Asraf v Auswide Car Rentals Pty Ltd
[2008] FMCA 717
•28 May 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ASRAF v AUSWIDE CAR RENTALS PTY LTD | [2008] FMCA 717 |
| BANKRUPTCY – Review of Registrar’s costs order – costs awarded to petitioner when dismissing petition – refusal of applicant’s application to give evidence by telephone – application adjourned. |
| Federal Magistrates Act 1999 (Cth), s.66 |
| Applicant: | NAZMIN ASRAF |
| Respondent: | AUSWIDE CAR RENTALS PTY LTD (ACN 098 009 566) |
| File Number: | SYG 3781 of 2007 |
| Judgment of: | Smith FM |
| Hearing date: | 28 May 2008 |
| Delivered at: | Sydney |
| Delivered on: | 28 May 2008 |
REPRESENTATION
| Counsel for the Applicant: | No appearance by or on behalf of the applicant |
| Counsel for the Respondent: | Mr S Golledge |
| Solicitors for the Respondent: | Blaxell Watson Lawyers |
ORDERS
The applicant’s request to give evidence by telephone is refused.
The hearing of the application for review is adjourned to 8 July 2008 at 10.15 am.
The notice to produce served on the applicant dated 7 May 2008 must be answered by the applicant at that hearing.
Costs incurred by reason of the adjournment are reserved.
The solicitor for the respondent must serve a copy of these orders on the applicant within 3 days.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3781 of 2007
| NAZMIN ASRAF |
Applicant
And
| AUSWIDE CAR RENTALS PTY LTD (ACN 098 009 566) |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an application by Ms Asraf, which was filed on 25 March 2008, and seeks review of an order made by Registrar Hedge on 4 March 2008. The Registrar dismissed a petition lodged by Auswide Car Rentals Pty Ltd against Ms Asraf, with the consent of Auswide, but ordered Ms Asraf to pay the creditor’s costs in the sum of $2967.
Ms Asraf had filed a notice of opposition, which, inter alia, disputed that her signature was on the car hire agreement giving rise to the alleged debt. During the pendency of the petition, she successfully obtained the setting aside of the Local Court default judgment, upon which the bankruptcy notice and petition were based.
Ms Asraf wishes to challenge the costs order on the ground that, in effect, she was the successful party in the proceedings of the petition, and should therefore not have been ordered to pay costs.
The reasons for the Registrar ordering costs are not entirely clear. Her ex tempore judgment has not been published, and I only have her rough notes. After hearing oral evidence from Ms Asraf, which was not recorded, the Registrar appears to have been persuaded by Auswide that Ms Asraf’s conduct involved unreasonable delays in raising her defences in relation to the debt. The current application requires me to arrive at my own conclusions on the relevant evidence, de novo.
The affidavit evidence filed by Ms Asraf in relation to the background circumstances is unclear, and she has presented some documents which require explanation. The petitioning creditor also wishes to cross‑examine Ms Asraf on the circumstances in which she was aware of the alleged debt, raised her defences, and otherwise responded to various documents which may or may not have been served on her. It wishes to call upon a notice to produce which has been served on her.
The application for review was returnable on 15 April 2008, and was referred to me on that day for hearing. I was unable to find time to deal with it on that day, but fixed the matter for hearing today. Ms Asraf was present, and made no objection to that listing. She raised no difficulty in relation to her attendance for the hearing.
However, a series of faxed messages to the court yesterday and today have been received from Ms Asraf, in which she requests that the hearing should be conducted by telephone. She appears to think that she has a right to insist upon that procedure. In that respect she is clearly mistaken.
Proceedings in this court at a final hearing, as indeed in all other courts in Australia, normally proceed by way of the attendance of litigants or their representatives. The Court’s power to allow parties to be heard, and to give evidence, by way of telephone is a discretion which is only exercised where that is in accordance with the interests of justice in the proceedings.
Ms Asraf asserts, without verification, that she was unable to attend today “due to the caring responsibilities of my child”, and also because: “I have medical reason for no prolonged driving, walking and sitting”. In support of the latter claim, she has sent a WorkCover medical certificate dated 20 May 2008. However, this does not assist her, since it certifies that she is fit for suitable duties over a period from 21 May 2008 including today. Insofar as I can decipher the writing, it indicates no support for an incapacity to attend at court today for a short hearing which would be physically undemanding.
I am not persuaded that she has good reasons for being absent today. She was clearly told in response to her request for a telephone hearing yesterday, that I would only allow her application to be heard by telephone if the petitioner consented. It is clear that the petitioner has not consented.
In my opinion, the nature of the dispute as contested before the Registrar and foreshadowed before me is such that plainly it would not be possible for me to properly resolve the factual issues without seeing Ms Asraf in person in the witness box, and without allowing the documents relevant to the case to be properly elicited and put to her in the course of an oral hearing.
Taking into account factors relevant to the court’s discretion under s.66 of the Federal Magistrates Act 1999 (Cth) in relation to taking evidence by oral link, I am clearly persuaded that this dispute cannot be resolved without an oral hearing, even taking into account the relatively small amount at issue. I therefore refuse Ms Asraf’s request to give evidence by telephone.
In all the circumstances, I have decided that I should not dismiss the application today on the ground of her non‑attendance, nor proceed to address the merits of her application in her absence. Counsel for Auswide did not press strongly for either of these courses. In my opinion, the preferable course is to appoint an adjourned hearing, giving Ms Asraf clear notice by way of this judgment that her application will be dismissed if she is not in attendance in person, or by a legal representative, on that date. If she has a genuine medical reason for not attending, and for seeking a further adjournment, she should obtain a medical report addressing her capacity to attend court for a short hearing in which she will be sitting down most of the time.
This adjournment is unfortunate, and has incurred extra costs for the petitioner which will need to be addressed. However, I do not propose to consider today how those costs should be addressed, in the absence of Ms Asraf. I shall therefore reserve the question whether she should be ordered to pay Auswide’s costs of today’s hearing.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 2 June 2008
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