply to reinstate the proceeding provided that such an application was brought within one month. The applicant sought to reinstate the proceedings within that time. 3 On 23 March 2004 Mead FM set a timetable for the hearing of the original application and ordered that the trial of the application be heard on 19 May 2004. The Federal Magistrate who was to hear the matter became unavailable, and the matter was adjourned until 28 June 2004. In the meantime, the applicant was ordered to file and serve an affidavit within 21 days dealing, inter alia, with his solvency generally. The applicant did not comply with that direction and the matter was further adjourned until 6 July 2004. At that hearing on 28 June 2004 an order was made extending the time within which to comply with that earlier direction. 4 On 5 July 2004 the respondent filed a notice of motion seeking summary judgment on the ground that the applicant had not complied with the first order made by Lindsay FM on 20 May 2004 and the order extending time within which to comply with that previous order made by the same Federal Magistrate on 28 June 2004. On 6 July 2004 Lindsay FM made further directions and ordered the applicant to file an affidavit as to solvency and a statement of affairs before the next hearing. The matter was adjourned until 13 August 2004. When the matter came before the Federal Magistrate again on that date, the applicant had not filed and served the affidavit which had been ordered to be filed and served on 6 July 2004. 5 Notwithstanding the applicant had failed to comply with three orders of the Court made on three separate occasions, the matter was listed for trial on 24 September 2004. It seemed surprising to me that the Court listed the matter for trial in circumstances where the applicant had still not by that stage provided the Court with any evidence of his solvency generally. 6 On 28 August 2004 the applicant advised the Court in writing that the matter would need to be adjourned because he was to undergo a knee reconstruction at the Royal Adelaide Hospital between 20 September and 5 October 2004. The matter was called on on 17 September 2004, I think at the behest of the respondent who opposed the suggested adjournment. During that hearing the applicant admitted that the surgery had been postponed. The application for adjournment was refused and the matter remained listed for 24 September 2004. 7 On the day of the hearing the applicant failed to appear, apparently, as the Court was later advised, because he had collapsed and been admitted to hospital. O'Dwyer FM struck out the proceeding with a right to apply to reinstate within 14 days, upon the applicant providing the Court with a medical report giving sufficient detail of any recent medical condition the applicant may have suffered that precluded his attendance at Court. The particular orders made by the Federal Magistrate on 24 September 2004 were: '1. That this proceeding is struck out with the right to apply for reinstatement within 14 days upon the applicant providing to the Court a medical report from a suitably qualified Medical Practitioner giving sufficient detail of any recent medical condition the applicant may have suffered that precluded his attendance at court today. 2. The applicant pay the respondent's costs of the proceeding.' 8 On 8 October 2004 the applicant faxed an application to the Court seeking reinstatement of the proceedings. He enclosed, I think, a certificate of sickness from the Waikerie Hospital dated 24 September 2004. The matter was set down for hearing for 29 October 2004 when the applicant attended with the certificate from the medical officer of the Waikerie Hospital and notes from the Royal Adelaide Hospital stating that the applicant was to be given a heart monitor. The applicant did not file an affidavit at this stage, but I think the documents which were produced to the Federal Magistrate comprised the following: 1. Certificate of sickness dated 24 September 2004 signed by a medical practitioner advising that the applicant had been suffering a medical complaint on 23-24 September 2004. 2. A letter from a medical practitioner dated 12 October 2004 relating to the applicant's admission to the Wakefield Hospital on 23 September 2004 and his release on the morning of 24 September 2004. 3. An advice of appointment to attend the Royal Adelaide Hospital on 1 December 2004. 4. An advice of appointment to attend the Royal Adelaide Hospital on 12 November 2004. 5. A facsimile from the Department of Correctional Services, undated but enclosing two emails dated 23 September 2004. 6. An appointment outpatient advice of the Royal Adelaide Hospital for 1 December 2004. 9 The Federal Magistrate, before whom the application to reinstate came, did not give reasons but dismissed the applicant's oral application to reinstate his application. Apparently, although it is not entirely clear, the order was made upon the basis that the applicant had not complied with the order made by O'Dwyer FM on 24 September 2004. 10 On 21 December 2004 the applicant filed this application in this Court. He has provided this Court with one further report, being a report of Mary Edwards, a clinical nurse, who writes: 'Jordon was admitted to Waikerie District Hospital via ambulance on morning of Thursday, 23rd September following a witnessed collapse. Discharged from Waikerie Hospital at approximately 1130 on Friday 24th September. Returned to Cadell Training Centre, condition deteriorated over the course of the afternoon, transferred to the Royal Adelaide Hospital via Air Ambulance approximately 5 p.m. Friday 24th September. Discharged from the RAH in the afternoon of Saturday 25th September to the Yatala Prison Infirmary where he remained until stable.' 11 It would have been better if the Federal Magistrate who heard this application for reinstatement had given reasons for his refusal of the application. There was evidence before the Federal Magistrate that the applicant could not attend the hearing because of a sudden and unexpected illness. The Federal Magistrate did not give reasons why he rejected that evidence and why he had apparently formed the view that the applicant had not complied with the previous order of O'Dwyer FM. 12 The applicant is no longer within the prison system in South Australia. He had been sentenced to prison as a result of stealing money from the ANZ Bank. The ANZ Bank claims to be a creditor of the applicant to the extent of a sum in excess of $143,000. The applicant claims that he is not indebted to the ANZ Bank because when he was convicted no order was made for repayment of the money to the bank. That argument, of course, is completely without merit and could never succeed in opposing the ANZ's claim as a creditor. 13 The respondent claims that the applicant's creditors amount to $200,562.09. The respondent itself is a creditor to the extent of $4,210.65. The statement of affairs seems to suggest that the applicant has no assets. I asked the applicant whether he had any assets. He prevaricated, but eventually admitted that his only assets amounted to $200. He said, however, that his mother would provide him with money from a family trust. I pointed out to him that if he borrowed money, he would not only increase his assets by the amount of the borrowing but also increase his liabilities by the same amount. He said that his mother would give him the money. 14 I am not convinced that the applicant has any assets or any access to assets. It is a fact that the applicant has never, since the proceedings were commenced in the Federal Magistrates Court, provided any evidence of solvency, notwithstanding the orders of the Court. In fact, the applicant has not complied with any of the directions of the Court at any time. 15 The respondent asserts that these proceedings have been unnecessarily delayed since commenced by the applicant on 26 November 2003. It asserts that the delay has been deliberate and for the purpose of defeating the applicant's creditors. 16 The applicant's trustee has brought separate proceedings pursuant to ss 120 and 121 of the Bankruptcy Act 1966 (Cth) which apparently have been heard since the Federal Magistrate made his order in these proceedings. I think they have not yet been determined. 17 The order refusing the applicant's application to reinstate the proceedings is undoubtedly interlocutory; it does not finally dispose of the issues between the parties. In those circumstances, as I have already said, the applicant requires leave to appeal. 18 The principles on an application for leave to appeal are well settled: see Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. In that case, it was said that the grant or refusal of leave would depend upon whether: (1) in all the circumstances, the decision is attended by sufficient doubt to warrant it being reconsidered by the appellate Court; and (2) substantial injustice would result if leave were refused, supposing the decision to be wrong. 19 In my opinion, as I have already said, it would have been better if the Federal Magistrate had given reasons for his refusal to reinstate the proceedings. There was undoubtedly before him some evidence to support the applicant's submission that he was unable to attend the hearing on 24 September 2004 because of a sudden and unexpected illness. It may have been that the Federal Magistrate was not satisfied that the evidence supported the submission, but if that were the case he should have said so. There is some doubt about whether or not the Federal Magistrate's decision is correct. However, I have no doubt that even if the Federal Magistrate's decision is incorrect no substantial injustice would result to the applicant if leave were refused. 20 It is clear beyond doubt, in my opinion, that the applicant is insolvent. He has not complied with any order of the Court made at any time since he initiated these proceedings. I am satisfied, as the respondent contends, that these proceedings have been brought for the purpose of delaying the trustee administering the applicant's estate. The history of the matter generally, including the application for the adjournment on 17 September, indicates an unwillingness on the part of the applicant to prosecute the proceedings. 21 The history of the matter, which I have recounted, shows that the applicant would suffer no injustice by refusing leave to appeal. The application for an extension of time within which to file and serve a notice of appeal is dismissed on the ground that the application is incompetent. Insofar as that application could be treated as an application for leave to appeal, leave to appeal is refused. There will be an order that the applicant pay the respondent's costs of the proceedings in this Court. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.