Isaac Shields & Anor v Official Receiver in Bankruptcy [1997] FCA 529 (19 May 1997)

CATCHWORDS

PRACTICE & PROCEDURE - Appeal - application for adjournment of appeal - whether appeal ought be adjourned on ground that appellant allegedly unable to obtain a copy of the transcript of the trial - whether appeal ought to be adjourned on ground that appellant allegedly not given proper notice of hearing before trial judge.

ISAAC SHIELDS & ANOR v OFFICIAL RECEIVER IN BANKRUPTCY

No NG 616 of 1996

Davies, Sackville & Lehane JJ

19 May 1997

Sydney

IN THE FEDERAL COURT OF AUSTRALIA )

)

BANKRUPTCY DISTRICT OF THE STATE OF )

) No NG 616 of 1996

NEW SOUTH WALES )

)

GENERAL DIVISION )

)

On appeal from a single judge of the

Federal Court of Australia

BETWEEN: ISAAC SHIELDS & ANOR

Applicant

AND: OFFICIAL RECEIVER IN BANKRUPTCY

Respondent

Coram: Davies, Sackville & Lehane JJ.

Date: 19 May 1997

Place: Sydney

MINUTES OF ORDER

THE COURT ORDERS THAT:

The application be dismissed with costs.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )

)

BANKRUPTCY DISTRICT OF THE STATE OF )

) No NG 616 of 1996

NEW SOUTH WALES )

)

GENERAL DIVISION )

)

On appeal from a single judge of the

Federal Court of Australia

BETWEEN: ISAAC SHIELDS & ANOR

Applicant

AND: OFFICIAL RECEIVER IN BANKRUPTCY

Respondent

Coram: Davies, Sackville & Lehane JJ.

Date: 19 May 1997

Place: Sydney

REASONS FOR JUDGMENT

THE COURT: Mr Shields has applied to the Court for an order adjourning the hearing of this appeal. The present position is that no appeal book has been prepared and, accordingly, there are no documents before the Court, although the Court has obtained from its own resources copies of the judgment below and of a document headed "Supplementary Notice of Appeal".

The first ground on which Mr Shields has sought an adjournment is that he has been unable to obtain a copy of the transcript below. Such an allegation, if it were to be genuinely pursued, ought to be supported by an affidavit setting out the facts relied upon, including inability to fund the obtaining of a transcript and requests made otherwise for a copy of the transcript. There is no affidavit before the Court and we merely have Mr Shields' word that he himself was unable to fund the cost of the transcript.

Perhaps of greater significance is the point that the material which was before Whitlam J, the trial judge, was all on affidavits which are available to Mr Shields. It is open to Mr Shields, even without a transcript, to now indicate to the Court that the material before Whitlam J did not justify the findings which his Honour made.

It has been said by Mr Shields that there may have been other relevant material put before Whitlam J. There is in the supplementary notice of appeal an allegation of bias. However, at the present time there is nothing before the Court to show the slightest indication that there was any bias or that the judgment of his Honour was not fully supported by the affidavit materials.

The Court will not grant an adjournment merely to permit a fishing expedition to occur which, in Mr Shields' view, might throw up a suggestion that something went wrong with the trial. At the present time, the position is that there are affidavits before the Court which Whitlam J relied upon and there is Whitlam J's judgment. Nothing has been put to the Court which suggests that his Honour's findings and judgment were not well based upon the material before him.

Accordingly, the Court is of the view that the absence of transcript is not a sufficient ground for adjournment.

We should say moreover that, as the contents of the appeal book were settled by a registrar back in October 1996, this is a matter which Mr Shields has had an opportunity to raise over the intervening months and it ought to have been raised in the proper way and not before the Full Court at the hearing of the appeal.

The second basis on which an adjournment has been sought is the submission that Mr Shields was not given proper notice of the hearing before the trial Judge. The trial Judge recorded in his judgment that, on 22 March 1996, Mr Shields sent a fax to the Official Trustee's solicitors baldly stating that the hearing date was "unsatisfactory for the respondents". On 28 March 1996, the District Registrar of the Court had, however, written to all the respondents advising of the hearing date commencing on 8 July 1996. That action was taken after Mr Shields' fax. Mr Shields subsequently appeared at the hearing of two interlocutory applications, one before Hill J and one before Whitlam J.

The judgment also recorded that, on 7 July 1996, the Sunday evening before the hearing date, a fax had been received by the Registry from Mr Shields who suggested, amongst other things, that the solicitors for the Official Trustee had failed to inform him of the hearing date. The fact that a notice was sent on 28 March 1996 to all the appellants setting out the hearing date is of itself indicative that formal notice was given to all the appellants. In the course of this hearing, Mr Shields conceded that the letter from the Registry of 28 March advising of the hearing went to a correct address and that he would have received that notice. The fact that on 7 July Mr Shields sent a fax in which he discussed the hearing date confirms that he was in fact actually aware of the date. Indeed, it makes that perfectly plain.

The fax from Mr Shields of 7 July 1996 includes the following:-

"To run this hearing on 8 and 9 July 1996 would be a pure waste of the court's time, and as you do know that I will be appealing against any decision against me or any of the Shields family."

The fax did not in fact say that the appellants would not be able to attend. The trial Judge concluded that the appellants had made a conscious decision not to attend the hearing. He accordingly proceeded and, in due course, gave a reserved judgment. No ground has been raised in the supplementary notice of appeal which was filed on 21 August 1996 with respect to some failure of natural justice being a failure to give proper notice to the appellants of the hearing on 8 July.

Had there been a failure to give due notice to the appellants of the hearing, or had they been unavoidably detained or unable to attend the hearing, then of course it would have been open to Whitlam J subsequently to vacate the orders he had made and to re-hear the matter. It is a general principle of the law which is reflected in the Rules of the Court that parties before the Court should be given the opportunity of being heard, and in cases where that has not happened and where for unavoidable reasons parties have not attended at a hearing, then the Rules and the principle of law allow for the order of the Court to be set aside and for the matter to be re-heard. That is a point which could have been raised by the appellants either by an application made to the trial judge himself, being an application to vacate the orders, or by the notice of appeal.

No such point was raised in the notice of appeal and there is indeed no present material before the Court dealing with these facts other than what Mr Shields has had to say orally. We think therefore that this point is not a sufficient reason for adjourning the hearing of the appeal. If the point is right, and proper notice of the trial below was not given to the appellants, then of course they are still entitled to apply to the Court to have the orders of the Trial Judge vacated.

For those reasons the application for an adjournment will be dismissed.

There was no appearance at any time for the second, third, fourth and fifth appellants. The first appellant, Isaac John MacKay Shields, has now left the Court. Accordingly, the appeal must be dismissed with costs.

I certify that this and the preceding 4 pages

are a true copy of the reasons for judgment of

the Court.

Associate:

Date: 19 May 1997

Counsel for the applicant: Applicant appeared for himself

Counsel for the respondent: J. Johnson

Solicitor for the respondent: Sally Nash & Co.

Date of hearing: 19 May 1997

Date of judgment: 19 May 1997