Asraf v Auswide Car Rentals Pty Ltd (No.2)
[2008] FMCA 973
•8 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ASRAF v AUSWIDE CAR RENTALS PTY LTD (No.2) | [2008] FMCA 973 |
| BANKRUPTCY – Review of Registrar’s costs order – unjustified absence of applicant – application dismissed with costs. |
| Federal Magistrates Court Rules 2001 (Cth), rr.13.03A(c), 16.05 |
| Asraf v Auswide Car Rentals Pty Ltd [2008] FMCA 717 |
| 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: | 8 July 2008 |
| Delivered at: | Sydney |
| Delivered on: | 8 July 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 application is dismissed under Rule 13.03A(c) for absence from a hearing.
The applicant must pay the respondent’s costs in the sum of $3000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3781 of 2007
| NAZMIN ASRAF |
Applicant
And
| AUSWIDE CAR RENTALS PTY LTD (ACN 098 009 566) |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This matter has become an unfortunate argument about costs. Ms Asraf was the debtor named in a bankruptcy petition, based upon a default order against her in relation to hire charges for a rental car in the amount of $5,869.07. She filed no defence in the Local Court, and did not seek the setting aside of the bankruptcy notice. However, in response to the petition she raised a number of objections before the Registrar, going both to service of various processes, and to the existence of the debt alleged against her. She also obtained an adjournment while she applied to have the Local Court judgment set aside, and was successful in that application.
In those circumstances, the petitioner did not press the petition.
It consented to its dismissal, but sought costs. The Registrar ordered costs of the petition against Ms Asraf, in the sum of $2967 after a hearing in which she gave evidence.
Ms Asraf lodged an application for review of the Registrar’s order, which would require me to consider the issue of costs de novo.
She appeared before me with the representative of the petitioner on 15 April 2008, and without objection I adjourned the matter for hearing on 28 May 2008.
However, shortly before that hearing a series of facsimiles arrived at my chambers from Ms Asraf, demanding a telephone hearing, and also asserting an inability to attend “because of my ill health”. The only medical evidence in support of that contention was an expired WorkCover medical certificate issued by a doctor at Quakers Hill.
Over the objections of the petitioner, which were not strongly pressed, I adjourned the hearing to today, and gave reasons which were published and forwarded to the parties (see Asraf v Auswide Car Rentals Pty Ltd [2008] FMCA 717). At [13] I referred to the possibility of Ms Asraf again asserting medical reasons for a further adjournment, and said:
13.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.
I noted the additional costs being incurred by the petitioner on the review application. They may, as counsel now submits, exceed the amount of the petition.
The Court today at 9.45 am received in the Registry a facsimile requesting another adjournment “as per my medical certificate”.
The attached medical certificate from a doctor at Mount Druitt is dated yesterday and not today. It certifies that Ms Asraf is suffering from “ankle injury/depression and is unfit for attending to the Court. She is also unable to concentrate for Court and travelling”. The doctor has crossed out the section of the certificate allowing an opinion to be given that the disabling condition would continue on any days other than the day of Ms Asraf’s attendance on the doctor.
There has been no appearance today by or on behalf of Ms Asraf, and the petitioner invites me not to accept the medical certificate as sufficiently justifying her absence. It submits that I should dismiss Ms Asraf’s application.
The petitioner’s solicitor received a telephone call late yesterday indicating that an adjournment would be sought, but no medical evidence was forwarded to the solicitor. He received the certificate today at the Court. I adjourned the hearing briefly to allow him to make inquiries at the medical centre as to the authenticity of the certificate. His inquiries confirmed an attendance by Ms Asraf yesterday on Dr Bagherian, and was told that her notes record: “medical certificate for 07/7/08 because of lower back pain, depressed, nerves and anxiety to Court”, or words to that effect.
This has some inconsistency in relation to any orthopaedic problem, and seems to confirm that the doctor gave an opinion only in relation to Ms Asraf’s condition yesterday. On balance, the evidence now before me does not persuade me that she is unfit to attend at Court today or to arrange for an attendance on her behalf.
I note the expenses incurred by the petitioner in the continuation of this proceeding, which has now given rise to three listings for hearing.
In my opinion, it is appropriate to dismiss the application today in the absence of the applicant. She will have a right under r.16.05 of the Federal Magistrates Court Rules 2001 (Cth) to apply to set aside this order, but she will need to present better medical evidence of her unfitness to be here today, with explanations for her absence, and submissions showing the merits of her application and justifying my re‑opening it.
In the circumstances, I think it appropriate to award costs against the applicant, which I shall assess as a lump sum on a very modest basis, taking into account that there have been three attendances by a solicitor and counsel.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 21 July 2008