Bagshaw v Jefferson & Stevenson [2002] FCAFC 27; [2002] FCA 147 (22 February 2002)

Last Updated: 6 May 2002

Bagshaw v Jefferson & Stevenson [2002] FCAFC 27

Bagshaw v Jefferson & Stevenson [2002] FCA 147

NOTE: CHANGES TO THE MEDIUM NEUTRAL CITATION (MNC)

The Federal Court adopted a new medium neutral citation (FCAFC) for Full Court judgments effective from 1 January 2002. Single Judge judgments will not be affected and will retain the FCA medium neutral citation.

The transitional arrangements are as follows:

* All Full Court judgments delivered prior to 1 January 2002 will retain the FCA medium neutral citation.

* All Full Court judgments delivered between 1 January 2002 to 30 April 2002 have been assigned parallel medium neutral citations in both the FCA and FCAFC series.

* All Full Court judgments delivered from 1 May 2002 will contain the FCAFC medium neutral citation only.

FEDERAL COURT OF AUSTRALIA

Bagshaw v Jefferson & Stevenson [2002] FCA 147

LEITH GORDON BAGSHAW v JEFFERSON & STEVENSON AS TRUSTEES OF THE BANKRUPT ESTATE LEITH GORDON BAGSHAW, JOHN JOSEPH SCOTT, WESTPAC BANKING CORPORATION

QG7045 of 1997

BEAUMONT, FINN & SUNDBERG JJ

BRISBANE

22 FEBRUARY 2002

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG7045 OF 1997

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	LEITH GORDON BAGSHAW APPLICANT
AND:	JEFFERSON & STEVENSON AS TRUSTEES OF THE BANKRUPT ESTATE LEITH GORDON BAGSHAW FIRST RESPONDENT JOHN JOSEPH SCOTT SECOND RESPONDENT WESTPAC BANKING CORPORATION THIRD RESPONDENT
JUDGES:	BEAUMONT, FINN & SUNDBERG JJ
DATE OF ORDER:	22 FEBRUARY 2002
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

The application for leave to appeal 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
QUEENSLAND DISTRICT REGISTRY	QG7045 OF 1997

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	LEITH GORDON BAGSHAW APPLICANT
AND:	JEFFERSON & STEVENSON AS TRUSTEES OF THE BANKRUPT ESTATE LEITH GORDON BAGSHAW FIRST RESPONDENT JOHN JOSEPH SCOTT SECOND RESPONDENT WESTPAC BANKING CORPORATION THIRD RESPONDENT

JUDGES:	BEAUMONT, FINN & SUNDBERG JJ
DATE:	22 FEBRUARY 2002
PLACE:	BRISBANE

REASONS FOR JUDGMENT

THE COURT:

1 This is an application for leave to appeal against orders made by a judge of this court which, insofar as presently relevant, dismissed a notice of motion to transfer this proceeding to the New South Wales Registry of the Court. That order is clearly interlocutory in character such that under s 24(1A) of the Federal Court of Australia Act 1976 (Cth) leave to appeal to this Court is required. The order furthermore is merely an order until further order as the primary judge made plain to the applicant when dismissing the notice of motion. It is equally an order that can properly be characterised as one concerned with matters of practice and procedure. As is well known appellate courts are required to exercise particular caution in reviewing decisions relating to practice and procedure: see Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170 at 177.

2 The considerations ordinarily applied in determining whether or not to grant leave are well accepted. They are (i) whether in all the circumstances the decision in question is attended by sufficient doubt as to warrant its being reconsidered by the Full Court; and (ii) whether substantial injustice would result if leave were refused supposing the decision to be wrong: Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397.

3 By way of background to this application it should be noted that the proceeding in which it was filed was itself filed in the Brisbane registry of this Court in January of 1997. That application sought amongst other things an order removing the first respondents as trustees of the estate of the applicant under s 179(1)(b) of the Bankruptcy Act 1966. The progress of that application was marked on the applicant's part by inaction and non-compliance with directions such that on 14 March 2000 the Acting District Registrar of the Court wrote to Mr Bagshaw indicating that, in view of his prolonged inaction in these proceedings, the court's file had been closed.

4 On 18 June 2001 the notice of motion seeking a transfer of proceedings was filed. The designated hearing date was on 13 August 2001. On 9 August the applicant filed an affidavit in support (inter alia) of the transfer motion. The first respondents (who are the only parties with any remaining real interest in this proceeding) appear not to have received notice of the motion until 8 August 2001. When the matter came on on 13 August, it was adjourned for the first time. On 24 August the motion was again adjourned until 28 September 2001 when it was set down for hearing. The first respondents filed their affidavit in opposition to the motion on 23 August 2001. When the matter came on for hearing before the primary judge, the applicant appeared for himself. The reason for this was, apparently, that his legal adviser who resided in South Australia was unable to act for him on that day. He sought in consequence to have the proceedings on the day transformed into a directions hearing. The primary judge indicated that on the last two occasions upon which the adjournments had occurred it was made plain that the application would proceed on 28 September. His Honour would not countenance an adjournment. Mr Bagshaw contended he was not in a position to proceed. His Honour indicated that in those circumstances, given that the matter had been set down for hearing on the day and that he was unprepared to adjourn it, if Mr Bagshaw did not prosecute his motion it would be dismissed. He indicated to Mr Bagshaw that he could on a subsequent occasion make a like application for transfer if he was so minded.

5 Turning now directly to the question of leave. Even if his Honour's decision was wrong, and we do not think it was, there would be no substantial injustice if the application was refused. It is open to Mr Bagshaw to make further application for a transfer. For that reason alone we would refuse the application. Importantly, though, this is a matter of practice and procedure. The proceeding has been a difficult one for the primary judge in terms of its case management. It was open to his Honour with his knowledge of the matter to deal with it in the peremptory fashion that he did. We are not satisfied that his Honour committed any error in exercising his discretion in the manner in which he did. The application for leave to appeal will be dismissed with costs.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Beaumont, Finn & Sundberg JJ.

Associate:

Dated: 22 February 2002

The Applicant appeared in person.
Counsel for the First Respondent:	Mr M Williams
Solicitor for the First Respondent:	Murrays Lawyers
Date of Hearing:	22 February 2002
Date of Judgment:	22 February 2002