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Federal Court of Australia |
Last Updated: 4 November 2004
FEDERAL COURT OF AUSTRALIA
Sanders v Knudsen [2004] FCA 1429
BASIL
CHARLES SANDERS v PETER STANLEY KNUDSEN & JILL ELIZABETH YATES TRADING AS
THE HARGREAVES PRACTICE & ORS
N1705 OF
2003
EMMETT J
6 SEPTEMBER
2004
SYDNEY
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BASIL CHARLES SANDERS
APPELLANT |
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AND:
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PETER STANLEY KNUDSEN AND JILL ELIZABETH YATES TRADING AS THE HARGREAVES
PRACTICE
FIRST RESPONDENT NICHOLAS CONFOS SECOND RESPONDENT OFFICIAL TRUSTEE IN BANKRUPTCY THIRD RESPONDENT |
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DATE OF ORDER:
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WHERE MADE:
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THE COURT:
1. ORDERS that Order 1 of the orders of the Court of 6 August 2004 be rescinded.
2. ORDERS that a supplementary appeal book comprising the transcript of the proceeding before Bennett J be filed and served by 20 September 2004.
3. DIRECTS the appellant to file and serve no later than 20 September 2004 any affidavits on which he wishes to rely in support of any application to adduce additional evidence before the Full Court, such affidavits to include not only additional evidence, but all reasons explaining why the evidence was not adduced before Bennett J.
4. DIRECTS the appellant to file and serve no later than 5 October 2004, submissions in support of the appeal and the application to adduce further evidence.
5. GRANTS the appellant leave to file an amended notice of appeal incorporating 11A, 22 and 23 set out in the draft notice of motion initialled by Emmett J and dated with today’s date, such further amended notice of appeal to be filed and served no later than 20 September 2004.
6. ORDERS the appellant to pay the costs of today.
7. ORDERS that the Notice of Motion filed on 6 July 2004 be otherwise dismissed.
Note: Settlement
and entry of orders is dealt with in Order 36 of the Federal Court
Rules.
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AND:
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JUDGE:
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DATE:
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PLACE:
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REASONS FOR JUDGMENT
1 On 9 October 2003, Bennett J made a sequestration order in respect of the estate of Basil Charles Sanders. The order was made on the petition of Peter Stanley Knudsen and Jill Elizabeth Yates trading as the Hargreaves Practice. The petitioning creditors are solicitors.
2 On 30 October 2003 Mr Sanders filed a notice of appeal and, on 21 November 2003, he filed a notice of motion for a stay pending the hearing of the appeal. An appointment to settle the index for the appeal books was fixed for 25 November 2003. The parties attended on the Registrar on that day but no draft index had been prepared. A second appointment was made for 5 December 2003, but again on that day no draft index had been prepared.
3 On 10 December 2003, the appellant’s notice of motion for a stay was heard. Mr Sanders was represented by counsel. Hill J granted Mr Sanders leave to withdraw the motion and ordered costs in favour of the petitioning creditors.
4 On 8 January 2004, the petitioning creditors wrote to Mr Sanders saying that unless a draft index was filed and served by 16 January, they would file a motion for summary dismissal of the appeal for want of prosecution. On 21 January 2004, the petitioning creditors carried out that threat. The motion for summary dismissal was fixed for 11 February 2004. However, on 9 February 2004, Levitt Robinson Solicitors accepted instructions to act for Mr Sanders. On 11 February 2004, the petitioning creditors were served with a notice of appearance indicating that Levitt Robinson were now appearing. In addition, a notice of motion seeking leave to file an amended notice of appeal was filed.
5 On 11 February 2004, Sackville J ordered Mr Sanders to file and serve an amended notice of appeal within 14 days, together with a draft appeal index and ordered that in default the appeal be dismissed for want of prosecution. Around 25 February 2004, an amended notice of appeal and a draft appeal index was filed. The appeal was listed for hearing on 4 May 2004. On 16 March 2004 the appeal index was settled.
6 However, on 29 April 2004 Mr Sanders filed a notice of motion seeking orders vacating the hearing. The basis upon which the Court was asked to vacate the hearing was that Mr Sanders may not be fit to give instructions. On 4 May 2004, the date fixed for the hearing, the Full Court ordered that the hearing be vacated and that Mr Sanders have leave to restore the matter to the list subject to filing of appeal books.
7 On 6 July 2004, the petitioning creditors filed another notice of motion to strike out the appeal for want of prosecution. At the Full Court Callover on 28 July 2004, Sackville J noted that the motion was returnable on 3 August 2004 and stood the matter over to the next callover. On 29 July 2004, Levitt Robinson filed a notice of ceasing to act. The motion filed on 6 July 2004 came before me as Duty Judge on 3 August 2004.
8 After hearing some argument on that day, in the course of which Mr Sanders indicated that he wished to abandon the appeal altogether, I stood the matter over for further hearing on 6 August. On that day I ordered that the appeal be dismissed for want of prosecution and that Mr Sanders pay the respondents’ costs of the appeal. However, because I had a concern that Mr Sanders may not understand fully the procedures involved since he was not represented, I gave him one last opportunity to file an appeal book. I therefore ordered that the first two orders that I made be stayed up to and including today, and that the motion be stood over for further hearing today.
9 It appears that an appeal book was filed, or at least served on 3 September. It is deficient in some respect in that although the index refers to transcript, there was no transcript in the appeal book. The index bound into the appeal book has no page references. Nevertheless, I am satisfied that Mr Sanders has, in substance, complied with the requirement to prepare an appeal book. A supplementary copy of the transcript can no doubt be made available if it is to be required on the hearing of the appeal.
10 Mr Sanders also indicates that there are two further matters that he wishes to take up. The first is to rely on further grounds of appeal outlined in a draft notice of motion which he tendered to the Court today. The second matter is that Mr Sanders foreshadowed an intention to seek leave to rely on additional evidence; to do so he must satisfy O 52 r 36. He has done nothing towards that so far.
11 The evidence that Mr Sanders has foreshadowed is two-fold. First, he wishes to adduce evidence as to the terms of indebtedness that he acknowledges he has to third parties. Second, he wishes to adduce evidence as to value of real property owned by him and which he says could be borrowed against for the purposes of discharging all of his creditors.
12 The only matter before me is the question of whether the order for summary dismissal for want of prosecution should stand. With considerable reluctance, I consider that I ought not to deprive Mr Sanders of his appeal by summary dismissal for want of prosecution. However, it is clear that there is likely to be further delay. I consider that it is appropriate to give directions now for the further preparation of the appeal so that it can be brought on for hearing as soon as practicable. Whether those directions are complied with will be a matter for Mr Sanders. If they are not, it may be a matter for the petitioning creditors, the respondents to the appeal, to move again for summary dismissal for want of prosecution of the appeal.
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I certify that the preceding twelve (12) numbered paragraphs are a true
copy of the Reasons for Judgment herein of the Honourable
Justice Emmett.
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Associate:
Dated: 3 November 2004
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The Applicant appeared in person.
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Counsel for the Respondent:
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Mr A Diethelm
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Solicitor for the Respondent:
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The Hargreaves Practice
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Date of Hearing:
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6 September 2004
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Date of Judgment:
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6 September 2004
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