FEDERAL COURT OF AUSTRALIA Bourke v Westpac Banking Corporation [2012] FCA 528 Citation: Bourke v Westpac Banking Corporation [2012] FCA 528 Appeal from: Westpac Banking Corporation v Bourke [2011] FMCA 1032 Parties: MICHAEL VINCENT BOURKE v WESTPAC BANKING CORPORATION File number: NSD 21 of 2012 Judge: MARSHALL J Date of judgment: 21 May 2012 Catchwords: BANKRUPTCY– application for adjournment – appeal dismissed pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) – want of appearance by appellant – material insufficient to justify adjournment Legislation: Federal Court of Australia Act 1976 s 25(2B)(bb)(ii) Cases cited: Westpac Banking Corporation v Bourke [2011] FMCA 1032 Date of hearing: 21 May 2012 Date of last submissions: 21 May 2012 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 10 Counsel for the Appellant: The Appellant did not appear Counsel for the Respondent: Mr B Koch Solicitor for the Respondent: Henry Davis York IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 21 of 2012 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: MICHAEL VINCENT BOURKE Appellant AND: WESTPAC BANKING CORPORATION Respondent JUDGE: MARSHALL J DATE OF ORDER: 21 MAY 2012 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. Pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth), the appeal is dismissed. 2. Costs of the appeal are to be met by Mr Bourke's bankrupt estate. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 21 of 2012 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: MICHAEL VINCENT BOURKE Appellant AND: WESTPAC BANKING CORPORATION Respondent JUDGE: MARSHALL J DATE: 21 MAY 2012 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The appellant appeals from a judgment of the Federal Magistrates' Court ("FMC") published on 21 December 2011. 2 In that judgment, the Federal Magistrate sequestered the estate of the appellant, Mr Bourke, and appointed a trustee in bankruptcy. 3 On the appeal being called on for hearing this morning, the appellant did not appear. Late last week, Mr Bourke foreshadowed an application for an adjournment on medical grounds. He was informed by the Court that he would need to attend the hearing to submit his reasons why any such adjournment should be granted. 4 By the conclusion of business hours on the last business day before the appeal, Mr Bourke led the Court and the respondent to believe that he would appear to prosecute his appeal. 5 Approximately one hour before the appeal being called on for hearing, Mr Bourke contacted the Court advising that he wished to seek an adjournment based on medical grounds. Mr Bourke supplied a medical certificate from a medical practitioner which stated that he is "suffering from personal illness and is unfit for functioning at optimum capacity; he requires medication at present which may further compromise his effectiveness from 17 May 2012 until 25 May 2012 inclusive". 6 Mr Bourke was informed that the Court required an affidavit from the medical practitioner. Instead, he faxed an affidavit of his own, annexing the abovementioned medical certificate. 7 Counsel for the respondent submitted that the Court should act to dismiss the appeal on the ground of Mr Bourke's failure to appear. The respondent submitted, and I agree, that costs incurred as the result of any adjournment would not be likely to be recovered by the respondent. 8 Given that Mr Bourke expressed his intention late on the previous business day to pursue his appeal, the respondent was right to expect that it would have to advance its case on the appeal and expend costs in preparing to do so. It is extremely inconvenient for the Court and for the respondent for Mr Bourke to apply to have the matter adjourned on virtually no notice. 9 In any event, I was not satisfied, based on the scant material before me, of the Mr Bourke's inability to present his appeal. This is especially so, when as of late last Friday, he asserted that he was so prepared. The doctor's certificate does not explain in any detail why Mr Bourke would not at least be able to attend court to apply in person for an adjournment or to prosecute his appeal. 10 It was for the above reasons that I made the order I did yesterday under s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth). I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate: Dated: 22 May 2012