Conde v Hunter [2009] FCA 1016

FEDERAL COURT OF AUSTRALIA

Conde v Hunter [2009] FCA 1016

PRACTICE AND PROCEDURE – application to strike out notice of appeal from decision of Federal Magistrate for abuse of process – bankruptcy notice issued in respect of unpaid costs order made by District Court Judge at interlocutory hearing – application by respondent to set aside bankruptcy notice dismissed by Federal Magistrate – court's jurisdiction to strike out a notice of appeal under s 25(2B)(aa) of the Federal Court of Australia Act 1976 (Cth) – relevance of s 31A of the Federal Court of Australia Act 1976 (Cth) – whether costs order of District Court a "final order" for the purposes of s 40(1)(g) of the Bankruptcy Act 1966 (Cth) – whether Federal Magistrate failed to take into account issues, affidavits or relevant legislation – whether failure by the applicant's solicitor to comply with r 2.05 and r 2.06 of the Federal Court (Bankruptcy) Rules 2005 and whether relevant – application of s 41 of the Bankruptcy Act 1966 (Cth) – and exercise of judicial discretion – allegation of bias on part of Federal Magistrate – whether notice of appeal raises arguable issues – whether indemnity costs warranted Held: notice of motion to strike out the notice of appeal for abuse of process successful – notice of appeal struck out – costs order made at interlocutory stage by District Court was a "final order" under s 40(1)(g) of the Bankruptcy Act 1966 (Cth) – no errors in the Federal Magistrate's decision – the respondent to pay the applicant's costs of the notice of motion on a party-party basis

Bankruptcy Act 1966 (Cth) s 40(1)(g), s 41(1)(a)(i), (3), (3)(a), (6A)(a), (b) and (6C) Federal Court of Australia Act 1976 (Cth) s 25(2B)(aa), s 31A Supreme Court of Judicature (Consolidation) Act 1925 s 31 Federal Court (Bankruptcy) Rules 2005 r 2.05(1), r 2.06(1), (2)(a)(b)(c)(d)