FEDERAL COURT OF AUSTRALIA Maher v Commonwealth Bank of Australia & Ors [2007] FCA 560 PRACTICE AND PROCEDURE – Application for leave to appeal from an interlocutory judgment – Leave Refused Federal Court Rules Supreme Court (General Civil Procedure) Rules 2005 (Vic) Maher v Commonwealth Bank of Australia [2004] FCA 1441 referred to Maher v Commonwealth Bank of Australia [2007] FCA 113 referred to DENNIS MAHER v COMMONWEALTH BANK OF AUSTRALIA (ACN 123 123 124), GREG FIRTH, GRAY & JOHNSON (A FIRM), THE REGISTRAR OF TITLES (VICTORIA) AND THE OFFICIAL TRUSTEE IN BANKRUPTCY VID 149 OF 2007 TRACEY J 20 APRIL 2007 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VID 149 OF 2007 BETWEEN: DENNIS MAHER Applicant AND: COMMONWEALTH BANK OF AUSTRALIA (ACN 123 123 124) First Respondent GREG FIRTH Second Respondent GRAY & JOHNSON (A FIRM) Third Respondent THE REGISTRAR OF TITLES (VICTORIA) Fourth Respondent THE OFFICIAL TRUSTEE IN BANKRUPTCY Fifth Respondent JUDGE: TRACEY J DATE OF ORDER: 20 APRIL 2007 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The application for leave to appeal from the judgment of Jessup J, given on 14 February 2007 is refused. 2. The applicant pay the first, second and third respondents' costs of the application other than its costs of the hearing on 22 March 2007. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VID 149 OF 2007 BETWEEN: DENNIS MAHER Applicant AND: COMMONWEALTH BANK OF AUSTRALIA (ACN 123 123 124) First Respondent GREG FIRTH Second Respondent GRAY & JOHNSON (A FIRM) Third Respondent THE REGISTRAR OF TITLES (VICTORIA) Fourth Respondent THE OFFICIAL TRUSTEE IN BANKRUPTCY Fifth Respondent JUDGE: TRACEY J DATE: 20 APRIL 2007 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 This is an application for leave to appeal from a judgment of Jessup J handed down on 14 February 2007. 2 His Honour dismissed two motions of which the applicant had given notice on 20 November 2006. The first motion sought: "A declaration that until reasons for decision are provided by the Honourable Mr Justice Finkelstein in respect of the Order made 26 July 2005, the said Orders of 26 July 2005 are not capable of enforcement." The second motion was for an order: "That the Certificate of Taxation on 9 June 2006 and/or 24 July 2006 be set aside for want of jurisdiction, the Order pursuant to which it was conducted not being entered until 20 September 2006." The applicant, Mr Maher, appeared in person before Jessup J. This no doubt explains the lack of precision with which the orders sought were drafted and some of the difficulties which emerged in the course of argument before his Honour. 3 Leave is only sought to appeal from his Honour's decision to dismiss the second motion. 4 In order to place the motions in some context it is necessary to recount part of the procedural history of the litigation between Mr Maher and the respondents. A more detailed account of the many encounters between the parties is to be found in the reasons for judgment of North J in Maher v Commonwealth Bank of Australia [2004] FCA 1441 at [2], [3], [5], [6] and in the reasons of Jessup J: Maher v Commonwealth Bank of Australia [2007] FCA 113 at [2]-[7], [12]-[14]. It is sufficient for present purposes to record that, on 2 February 2004, and, again on 5 February 2004, Finkelstein J made costs orders against Mr Maher and in favour of certain of the respondents. Mr Maher did not lodge an appeal against Finkelstein J's orders. An application for an extension of time within which to appeal against the orders, made on 5 February 2004 was refused by Heerey J on 11 May 2004. A further attempt, by application dated 18 June 2004, to impugn Finkelstein J's orders was made in the High Court. The application was refused. On 4 November 2004 a Registrar of the Court issued certificates of taxation. They related to orders which had been made by the Court on 26 September 2001 and the orders made by Finkelstein J on 2 and 5 February 2004. On 9 February 2005 a Registrar entered an order requiring Mr Maher to pay the costs identified in the two certificates to the first, second and third respondents. 5 By notice of motion dated 8 July 2005 Mr Maher sought orders setting aside the Registrar's order, made on 9 February 2005, and the two certificates of taxation issued on 4 November 2004. It was that notice of motion that came on before Finkelstein J on 26 July 2005. Mr Maher, in an affidavit filed in support of his motion, stated that the certificate of taxation relating to the costs order made on 26 September 2001 and the order of 9 February 2005 could not stand because the costs orders, made by Finkelstein J on 26 September 2001 had been set aside by a Full Court. Having heard argument Finkelstein J made orders which included orders that: "2. The certificates of taxation of the costs ordered to be paid by the Honourable Justice Finkelstein on 26 September 2001, 2 February 2004 and 5 February 2004 but (sic) set aside. 3. The order of the Deputy Registrar made on 9 February 2005 be set aside." It is notable that his Honour did not interfere with the costs orders which he had made on 2 and 5 February 2004. As Jessup J found, Mr Maher's notice of motion of 8 July 2005 did not seek orders setting aside the costs orders made on 2 and 5 February 2004; nor was any such application made orally in the course of argument before Finkelstein J on 26 July 2005. 6 On 9 June 2006 a certificate of taxation was issued in relation to the costs orders made on 2 and 5 February 2004. These costs were not paid. On 24 July 2006 a Registrar ordered Mr Maher pay the sum identified in the certificate to the first, second and third respondents. 7 Counsel appearing for Mr Maher advised the Court that the reference, in the second motion considered by Jessup J, to a document dated 24 July 2006 should be understood as a reference to the orders made on that day rather than to a certificate of taxation. Counsel further explained that the reference to "the order pursuant to which it was conducted" in the order sought in the second motion was to be understood as a reference to the orders numbered two and three made by Finkelstein J on 26 July 2005 which appear above at [5]. It was explained that Mr Maher sought to contend that the Registrar did not have jurisdiction to issue a further certificate and order relating to the costs orders, made by Finkelstein J on 2 and 5 February 2004, unless and until the certificate issued on 4 November 2004 and the order made on 9 February 2005 were set aside. This, it was contended, did not occur until the orders made by Finkelstein J on 26 July 2005 were entered on 20 September 2006. 8 I invited counsel appearing for Mr Maher before me to explain the legal basis of the foreshadowed challenge to the certificate issued on 9 June 2006 and the order made on 24 July 2006. It was common ground that these documents issued, respectively, under O 62 r 45(1), 45(3) of the Federal Court Rules. Counsel acknowledged that, under O 35, r 3 an order of the Court takes effect on the date on which it is pronounced. However, he submitted that no step, such as the issuing of a certificate or the making of an order under O 62 r 45, could take place before the order was entered. He relied on the provisions of O 36 r 2(1)(d) which provides: "(1) Subject to sub rule (2) an order must be entered if: (a) … (b) … (c) … (d) a step is to be taken under the order; or (e) …" Sub rule (2) is not of present relevance. Counsel submitted that this rule should be construed as prohibiting any step being taken in reliance on an order before it is entered and as rendering any such step purportedly taken as null and void. Reliance was placed on the rather differently worded Order 60.01 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic). That rule provides that, unless the Court otherwise orders, an order shall not be enforced until the order has been authenticated. The rule also stipulates that no step be taken pursuant to an order unless it has previously been authenticated. It is not necessary, for the purposes of determining the present application, to express a concluded opinion on the construction point thus raised. I note, however, that O 36 r 2(1) of the Federal Court Rules, whilst requiring entry of orders in certain circumstances, contains no prohibition on the taking of steps pursuant to the order before it is entered and nothing as to the consequences of any step being taken under an order which has not been entered. 9 The reasons why the construction point does not need to be resolved are, first, that the issuing of the certificate and the making of the order in neither case occurred "under the order" made by Finkelstein J on 26 July 2005. They were, respectively, issued and made under the costs orders made by his Honour on 2 and 5 February 2004. Secondly, and more significantly, the submissions founded on O 36 r 2 which, it was contended, had not been dealt with by Jessup J, were not advanced before him. This is confirmed by a reading of the transcript of argument on 9 February 2007 and his Honour's reasons at [15]. This alleged failure was the only basis on which it was sought to establish error on the part of his Honour warranting the grant of leave to appeal. His Honour can hardly be held to have erred by failing to deal with an argument which was never advanced before him. 10 Furthermore, I am not persuaded that any substantial injustice would be occasioned to Mr Maher by the refusal of his application. Counsel accepted that, even if Mr Maher's construction point succeeded, there was no reason why the certificate should not have been issued or the order been made, after 20 September 2006. There was no evidence of any detriment to Mr Maher occasioned by the issuing of the certificate and the making of the order in the period between 9 June 2006 and 20 September 2006 or, indeed, at any time since. 11 The application for leave to appeal should be refused. 12 The first, second and third respondents should have their costs of the application. Counsel for these respondents sought to have included in these costs the costs incurred when Mr Maher failed to appear on the date originally fixed for the hearing of his application. Mr Maher has provided evidence on affidavit that his failure to appear, on 22 March 2007, was caused by a severe medical condition. He exhibited a doctor's certificate which indicated that he had sought medical help on that day. Although Mr Maher was on notice that the respondents were legally represented, he took no steps, prior to the hearing on that morning, to advise the respondents' legal representatives of his inability to attend Court. He did, however, advise my Associate. Whilst I regard Mr Maher's failure to attempt to advise the respondent's legal representatives of his predicament as discourteous, I accept that he was distracted by his medical problems. Moreover, given that those problems manifested themselves a matter of hours before the appointed time of the hearing, it was, for practical purposes, too late for the hearing to be vacated thereby obviating the need for counsel and solicitor for the respondents to attend. In these circumstances I do not consider that the costs order which I will make should include the respondents' costs incurred on 22 March 2007. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice TRACEY. Associate: Dated: 20 April 2007 Counsel for the Applicant: Mr C Young Solicitor for the Applicant: Katherine Moorhouse Perks Counsel for the Respondent: Mr R Shepherd Solicitor for the Respondent: Alison Harewood Date of Hearing: 28 March 2007 Date of Judgment: 20 April 2007