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Federal Court of Australia |
Last Updated: 14 December 2004
FEDERAL COURT OF AUSTRALIA
Bailey v Joiner (Trustee) [2004] FCA 1629
BANKRUPTCY – no appearance by applicant –
no application for adjournment – no attempt to comply with requirements of
service
– no prospects of success
Federal Court
Rules O 52 r 15(1) and
(2)
IDA
ELIZABETH BAILEY v MATTHEW LESLIE JOINER AND GERALD THOMAS COLLINS as Trustees
of the Estate of Ida Elizabeth Bailey
No QUD 237 of 2004
SPENDER J
BRISBANE
9 DECEMBER 2004
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IDA ELIZABETH BAILEY
APPLICANT |
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AND:
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MATHEW LESLIE JOINER AND GERALD THOMAS COLLINS as Trustees of the Estate
of Ida Elizabeth Bailey
RESPONDENT |
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DATE OF ORDER:
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WHERE MADE:
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THE COURT ORDERS THAT:
The
notice of motion filed 18 November 2004 is
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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REASONS FOR JUDGMENT
1 This is the return date and time for the hearing of a notice of motion which was filed on 18 November 2004 by Ida Elizabeth Bailey. The respondent to that notice of motion is described as Matthew Leslie Joiner and Gerald Thomas Collins as Trustees of the Estate of Ida Elizabeth Bailey. In addition to the notice of motion filed on 18 November 2004, a document styled notice of appeal was filed by Ms Bailey on that date. The first four paragraphs of that document read as follows:
‘1][A] The Appellant appeals from the whole of the Judgment by Deputy Registrar Heather Baldwin given on 21 July 2004 at the Brisbane Registry of The Federal Court of Australia in matter Q96/04.
[B] The Appellant appeals from the whole of the Judgment by Justice Kiefel given on the 28 October 2004 at the Brisbane Registry of The Federal Court of Australia in matter Q96/04.
The Appeal is brought by pursuant to leave granted on ...
The Appellant seeks Leave of the Full Court for Jef Morton to assist the Appellant as her "Self Litigants Friend"/McKenzie Friend in this matter.’
2 Under the heading "Grounds", the notice of appeal sets out over some eight pages a number of grounds, many of which are scandalous, including:
‘[M] Justice Kiefel erred by not disqualifying herself from matter Q96/04 due to
[i] Her Honour’s bias and anti-Self Litigant/Litigant-in-Person culture when dealing with a party involved in proceeding who is not linked to The Law Council of Australia.
[ii] Her Honour is not qualified to deal with Self Litigant/Litigants-in-Person and is only qualified to deal in matters that solely involve members of Her Honour's own trade unions, the Bar Association of Queensland and the Law Council of Australia.
[iii] Her Honour failed to disclose her personal interest in the matter, such as her links to the Supreme Court of Queensland Library Committee, Ian Erskine, Counsel for the Applicants and membership to the inappropriate lobby group for the Federal Court Judiciary, The Judicial Conference of Australia.’
3 There are a number of other alleged grounds, some of which are quite irrelevant to any possible error in the judgment of Kiefel J.
4 The notice of motion, under the heading "Orders sought", essentially seeks interlocutory orders of the same kind as set out in the notice of appeal.
5 When the matter was called on this morning there was no appearance by Ms Bailey or by either of the two persons named as respondent.
6 I have made inquiries as a result of documents which were communicated to the Registry yesterday. First, the records reveal that Deputy District Registrar Baldwin on 21 July made only directions for the filing of further material in proceedings Q96 of 2004. On 28 October Kiefel J made a declaration in the following terms:
‘The Deed of Assignment dated 6 October 2003 signed by the first applicant and the respondent is not void and is effective at law.’
Her Honour ordered that the applicants’
costs of and incidental to the application be costs of the administration of the
respondent’s
estate.
7 The first paragraph of her Honour’s reasons includes the following:
‘The respondent [that is, Ms Bailey] did not appear on the hearing of the application, which was filed in June 2004. A notice of motion seeking an adjournment had been foreshadowed by the respondent or someone acting for her on the morning of the hearing. Amongst the body of material lodged with the Court that day by the person assisting the respondent was a medical certificate which, however, was unclear as to whether the respondent was unable to attend a hearing and to understand what was being said at it. Further enquiries made by the applicants’ solicitors did not reveal much more. There was no suggestion of whether the respondent might be able to attend and the matter appeared to require prompt resolution. In these circumstances the matter was not adjourned.’
8 On 7 December at 11.54 a document headed Medical Certificate was forwarded to the Registry. That document is singularly uninformative. It is dated 24 November 2004, has the name Dr Ranjith Senanayake, with his qualifications, Sugarland Shopping Town, Bundaberg 4670.
‘THIS IS TO CERTIFY THAT
Ms Ida Bailey
IS RECEIVING MEDICAL TREATMENT AND FOR THE PERIOD
24.11.04
____________ TO _____________ INCLUSIVE
HE HIS
WILL BE UNFIT TO CONTINUE
SHE HER USUAL OCCUPATION (migrain headache)’
A signature appears over the typed
words, Dr Ranjith Senanayake.
9 Also on 7 December was faxed to the Registry a letter dated 7 December addressed to the Registrar, Federal Court of Australia, 119 North Quay, which appears to be signed by Ms Bailey. The letter says:
‘I am writing re matter QUD 239/2004.’
I
take that to be a reference to QUD 237/2004.
‘I wish to inform your Honourable Court that due to my current circumstances of ongoing ill health I feel that I am currently not strong enough to prepare my full Court appeal and address my serious health problems at the same time and I feel it would not be appropriate for me to serve the court sealed copies of the notice of motion dated 18th Nov 2004 on the identified Respondents at this time.
I would now like to make the following requests of your Honourable Court.
(1) I would like to have my hearing cancelled as of 9th December 2004 10.15 AM as I am currently ill and not able to find Legal advice.
(2) I would like the court to be aware that I will be re applying at a later date as soon as my health would allow.
(3) I would appreciate any help or advice to point me in the right direction as to obtain Legal advice as I am an aged pensioner. I have contact Legal Aid on several occasions only to be told they will not help. I have also consulted several private Law Firms and due to the fact that Mr Joiner of Howarth Jefferson Stevenson has control of all my assets due to Part X Bankruptcy trustee, no Law firm will help due to lack of finances.
I would like to give a brief explanation of events. On the 1st Sept 2003 I travelled to see Mr James Conomos, solicitor. He insisted that I enter into a Part X agreement when my assets were far greater than my debts $60,000 DEBTS to $380.00 ASSETTS. After Mr Conomos introduced me to MR JOINER he withdrew support and or being asked by me to accompany me to creditors of 6 Oct 2003 he refused and told me that Mr Joiner would take good care of me. The only person Mr Joiner has taken care of is himself and his own financial gain by ... my estate. I wish this had been explained to me before I was coerced into signing into a Part X.
I dared to complain to the appropriate body I.T.S.A. of my concerns. I.T.S.A. discovered that there was a problem with the time frame regarding my deed of assignment. I find now that expense has been incurred against my estate due to inappropriate actions of I.T.S.A. and MR JOINER.
Yours Faithfully
I.E. Bailey.’.
10 On the correspondence file in relation to this present proceeding, by an officer of the Court on behalf of the District Registrar to Ms Ida Elizabeth Bailey at C/- 11 Gavin Street, Bundaberg, Queensland 4670, is a letter dated 24 November 2004. That letter says in part:
‘The motion has been listed for hearing on the date endorsed on the service copies of that document.
The purpose of this letter is to advise you of the directions which have been made in respect of the hearing of the motion. These are listed below. You should note, in particular, direction number 4, which requires you to bring these directions to the attention of the respondent/s to the motion.’
Direction 4 of that letter says:
‘The applicant/s on the motion serve a copy of these directions on the respondent/s to the motion forthwith.’
11 As the letter from Ms Bailey indicates, she has taken it upon herself to consider it "inappropriate", for the reasons which she then gives, to serve the court-stamped documents on the respondents to her motion. There has been no application made for an adjournment, save the sending of the documents on 7 December 2004, to which I have referred.
12 Yesterday, arrangements were made between Deputy District Registrar Reynolds and Ms Bailey for Ms Bailey to appear by telephone. Despite repeated attempts today by the court officer to contact Ms Bailey at that telephone number as had been arranged, the calls rang out. There had been contact at 10.10 am, when Ms Bailey indicated that she had a migraine, and she then terminated that call, and further calls were unanswered.
13 The fact of the matter is that Ms Bailey has not sought to prosecute her notice of motion. There does not appear to be any judgment by Deputy District Registrar Baldwin that is properly able to be the subject of an appeal, and even if there were, it is well and truly out of time. In respect of the judgment of Kiefel J, which was made in the absence of the respondent on that motion, and which also was accompanied by an unclear medical statement, the orders of the Federal Court, and in particular Order 52 rule 15(1) require that:
‘The notice of appeal shall be filed and served –
(a) within 21 days after –
(i) the date when the judgment appealed from was pronounced; (ii) the date when leave to appeal was granted; or
(b) within such further time as is allowed by the Court or a Judge upon application made by motion upon notice filed within the period of 21 days referred to in the last preceding paragraph.’
Order 52 rule
15(2) provides:
‘Notwithstanding anything in the preceding sub-rule, the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal.’
14 The medical certificate is derisory in its content, and does not provide a proper basis on which any adjournment should be granted. There is no application made to adjourn the hearing of her notice of motion, but more importantly, it appears that there has been no attempt to comply with the requirement as to service within the time required by the Rules, or to seek an extension of time in that respect.
15 I have looked at the judgment of Kiefel J, and on any view of the matter there does not appear to be any prospects of a successful appeal from her Honour’s orders. That underpins the decision that I make in respect of the notice of motion, that it be dismissed. The document headed "Notice of Appeal" filed on 18 November 2004 is therefore of no relevance to any proceedings in the Federal Court. I decline to grant the relief sought in the notice of motion. That notice of motion is dismissed.
16 In the circumstance that the respondent to the motion was not served with it, and that Ms Bailey has not appeared to prosecute her notice of motion, it is not appropriate to make any order as to costs.
17 The order of the Court is the notice of motion filed 18 November 2004 is dismissed.
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I certify that the preceding seventeen (17) numbered paragraphs are a true
copy of the Reasons for Judgment herein of the Honourable
Justice Spender
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Associate:
Dated: 13 December 2004
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There was no appearance on behalf of the applicant
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There was no appearance on behalf of the respondent
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Date of Hearing:
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9 December 2004
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Date of Judgment:
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9 December 2004
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