Zegarac v Dellios [2007] FCA 566

FEDERAL COURT OF AUSTRALIA

Zegarac v Dellios [2007] FCA 566

SLAVICA ZEGARAC v PAUL DELLIOS (TRADING AS DELLIOS WEST & CO) VID58 OF 2007

JESSUP J

27 MARCH 2007

MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID58 OF 2007

BETWEEN: SLAVICA ZEGARAC

Appellant

AND: PAUL DELLIOS (TRADING AS DELLIOS WEST & CO)

Respondent

JUDGE: JESSUP J

DATE OF ORDER: 27 MARCH 2007

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1. The respondent's motion of which notice was given on 5 March 2007 be refused. 2. The respondent pay the appellant's disbursements in connection with that motion. 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 VID58 OF 2007

BETWEEN: SLAVICA ZEGARAC

Appellant

AND: PAUL DELLIOS (TRADING AS DELLIOS WEST & CO)

Respondent

JUDGE: JESSUP J

DATE: 27 MARCH 2007

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 By orders made on 15 December 2006 and entered on 12 January 2007, Marshall J ordered that: (1) The application to review the judgment of Registrar Mussett of 18 May 2006 is dismissed. (2) The judgment debtor pay the applicant creditors and the trustees costs of the proceeding, such costs to be costs in the bankruptcy. (3) Leave to reopen the proceeding is refused. 2 By Notice of Appeal filed on 29 January 2007, the appellant appealed from the whole of Marshall J's judgment. Her grounds of appeal ran to 36 paragraphs of single-spaced type and occupied about seven A4 pages. 3 By a Notice of Motion filed on 5 March 2007, the respondent has today moved the court for the following orders; (1) That the appellant amend her Notice of Appeal so that it briefly but specifically states the grounds relied on in support of the appeal in compliance with O 52 r 13(2)(b). (2) Alternatively, that this proceeding be stayed pending the hearing and determination of the appellant's special leave application to the High Court, number M5 of 2007. 4 Marshall J's judgment was given on an application to review a decision of the Registrar to make a sequestration order in relation to the appellant. That order was based upon an act of bankruptcy which arose by reason of a bankruptcy notice served on the appellant by the respondent. In December 2005 the Federal Magistrates Court dismissed the appellant's application to set aside the bankruptcy notice. The appellant subsequently applied for an extension of time to appeal against the judgment of the Federal Magistrates Court, and that application came before Marshall J sitting as a single member of the court in December 2006. His Honour refused that application and the appellant subsequently sought the special leave of the High Court of Australia to appeal against that refusal. 5 It is that High Court proceeding which is the subject of the alternative motion referred to in the respondent's notice, while the Notice of Appeal referred to in the first motion is the proceeding presently before the court, namely, the appeal from Marshall J's judgment in the review proceedings from the decision of the Registrar. 6 I deal first with the respondent's motion that the appellant be required to amend her Notice of Appeal so that it briefly but specifically states the grounds relied on in support of that appeal. The respondent relies upon O 52 r 13 of the Rules of Court, which requires that a Notice of Appeal state (a) whether the whole or part only, and what part, of the judgment is appealed from; (b) briefly but specifically the grounds relied upon in support of the appeal and (c) what judgment the appellant seeks in lieu of that appealed from. 7 I consider that the motion should be disposed of against the submissions of the respondent without the necessity for the court to determine whether the appellant's Notice of Appeal complies with O 52 r 13(2)(b). For present purposes I am prepared to assume that it does not, but I make no finding to that effect. The motion is unusual in that it seeks an order that the appellant be required to amend her Notice of Appeal. Ms Forsyth, who represented the respondent today, relies upon the power of the court given by O 13 r 2(1), which is in these terms: Subject to the following provisions of this rule, the Court may, at any stage of any proceeding, order that any document in the proceeding be amended, or that any party have leave to amend any document in the proceeding, in either case in such manner as the Court thinks fit. 8 Ms Forsyth was not able to refer me to any instance in which this or any other court had actually ordered the amendment of a document over the opposition of the party whose document it was. In my experience, provisions of the kind referred to in O 13 r 2(1) operate so as to permit a party to amend his or her own document and the expression, "order that any document in the proceeding be amended," is generally understood in that context. 9 If I had taken the view that it was within the power of the court so to proceed and that it was otherwise appropriate for the appellant in effect, to be required to render the Notice of Appeal into a form which complied with O 52 r 13, in my view the proper course would be to exercise such power as I might have to strike out the document whilst at the same time giving the appellant leave to make such amendments as may be necessary to cure the identified defects. One possible way of achieving that would be by a self-executing order. 10 Ms Forsyth relied upon a paragraph in the judgment of the Full Court in Christodoulou v Disney Enterprises Inc [2006] FCAFC 183 in which their Honours referred to an earlier interlocutory order made by Merkel J in that matter. Paragraph 14 of their Honours' reasons was as follows: On 25 October 2005 the applicant filed his appeal which was a thirty-six page document. On 23 November 2005 the respondents applied for orders requiring that the notice of appeal be amended because it did not comply with O 52 r 13(2)(b) of the Rules of Court. That rule provides that the notice of appeal state, 'briefly, but specifically, the grounds relied upon in support of the appeal'. 11 The respondents contended that the Notice of Appeal did not do that. The respondents also sought an order that the applicant provide security for costs in the amount of $70,000. The respondents' application came on for hearing before Merkel J. On 20 December 2005, his Honour ordered that the appeal be struck out because it failed to comply with O 52 r 13(2)(b). He gave leave to the applicant to file an amended Notice of Appeal, and that was subsequently done. The amended Notice of Appeal limited the grounds of appeal. The application for security for costs was adjourned. 12 It seems that there were no published reasons for the order made by Merkel J on 20 December 2005, and Ms Forsyth was not able to point to any provision in the Federal Court of Australia Act 1976 (Cth) ("the Federal Court Act") which would give a single judge the power to strike out a Notice of Appeal for non-compliance with O 52 r 13(2)(b). However that may be, there is now in s 25(2B)(aa) of the Federal Court Acta power for a single Judge to give summary judgment in an appeal. That power was introduced into the Act by the Migration Litigation Reform Act 2005 (Cth), by which amendment s 31A was also included in the Act. Under that section the court may give judgment for one party against the other if the first party is defending the proceeding and the court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding. For the purpose of that section, the proceeding need not be hopeless, or bound to fail, for it to have no reasonable prospect of success. Section 31A commenced operation on 1 December 2005 and would not, therefore, have been available in relation to the appeal in Christodoulou, which was filed on 25 October 2005. 13 Section 25(2B)(aa) was the provision to which Mansfield J had recourse in the more recent case of Zambini v The Secretary of the Department of Employment and Workplace Relations [2006] FCA 1773. That was a case in which the appellant commenced by filing a Notice of Appeal which, on my reading of it, was hopelessly inadequate. Mansfield J held that the document did not state with any specificity – or indeed at all in any comprehensible way – the grounds relied upon in the support of the appeal. He gave the appellant leave to file an amended Notice of Appeal, and the appellant did so. Of that notice, his Honour said: I have read that document carefully to see whether it could in any way identify briefly, but specifically, the grounds relied upon in support of the appeal. I do not think it does. I will not incorporate that document into these reasons simply because of its length. It is discursive. It is assertive about a number of alleged individual factual errors or omissions, but they do not provide any clear picture of the thrust of the appeal. It is not either necessary or appropriate for me to address those individual facts on this application, because the issue is whether the notice of appeal briefly but specifically specifies grounds in support of the appeal, or whether by amendment it could achieve that purpose. The document of 5 December 2006, in response to the opportunity given to Mr Zambini to meet that requirement of the Rules, does not do so. Later in his reasons his Honour said: In my judgment there is no prospect, giving Mr Zambini by a further opportunity to amend his notice of appeal, that he would be able to do so in a way which complies with O 52 r 13(2)(b). That is not simply because I have reached the view that he is unable to express himself in terms which would satisfy that rule. It is also because, as a result of his various responses to the motion referred to above, there is no apparent ground of appeal which might be arguable even if properly expressed. It is plain not simply that O 52 r 13(2)(b) has not been complied with, but that there is no prospect of it being complied with. It is also plain Mr Zambini is unable to express any error on the part of the learned judge at first instance which might give him an arguable prospect of the appeal succeeding, nor to express any error of law on the part of the Tribunal in its decision-making process. 14 It is apparent therefore that Mansfield J disposed of the motion in Zambini substantially because he was not persuaded that the appellant had any prospect of articulating an intelligible basis for his appeal, however his grounds might have been expressed. 15 Returning to the present case, notwithstanding the introduction of par (aa) into subs (2B) of s 25 of the Federal Court Act, I remain unpersuaded that I have power to make an order of the kind which the respondent seeks. The Rules of Court are, of course, subject to the Federal Court Act itself and s 25(1) provides that: The appellate jurisdiction of the court shall, subject to that section and to the provisions of any other Act, be exercised by a Full Court. Subsequent provisions of s 25 make it clear that the legislature has turned its mind to the question of the extent to which procedural motions and the like in an appeal may be dealt with by a single Judge of the court. It is manifest therefore that what subs (1) refers to as the appellate jurisdiction of the court includes occasions upon which such procedural motions require to be dealt with. One of those occasions in which a single judge may exercise the jurisdiction of the court referred to in s 25, is that mentioned in subs (2)(c) thereof, namely, the case of an application for leave to amend the grounds of an appeal to the court. 16 Given that the legislature has thought it necessary to refer specifically to a situation in which an appellant seeks leave to amend his or her grounds of appeal, I do not think there is any room for me to take the view that a power, if otherwise it existed and was proper to be exercised, to require an appellant to amend his or her grounds of appeal over his or her opposition, is likewise implicitly covered by the subsection or any other procedural exception in s 25. 17 That leaves the question of whether I should permit the respondent to convert the present occasion into one in which he seeks an outcome of the kind resorted to by Merkel J in Christodoulou, that is to say one in which the court would make an order, possibly of a self-executing nature, striking out the Notice of Appeal if it is not amended into a form which complies with O 52 r 13. For reasons which I have attempted to explain I think that the only source of a single Judge's jurisdiction to strike out a Notice of Appeal, are those specified in subs (2B) of s 25 of the Federal Court Act. Under that subsection a single Judge may effectively terminate an appeal in a number of circumstances there referred to. Significantly for present purposes, the kind of inadequacies in a Notice of Appeal upon which the respondent here relies are not covered by the subsection. However, I accept that I could take the approach which Mansfield J took in Zambini, but, as with his Honour, I would not be disposed to do that without hearing argument from the parties upon the viability of the appeal as a whole, and I think I would be obliged to approach the question by reference to the criteria specified in s 31A of the Act. That is to say, it would not simply be a question of whether the Notice of Appeal as a document failed to comply with the requirement in the rules that it be brief and specific, but also the substantive question of whether the appeal had any reasonable prospect at all. 18 The appellant is self-represented, and the matters raised by the respondent's motion are essentially technical ones which arise in connection with the statutory and regulatory requirements of the conduct of proceedings in court. In the circumstances, I do not consider it appropriate to permit the respondent effectively to convert this motion into one in which summary disposal of the appeal is sought. The appellant has not been given notice of any such motion, and I must assume that she came here today unprepared to deal with it. 19 For the reasons stated above, I propose to refuse the make the first order sought in the respondent's Notice of Motion. 20 The respondent's ground for seeking the order referred to in the second paragraph of its Notice of Motion – the stay pending the hearing and determination of the appellant's special leave application in the High Court – is that the High Court application brings into question the bankruptcy notice upon which the Registrar's sequestration order was based. The respondent points out with some force that if the result of the High Court proceeding is that the bankruptcy notice itself should be set aside, then each subsequent stage in the bankruptcy proceedings in this court will, in effect, fall away. 21 The respondent says that it would be most efficient and least costly for all concerned if the challenge to the bankruptcy notice were dealt with to finality before the parties were obliged to expend their energies and their resources on the question of whether the sequestration order should have been made, assuming there to be a valid bankruptcy notice. At the general level I am disposed to accept the wisdom of those considerations, and nothing which I say today should be interpreted as suggesting any other course of action. 22 However, the appellant has lodged an appeal which appears to be regular, and prima facie she is entitled to have that appeal heard and determined in the normal course. Although a single Judge of the court has power under s 25(2B)(c) of the Federal Court Act to give directions about the conduct of an appeal to the court, I am not persuaded that that would extend to a direction which stayed the further conduct of the appeal as such. However that may be, it is sufficient for present purposes if I express the view that this appeal has been to a callover before his Honour the Chief Justice on 13 February 2007, at which time he ordered that the matter of the listing of the appeal be adjourned until the next callover on 24 April 2007. 23 The question whether the appeal should proceed in the light of the High Court proceedings is in my opinion pre-eminently one to be considered at the callover of the appeal, or the adjourned call over of the appeal, from time to time. Ms Forsyth has urged upon me the unwisdom of her client being obliged to go to a series of callovers simply to report back on the progress of the High Court application. However, that does seem to me to be an inevitable consequence of the circumstance that the respondent wishes to rely upon the existence of that application as a basis for not proceeding with the appeal which has been lodged in this matter. 24 I think that the grounds upon which the respondent relies are pre-eminently procedural ones of the kind that ought to be considered at a callover and that I should not, even if otherwise I were persuaded that I have power, make an order which would pre-empt the disposition of the questions which regularly come before the Chief Justice in the appeal callovers in the court. 25 For those reasons I will order that the respondent's motion of which notice was given on 5 March 2007, be refused. 26 The appellant sought her costs of the respondent's unsuccessful Notice of Motion. In the normal run of cases I would order that costs follow the event, but the situation is somewhat different where a litigant represents herself. As I said in Neeson v The Chief Executive Officer of Centrelink [2006] FCA 1107 at [24], the appellant is not entitled to her costs to the extent that they are referable to her own time, including the amount of any income lost as a result of attending to the prosecution of this proceeding. She is, however, entitled to her disbursements, and I can think of no reason why I should not make an order reflecting that entitlement. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.