Australian Competition and Consumer Commission v Rana
[2007] FMCA 2045
•3 December 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ACCC v RANA & ANOR | [2007] FMCA 2045 |
| BANKRUPTCY – Application for Review of Registrar’s decision – whether sufficient grounds for adjournment – inadequate medical evidence – no appearance by Applicant Debtors – application dismissed. |
| Federal Magistrates Court Rules 2001, r.13.03A(3) |
| Applicant: | AUSTRALIAN COMPETITION AND CONSUMER COMMISSION |
| First Respondent: | MICHEAL LEE RANA |
| Second Respondent: | PAUL JOHN RANA (FORMERLY KNOWN AS PAUL JOHN HEHIR) |
| File number: | MLG 1192 of 2007 |
| Judgment of: | McInnis FM |
| Hearing date: | 3 December 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 3 December 2007 |
REPRESENTATION
| Counsel for the Applicant: (the Creditor) | Mr P. Fary |
| Solicitors for the Applicant: | Corrs Chambers Westgarth |
| First Respondent: | No appearance |
| Second Respondent: (the Debtor) | No appearance |
ORDERS
The Application for Review filed 30 October 2007 by the Debtor be dismissed.
The Debtor pay the Creditor's costs to be paid out of the estate pursuant to the provisions of the Bankruptcy Act 1966 and pursuant to the Federal Court Rules.
IT IS DIRECTED THAT:
A copy of the letter dated 30 November 2007 from the Creditor's solicitors to the Debtor remain on the Court file.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1992 of 2007
| AUSTRALIAN COMPETITION AND CONSUMER COMMISSION |
Applicant (the Creditor)
And
| MICHEAL LEE RANA |
First Respondent
| PAUL JOHN RANA (FORMERLY KNOWN AS PAUL JOHN HEHIR) |
Second Respondent (the Debtor)
REASONS FOR JUDGMENT
(Revised from transcript)
The application before the court is an Application for Review of a Registrar's decision. The application was filed on 30 October 2007. It seeks a review of orders made by the Registrar on 25 October 2007. On that occasion the learned Registrar made the following orders:
“1. A sequestration order be made against the estate of PAUL JOHN RANA (formerly known as PAUL JOHN O’HEHIR).
2. The applicant's costs of and incidental to the petition be taxed and paid in accordance with the statute.”
When the matter was called on today before this court there was no appearance for Paul John Rana (the Debtor) who is the Applicant in the Application for Review.
Counsel for the Australian Competition and Consumer Commission (“the Petitioning Creditor”) has drawn the Court's attention to what appears to be a facsimile transmission purportedly from the Debtor dated 30 November 2007. For present purposes it is conceded that the document appears to be from the Debtor.
The document itself, by inference, appears to seek an adjournment of these proceedings to a date early next year. The author of the document claims to be receiving medical treatment and has “… only now had assistance to prepare this document …". The author states that “the treatment is from 28.11.2007AD to 05.12.2007AD. I will be unable to assist the court in the correct capacity during this time and require recovery for a short time following”. The author then attaches a document purporting to be a doctor's certificate which he claims verifies the "abovementioned details".
The attachment is a certificate purportedly from Moreland Health Centre and is said to be "completed on 28th November 2007" and a signature appears above the name Dr Walter Di Bartolo. The certificate states:
“Mr Paul John Rana
IS RECEIVING MEDICAL TREATMENT FOR THE PERIOD
28th November 2007 TO 5th December 2007 INCLUSIVE
He WILL BE UNFIT TO CONTINUE his USUAL OCCUPATION during this period.”
It is clear that the documentation before the court does not provide any or any adequate material identifying the current medical condition of the Debtor, nor does it indicate whether the medical practitioner is prepared to certify the Debtor as being unfit to attend court, either in person or by audio-link.
No request has been made for the proceedings to be conducted by audio-link. Rather, the certificate appears to refer to treatment being received between 28 November 2007 to 5 December 2007. No mention is made in that material of any surgery, though it is noted that in the cover facsimile transmission from the Debtor he states:
“I have surgery on 6th of December 2007 and will be in and out of hospital for 14 days I can and will provide details of the surgery if and when they are made available to me.”
I make a number of observations about that statement. The first which I have already referred to is that there is no reference to the proposed surgery by the medical practitioner in the certificate, yet strangely the scheduled surgery is to occur the day after the certificate certifies the Debtor as being unfit to continue his usual occupation. The second observation I make is that the reference by the Debtor in his facsimile transmission to the details of the surgery being provided if and when they are available to him, seems somewhat unusual. In my view a person undergoing surgery on 6 December 2007 ought reasonably be aware of the nature of the surgery which is to occur, as claimed, on
6 December 2007.
It is noted that the Petitioning Creditor's solicitors have referred to the facsimile transmission by the Debtor, claimed to have been received at 2.55 pm on Friday, 30 November 2007, and replied by email and post, which I understand was forwarded to the Debtor some time after 6 pm on Friday, 30 November. That correspondence states:
“We refer to your facsimile dated 30 November 2007 and received by us at 2.55 pm today.
Our client does not consent to an adjournment of the Proceeding referred to above on the basis of the material you have provided. If you wish seek an adjournment you should attempt to do so at Court on 3 December 2007.”
Before the court this day Counsel for the Petitioning Creditor, consistent with the obligations of a model litigant, has neither opposed nor consented to the adjournment.
The question of whether or not an adjournment is granted is a matter within the discretion of the Court. That discretion must be exercised judicially.
Where the Court is presented with a facsimile transmission setting out the material to which I have already referred and attaching a medical certificate, it is appropriate for the court to examine that material and to determine whether or not there is sufficient in that material to justify an adjournment.
The Application for Review, as I have indicated, was filed on 30 October 2007. On the material before me that there is a deficiency in the material in terms of the lack of identification of the condition and certification as to whether or not the condition does indeed prevent the Debtor from attending court this day. That lack of detail and the somewhat vague nature of what appears to be proposed surgery on 6 December 2007 leads me to conclude that the material currently before the Court is insufficient to satisfy the Court that an adjournment in all the circumstances would be appropriate.
Accordingly, for those reasons, it is my concluded view that due to the inadequacy of the material the adjournment should be refused.
The matter having been called on this day and there being no appearance for the Debtor, it follows, in my view, having refused the adjournment, that it is appropriate for Court orders pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules 2001 that the Application for Review filed 30 October 2007 be dismissed.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 3 December 2007
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