APPLICATION OF OFFICIAL TRUSTEE IN BANKRUPTCY IN THE MATTER OF BANKRUPT ESTATE OF DAVID AUSTIN KELLY (No.3)

[2015] FCCA 3044

FEDERAL CIRCUIT COURT OF AUSTRALIA

APPLICATION OF OFFICIAL TRUSTEE IN BANKRUPTCY IN THE MATTER OF BANKRUPT ESTATE OF DAVID AUSTIN KELLY (No.3) [2015] FCCA 3044

Catchwords:
PRACTICE AND PROCEDURE – Application for adjournment – whether there are grounds for granting adjournment – whether there would be any utility in granting adjournment.

Applicant: APPLICATION OF OFFICIAL TRUSTEE IN BANKRUPTCY IN THE MATTER OF BANKRUPT ESTATE OF DAVID AUSTIN KELLY

File Number: SYG 1925 of 2014

Judgment of: Judge Manousaridis

Hearing date: 5 June 2015

Delivered at: Sydney

Delivered on: 5 June 2015

REPRESENTATION

Solicitors for the Applicant: Ms K P Farmer of TressCox Lawyers

Ms L Williams appeared by telephone for part of the hearing

ORDERS

1. The application for an adjournment is dismissed.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1925 of 2014

APPLICATION OF OFFICIAL TRUSTEE IN BANKRUPTCY IN THE MATTER OF BANKRUPT ESTATE OF DAVID AUSTIN KELLY

Applicant

REASONS FOR JUDGMENT

(revised from transcript)

1. On 1 May 2015 I delivered reasons for judgment in which the only order I made was that the application for final relief filed by the Official Trustee in this matter on 10 July 2014 and the application in a case filed by Lydia Williams on 23 December 2014 be set down for hearing on a day to be appointed immediately after the publication of those reasons.

2. On 1 May 2015 I set the application for final relief and the application in a case for hearing today, that is to say, on 5 June 2015.  In my reasons for judgment of 1 May 2015 I set out some of the procedural history of this matter.  Ms Williams appeared at the hearing today by telephone and Ms Farmer appeared on behalf of the Official Trustee.  Ms Williams, as I understood her, said that she was not ready to proceed with the hearing today. 

3. Ms Williams relied on two matters.  One was what she said was a constitutional challenge which she proposed to mount in the High Court of Australia.  The nature of the proposed challenge is set out in her affidavit of 8 May 2015.  It is quite difficult from that affidavit to determine the nature of the constitutional challenge Ms Williams seeks to mount and the relationship between that challenge and the application that is before this Court.  On the face of that affidavit alone I cannot be persuaded that any adjournment should be granted pending the determination of that application.  An added factor in favour of my not being so persuaded is that Ms Williams indicated that no proceedings had in fact been filed with the High Court and again, as I understood her, she said that the registrar of that court has refused to accept whatever document has been attempted to be filed by her. 

4. The second ground on which Ms Williams seeks to adjourn the matter is her medical condition.  Ms Williams, although she did not tender any evidence at the hearing before me, did send to the registry by email at 8.25 am this morning various documents including a medical certificate.  It is in that email that she asks that the matter be stood over until such time that constitutional matters are determined by the Court.  The medical certificate is one dated 4 June 2015 and is issued by Dr Carlos Sanchez Caballo and it simply states that “Ms Williams is not fit for court.  She is suffering from depression.  She has been treated for pyrrole disorder which worsens under stress”. 

5. The medical certificate does not identify what pyrrole disorder is but a search conducted in the course of my giving this judgment indicates that it is some non-mental disorder.  I have no doubt that Ms Williams suffers from depression and that she may well suffer from other conditions.  My opinion on that matter is based not only on the medical certificate that I have just referred to but also on medical certificates that have been provided by Ms Williams in previous directions hearings and also from my observations of her. 

6. However, there are two things to note about Ms Williams’ medical condition.  First of all, it has not prevented Ms Williams from filing with the court a large number of affidavits.  The second matter is this. I do not think one party’s medical condition can be looked at without reference to the interests of other litigants in the proceeding.  This proceeding has been on foot for almost a year.  The reasons for the delay have been exclusively due to Ms Williams regularly requesting and obtaining adjournments.  In my opinion there is no basis for my believing that to give Ms Williams yet another adjournment would lead to this matter being fully determined on the next occasion.  The likelihood is that on the next occasion Ms Williams would ask for another adjournment.  Another matter which is relevant is that Ms Williams has put on many affidavits.  I cannot see any basis on which granting an adjournment would be of any utility to Ms Williams. 

7. The only thing that she indicated would be achieved by the granting of a further adjournment was not that she would be able to prepare further material for the purposes of this hearing but that she would mount a constitutional challenge in the High Court.  As I have said, there does not appear to be any basis for any constitutional challenge, at any rate none which would affect what I should do in these proceedings.  For those reasons the application for an adjournment will be dismissed and I so order. 

8. I also note, and I should have noted this at the beginning of these reasons, that in the course of hearing submissions from Ms Williams as to why she wanted an adjournment telephonic communication with Ms Williams terminated. I adjourned the matter with a view to allowing my associate an opportunity to re-establish contact.  Contact was attempted to be re-established three times, and those attempts were unsuccessful.  It appears, and I find, that Ms Williams decided that she did not wish to further participate in the hearing before me.[1] 

   [1] After I delivered these reasons, Ms Farmer wished it to be recorded that the Official receiver opposed the Court granting Ms Williams any further adjournment.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  13 November 2015