Re Mary Latona v Wattawa Constructions Pty Limited [1984] FCA 35 (1 March 1984)

FEDERAL COURT OF AUSTRALIA

Re: MARY LATONA
And: WATTAWA CONSTRUCTIONS PTY. LIMITED
No. G78 of 1983
Practice

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Bowen C.J.
Fitzgerald J.
Beaumont J.

CATCHWORDS

Practice - Appeal from sequestration order - Dismissal for want of prosecution - Relevant consideration.

Federal Court Rules Order 52 rule 38

HEARING

SYDNEY
1:3:1984

ORDER

1. The appeal be dismissed for want of prosecution.

2. Mary Latona pay to Wattawa Constructions Pty. Limited its costs of this motion to dismiss and of the appeal.

DECISION

This is a motion brought pursuant to Order 52 rule 38 of the Federal Court Rules to dismiss for want of prosecution an appeal brought by Mary Latona, the appellant, against Wattawa Constructions Pty. Limited, the respondent. The appeal is against a sequestration order made on 30 March 1983 by Morling J. The Notice of Appeal following the making of the sequestration order was lodged on 20 April 1983 but no application was made for a stay of execution.

The appeal since then has had no forward movement and the explanation for this is said to be the lack of a grant of legal aid. There have been a number of times when it has been listed for Callover in this Court and on three of those occasions a warning has been given on behalf of Wattawa Constructions Pty. Limited that it would have to move to dismiss for want of prosecution unless steps were taken to bring the appeal on. In spite of the lapse of time and these warnings no action has been taken to bring the appeal on and, as has been said, the explanation given is the lack of legal aid.

The administration of the estate has been proceeding and there is evidence that the trustee of the estate has stated:

"Most of the assets of Mary Latona's estate have been sold apart from a vacant block of land and the net assets of the estate will only be sufficient to pay the taxed costs of the petitioning creditor and the costs of the trustee. It is unlikely that any of the unsecured creditors will receive any payment whatsoever."

Some submissions have been made from the Bar Table which suggest that the value of the vacant land perhaps may be more than the trustee has anticipated in that statement, but it is clear that even so the success of the appeal if the sequestration order is thereby set aside would raise considerable difficulties in relation to the administration of the estate.

Finally, it is our view that no ground has been advanced which indicates any prospect of success in the appeal, having regard to the material which was before Morling J. when he made the order and having regard to any other material which is presently available. One of the principal contentions on behalf of Mrs. Latona is that it is desired to have experts inspect two documents which were attached to an affidavit which had been filed on behalf of Wattawa Constructions Pty. Limited relied on before Morling J. It is suggested that inspection would reveal the fact that there was a forgery committed in relation to these documents and it is foreshadowed that it may appear the judgment and sequestration order were obtained, in effect, as the result of fraud. There is no evidence to that effect presently available.

Those issues were not raised in any proper form before Morling J. and were not ruled on by him. It does not seem appropriate to endeavour to determine them on an appeal from his decision. This does not mean that some other application might not be made by Mrs. Latona should she have sufficient evidence to substantiate such a claim as one of fraud and should she be so advised.

Returning to the motion to dismiss the appeal, it is our view that the case for dismissal has been made out and we propose that the appeal be dismissed for want of prosecution. We also propose that Mrs. Latona should pay Wattawa Constructions the costs of this motion to dismiss and of the appeal. However, we would hear submissions on the matter of costs. It will be noticed that it is a personal order. It is not a liability that we can order be paid out of the bankrupt estate at this stage, because it is post-bankruptcy.

If there is nothing to be said on that, it only remains to refer to an application which was made from the Bar Table for an order directing access to be given to an expert or experts for Mrs. Latona to inspect the two documents which are alleged to be forgeries and which are annexed to an affidavit in the proceedings. Under our Rules, documents cannot be handed over by the Registry without a direction given by the Court or a judge of the Court. Inspection is not opposed by the representative of Wattawa Constructions Pty. Limited, but the Registry itself of this Court is also involved. It would seem that there ought to be some conditions laid down. We suggest that the parties see Beaumont J. in Chambers after we adjourn. He will finalise the terms of the directions.