Passehl v Amos [2002] FCA 118 (6 February 2002)

Last Updated: 13 March 2002

FEDERAL COURT OF AUSTRALIA

Passehl v Amos [2002] FCA 118

RICHARD PASSEHL v BRODERICK AMOS

S.139 of 2001

MANSFIELD J

6 FEBRUARY 2002

ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S.139 OF 2001

BETWEEN:	RICHARD PASSEHL APPLICANT
AND:	BRODERICK AMOS RESPONDENT
JUDGE:	MANSFIELD J
DATE OF ORDER:	6 FEBRUARY 2002
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

The appeal is dismissed for want of prosecution.

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

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S.139 OF 2001

BETWEEN:	RICHARD PASSEHL APPLICANT
AND:	BRODERICK AMOS RESPONDENT

JUDGE:	MANSFIELD J
DATE:	6 FEBRUARY 2002
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1 On 23 August 2001, Federal Magistrate Raphael made a sequestration order against the estate of Richard Passehl. Mr Passehl, on 24 April 2001, instituted an appeal from that decision. At the direction of the Chief Justice made under s 25(1A) of the Federal Court of Australia Act 1976 (Cth), this matter is to be heard by a single judge. It is presently listed for hearing on 27 February 2002. In the notice of appeal which was lodged, Mr Passehl gave his address for service as lot 14, Port Wakefield Road, Burton, SA 5110. He also provided a telephone contact number.

2 The respondent to the appeal now seeks an order under O 52 r 38 of the Federal Court Rules that the appeal be dismissed for want of prosecution. That is an appropriate procedure to adopt in the light of the grounds of that application, largely concerning the failure by Mr Passehl to comply with the Rules and the Practice Note of the Court concerning the preparation of appeals for hearing: see Moore v Tooheys Ltd (1981) 56 FLR 345 at 348 per Bowen CJ, Northrop and Morling JJ.

3 Order 52 r 38 provides:

(1) "Where an appellant has not done any act required to be done by or under these Rules, or otherwise has not prosecuted his appeal with due diligence, the Court may:

(a) order that the appeal shall be dismissed for want of prosecution;

(b) fix a time peremptorily for the doing of the act and at the same time order that upon non-compliance the appeal shall stand dismissed for want of prosecution, or subsequently and in the event of non-compliance, order that it be so dismissed; or

(c) make any other order as may seem just.

(2) A respondent may move on notice for an order under subrule (1), and the Court, after notice to the appellant has been given by the Registrar, may make orders in accordance with subrule (1) of its own motion.

(3) An order under paragraph (1)(b) may be varied at any time before the appeal stands dismissed for want of prosecution, and in special circumstances may be varied or revoked after that time."

4 On the material before me, although the notice of appeal was filed on 24 August 2001, it was not served upon the respondent in accordance with O 52 r 15 and has still not been served. Nor has Mr Passehl filed or served an index to the appeal papers as required in accordance with O 52 r 26. He did not appear before the Registrar for the settling of the index to the appeal papers on 9 October 2001, although notice of that appointment was given to him at his address for service. He had not by that date filed and served a draft index to the appeal papers. He has not prepared appeal books as required by O 52 r 28. He did not appear at the Full Court callover on 31 October 2001 as required by Practice Note 1, although again notified of that appointment by a letter sent to him at his address for service. He has filed no outline of submissions nor any list of authorities, again as required by Practice Note 1.

5 I am mindful that the power to dismiss appeals for want of prosecution should not be lightly exercised. See the remarks of the Full Court, (Bowen CJ and Fisher Lockhart JJ) in van Reesema v Giameous (1979) 27 ALR 525 at 530 (van Reesema). However, there has now been a significant delay since the appeal was instituted. In that time Mr Passehl has done nothing at all to prosecute the appeal. He has failed to comply with the Rules in the respects indicated above or to comply with the procedural requirements of the Court for the preparation of the appeals. No reason for that delictual conduct has been proffered.

6 Moreover, it is in the public interest that the status of the appeal be resolved. In van Reesema at 531 their Honours said:

"Not only is the respondent prejudiced by the fact of the failure of the appellant to prosecute his appeal without delay; but, as the order appealed from is an order sequestrating the appellant's estate, it does not operate merely inter partes; it affects the property of the appellant and the rights of his other creditors."

7 Their Honours added a further consideration applicable in the present circumstances, namely that public policy demands that the business of the Court should be conducted with expedition, and that its Rules and Orders should be complied with.

8 Apart from those matters, which I think of themselves would justify the order sought, I have come to the view that Mr Passehl really has no intention of prosecuting his appeal. He has made no contact with the Court since the appeal was lodged. He has not changed his address for service, although notices sent to him at that address have been returned unclaimed. He has indicated no interest in the ongoing progress of the appeal.

9 Finally, so far as practicable on the limited information available, I have had regard to the prospects of his success on the appeal. The notice of appeal asserts that the sequestration order was made in Mr Passehl's absence, as he arrived late for the hearing of the application for that order. That notice of appeal and the supporting statement also indicate that the act of bankruptcy which was the basis of the sequestration order, was a failure to comply with a Bankruptcy Notice served on him, which was in turn based upon a judgment in favour of the respondent against him. Mr Passehl asserts that, despite the affidavit of service of the Bankruptcy Notice, that document was not in fact served upon him. No affidavit providing any detailed support for that assertion has been filed by Mr Passehl or on his behalf. Moreover, he does not claim in his statement that he is not indebted to the respondent. No basis is shown, on the material available, to assess him as having any real prospects of setting aside the sequestration order on the appeal. Although he asserts that he is "trying to have this entire matter looked at as I have not been given my opportunity to defend or settle the matters", his conduct with respect to this appeal does not indicate a genuine desire to have the sequestration order set aside.

10 I put on record the efforts of officers of the Court to contact Mr Passehl. Apart from notices to his address for service, an officer of the Court telephoned Mr Passehl in November 2001 at the telephone number contained in the notice of appeal, but ascertained that that service had been disconnected. Inquiries made of the trustee of his estate suggested another possible address in South Australia and a possible telephone contact in the Northern Territory. Attempts to correspond with Mr Passehl at that given address have also been unsuccessful and attempts to communicate with him at that telephone number have also been unsuccessful.

11 For those reasons, this is one matter which, in my view, it is appropriate to dismiss the appeal for want of prosecution under O 52 r 38. I so order. I order that the appellant pay to the respondent costs of the appeal to be taxed.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate:

Dated: 21 February 2002

Counsel for the Applicant:	No appearance
Counsel for the Respondent:	Mr W Botten
Solicitor for the Respondent:	WG Botten & Associates
Date of Hearing:	6 February 2002
Date of Judgment:	6 February 2002