Schepis & Anor v Esanda Finance Corporation Limited [2007] HCATrans 235 (24 May 2007)

Last Updated: 31 May 2007

[2007] HCATrans 235

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B36 of 2006

B e t w e e n -

ANTHONY SCHEPIS

First Applicant

MICHELE SCHEPIS

Second Applicant

and

ESANDA FINANCE CORPORATION LIMITED

Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 24 MAY 2007 AT 9.17 AM

Copyright in the High Court of Australia

HAYNE J: The applicants seek special leave to appeal against orders of a single judge of the Federal Court of Australia (Dowsett J) made in the exercise of the appellate jurisdiction of that Court. By those orders, Dowsett J dismissed the applicants' application for leave to appeal, out of time, against orders made by the Federal Magistrates Court (Coker FM). The Federal Magistrate had dismissed the applicants' application to set aside a bankruptcy notice.

Because the applicants are unrepresented, this application falls to be dealt with in accordance with r 41.10 of the High Court Rules 2004.

The litigation between the parties that lies behind this application has a long history which begins with a proceeding instituted by the respondent against the applicants in the Local Court of New South Wales as long ago as 1993. By their present application the applicants seek to reopen the judgment given in that proceeding. In the Federal Magistrates Court, however, the decision of the Federal Magistrate turned chiefly upon the rejection of particular complaints made about the sufficiency of the bankruptcy notice. There is no reason to doubt the correctness of the conclusions reached on those issues.

In the Federal Court of Australia, the applicants sought leave to appeal on grounds including a ground that the Federal Magistrates Court "should have gone behind the judgment" of the Local Court. No particulars were given of that proposed ground of appeal, but it appears that the applicants indicated in oral argument that they would seek to argue that the judgment in the Local Court was obtained by fraud.

Dowsett J concluded that there was no satisfactory explanation of the applicants' failure to file a notice of appeal within time and that there appeared to be no viable ground of appeal.

Because the applicants point to the fact that the decision of Dowsett J was made without his Honour having access to the Federal Magistrate's reasons for decision, we have considered the matter by reference not only to the material that was before Dowsett J but also to the other material the applicants advance in support of their application for special leave. We have done that with a view to determining whether any substantive relief would likely be available to the applicants if, as they contend, the course of proceedings in the Federal Court failed to accord them procedural fairness.

Even having regard to that other material we are not persuaded that the actual orders made by Dowsett J are attended by doubt.

Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application. I publish that disposition.

AT 9.20 AM THE MATTER WAS CONCLUDED