Pavlic v Macquarie Leasing Pty Ltd [2015] FCA 733

FEDERAL COURT OF AUSTRALIA

Pavlic v Macquarie Leasing Pty Ltd [2015] FCA 733 Citation: Pavlic v Macquarie Leasing Pty Ltd [2015] FCA 733

Appeal from: Pavlic v Macquarie Leasing Pty Ltd [2015] FCCA 854

Parties: WILLIAM JOSEPH PAVLIC v MACQUARIE LEASING PTY LTD (ACN 002 674 982), CNH INDUSTRIAL CAPITAL AUSTRALIA PTY LTD (ACN 069 132 396) and AGCO FINANCE PTY LTD (ACN 107 653 878)

File number: NSD 214 of 2015

Judge: FOSTER J

Date of judgment: 17 July 2015

Legislation: Federal Court of Australia Act 1976 (Cth), s 25(2B)(bb) Federal Court Rules 2011, r 5.23(1)(b)(i) and r 36.74(1)(a)

Date of hearing: 17 July 2015

Place: Sydney

Division: GENERAL DIVISION

Category: No Catchwords

Number of paragraphs: 16

Solicitor for the Appellant: Mr D Angelkov appeared by leave

Counsel for the First Respondent: Ms E Glover

Solicitor for the First Respondent: Douros Jackson Lawyers

Solicitor for the Second Respondent: Mr TR Xenos of Bayside Solicitors

Solicitor for the Third Respondent: The Third Respondent submitted save as to costs

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 214 of 2015

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN: WILLIAM JOSEPH PAVLIC

Appellant

AND: MACQUARIE LEASING PTY LTD (ACN 002 674 982)

First Respondent

CNH INDUSTRIAL CAPITAL AUSTRALIA PTY LTD (ACN 069 132 396)

Second Respondent

AGCO FINANCE PTY LTD (ACN 107 653 878)

Third Respondent

JUDGE: FOSTER J DATE OF ORDER: 17 JULY 2015 WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The hearing listed for 24 August 2015 be vacated. 2. Pursuant to s 25(2B)(bb) of the Federal Court of Australia Act 1976 (Cth) and r 5.23(1)(b)(i) and r 36.74(1)(a) of the Federal Court Rules 2011, the appeal be dismissed. 3. There be no orders as to the costs of the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 214 of 2015

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN: WILLIAM JOSEPH PAVLIC

Appellant

AND: MACQUARIE LEASING PTY LTD (ACN 002 674 982)

First Respondent

CNH INDUSTRIAL CAPITAL AUSTRALIA PTY LTD (ACN 069 132 396)

Second Respondent

AGCO FINANCE PTY LTD (ACN 107 653 878)

Third Respondent

JUDGE: FOSTER J DATE: 17 JULY 2015 PLACE: SYDNEY

REASONS FOR JUDGMENT (REVISED FROM TRANSCRIPT) 1 On 7 October 2014, the appellant, Mr Pavlic, was made bankrupt by order of a Registrar of the Federal Circuit Court of Australia. An application for review of that decision was dismissed by a judge of that Court on 18 February 2015. 2 On 11 March 2015, the appellant filed a Notice of Appeal from the primary judge's decision and orders made on 18 February 2015. 3 Subsequently, on 23 March 2015, the appellant filed an Application for Leave to Appeal from an order for costs made against him by another judge of the Federal Circuit Court. 4 The present appeal is fixed for hearing before a single judge of this Court on 24 August 2015. 5 On 1 May 2015, a judge of this Court ordered (amongst other things) that drafts of the indices to the Appeal Book be submitted to the Registrar by 8 May 2015 and that, within 14 days after being notified of the Registrar's approval of the draft indices, the appellant file two copies and serve on the respondents an appropriate number of copies of Part A and Part B of the Appeal Book. The second order to which I have referred was Order 2 made on 1 May 2015. 6 On 15 May 2015, the draft indices were approved subject to some amendments. Thus, pursuant to Order 2, the appellant was required to file and serve the Appeal Book by 29 May 2015. 7 Apparently, on or about 1 July 2015, the parties agreed amongst themselves that the time within which the appellant was required to comply with Order 2 should be extended to 9 July 2015. The Docket Judge was aware of and sanctioned this arrangement although no order was made regularising the position. 8 The appellant did not file and serve the Appeal Book by 9 July 2015. In light of that circumstance, on 10 July 2015, the respondents applied to the Court to relist the matter. 9 The proceeding was listed before me today as the Commercial and Corporations Duty Judge in the absence of the Docket Judge who is currently on leave. 10 The first and second respondents now apply for an order that the appeal be dismissed by reason of the appellant's failure to comply with Order 2 and his failure to meet the informally extended deadline by which he was required to file and serve the Appeal Book. The Appeal Book has still not been filed and served. The first and second respondents argue that the Court can have no confidence that this appeal will ever properly be prepared and readied for hearing on 24 August 2015 or at all. 11 Mr Angelkov, solicitor, appeared this morning and sought leave to appear for the appellant in circumstances where he informed me he was not actually instructed as the appellant's lawyer but rather as the appellant's agent. Mr Angelkov is not acting as another solicitor's agent but as the appellant's agent. I granted that leave but only for the appearance today. 12 Mr Angelkov submitted that I should allow the appellant further time within which to file and serve the Appeal Book. For that purpose, he sought an adjournment of the present application for two weeks. He then asked for one week. However, there is no evidence before me as to when, if at all, the Appeal Book will be available. In substance, all I am being asked to do is to defer the matter for a time to enable new solicitors possibly to be retained. 13 As I have said, the appeal is fixed for hearing on 24 August 2015 which means that the need for the Appeal Book has become most pressing. I am not satisfied that this appeal will ever be prepared by the appellant. There is no evidentiary material before me that gives me any comfort in that regard. The appellant is in default of the orders of 1 May 2015 and also in default of the arrangement (such as it was) made amongst the parties at the end of June or in early July 2015. 14 In the circumstances, I propose to dismiss the appeal pursuant to s 25(2B)(bb) of the Federal Court of Australia Act 1976 (Cth) and r 5.23(1)(b)(i) and r 36.74(1)(a) of the Federal Court Rules 2011, by reason of the appellant's failure to file and serve the Appeal Book within the time ordered by the Court. 15 I will not make any orders as to costs. 16 I will also vacate the hearing of the appeal fixed for 24 August 2015. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster.

Associate: Dated: 20 July 2015