Patten v New Holland Credit Australia Pty Limited [2007] FCA 240

FEDERAL COURT OF AUSTRALIA

Patten v New Holland Credit Australia Pty Limited [2007] FCA 240 LESLIE ALYN PATTEN v NEW HOLLAND CREDIT AUSTRALIA PTY LIMITED NSD 1594 OF 2006

TAMBERLIN J

23 FEBRUARY 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1594 OF 2006

BETWEEN: LESLIE ALYN PATTEN

Applicant

AND: NEW HOLLAND CREDIT AUSTRALIA PTY LIMITED

Respondent

JUDGE: TAMBERLIN J DATE OF ORDER: 23 FEBRUARY 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The applicant's appeal and counter claim are dismissed. 2. The applicant pay the respondent's costs of this application. 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 NSD 1594 OF 2006

BETWEEN: LESLIE ALYN PATTEN

Applicant

AND: NEW HOLLAND CREDIT AUSTRALIA PTY LIMITED

Respondent

JUDGE: TAMBERLIN J

DATE: 23 FEBRUARY 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an application by the respondent to dismiss the applicant's appeal and counterclaim and also for costs. The basis on which this application is borne is pursuant to O 38 r 2 which empowers the Court, where an appellant has not done any act required to be done or has not prosecuted an appeal with due diligence, to dismiss the appeal for want of prosecution. I am satisfied, having regard to the evidence before me, that the applicant was aware of the hearing of the application today. 2 In fact, when the matter came on for hearing there was no appearance on behalf of the appellant and a telephone call was made to the appellant in which she indicated that she did not intend to appear and she did not recognise the Court's authority in this matter. There were a number of matters raised which indicated that there was no proper pursuit of the application and therefore I am satisfied that there has not been any proper prosecution of the appeal. In those circumstances, it is appropriate that the appeal and the counterclaim be dismissed. 3 I note that I have made an earlier order refusing a stay in this matter and also have made an order striking out the notice of appeal filed on 22 August 2006. Accordingly, the order of the Court in this matter is that the applicant's appeal and counterclaim are dismissed and the applicant should pay the costs of the respondent of this application to the Court on the notice of motion. I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin