FEDERAL COURT OF AUSTRALIA
Barodawala v Giasoumi [2015] FCA 608
Citation: Barodawala v Giasoumi [2015] FCA 608 Parties: ISMAIL BARODAWALA v NICHOLAS GIASOUMI File number: NSD 273 of 2015 Judge: GLEESON J Date of judgment: 22 June 2015 Catchwords: BANKRUPTCY AND INSOLVENCY – where applicant caused summons for production to be issued to respondent in form previously required by Registry – where respondent sought order that summons be set aside, in part due to a defect of form – summons set aside by primary judge – arguable that primary judge based decision on incorrect form of summons, without regard to r 2.04 of the Federal Circuit Court Rules 2001 (Cth) – Federal Circuit Court (Bankruptcy) Rules 2006 (Cth), r 6.13 – Federal Circuit Court Rules 2001 (Cth), r 2.04
COSTS – where applicant given short notice of hearing – where applicant’s counsel unavailable – where adjournment application unsuccessful – application for leave to appeal from adverse costs order – costs order attended by sufficient doubt to warrant reconsideration on appeal – leave to appeal granted – Federal Court of Australia Act 1976 (Cth), s 24(1A)
Legislation: Bankruptcy Act 1966 (Cth), s 81
Federal Circuit Court (Bankruptcy) Rules 2006 (Cth), r 6.13, Sch 1
Federal Circuit Court Rules 2001 (Cth), r 2.04
Federal Court of Australia Act 1976 (Cth), s 24(1A)
Federal Court Rules 2011 (Cth), r 35.13Cases cited: Barodawala (in the matter of Sujeetha Perinparajah) [2013] FCCA 1374
Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655
Ejueyitsi v Bond University [2014] FCA 587
Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572; (2000) 104 FCR 564
Karounos v Official Trustee (1988) 19 FCR 330
Kyriackou v Australian Securities and Investments Commission [2010] FCA 253
Rickus v Motor Trades Association of Australia Superannuation Fund Pty Ltd [2010] FCAFC 16; (2010) 265 ALR 112
Samsung Electronics Co Ltd v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238
Vitek v Taheri [2012] FMCA 536Date of hearing: Heard on the papers Date of last submissions: 20 May 2015 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 27 Counsel for the Applicant: Mr A d’Arville (Pro Bono) Solicitor for the Respondent: O’Neill Partners Commercial Lawyers
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 273 of 2015
BETWEEN: ISMAIL BARODAWALA
ApplicantAND: NICHOLAS GIASOUMI
Respondent
JUDGE:
GLEESON J
DATE OF ORDER:
22 JUNE 2015
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The applicant be granted leave to appeal from the costs order made against him by order 2 of the orders of Judge Emmett in the Federal Circuit Court of Australia on 9 March 2015.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 273 of 2015
BETWEEN: ISMAIL BARODAWALA
ApplicantAND: NICHOLAS GIASOUMI
Respondent
JUDGE:
GLEESON J
DATE:
22 JUNE 2015
PLACE:
SYDNEY
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- AGLC
- Barodawala v Giasoumi [2015] FCA 608
- Case
- [2015] FCA 608
- Decision Date
CaseChat Overview and Summary
Barodawala v Giasoumi involved a dispute between the applicant, Barodawala, and the respondent, Giasoumi, concerning a summons for production issued by the Federal Circuit Court (FCC). The summons was part of an examination under section 81 of the Bankruptcy Act 1966 (Cth) and was issued by the FCC on 30 January 2015. The respondent sought to have the summons set aside on various grounds, including that it was not in the prescribed form, and also sought an order for the applicant to pay costs, including indemnity costs. The primary judge set aside the summons, and the applicant appealed against the setting aside of the summons and the costs order. The appeal was heard in the Federal Circuit Court, and subsequently, the applicant sought leave to appeal the costs order to the High Court.
The legal issues before the court included whether the primary judge erred in setting aside the summons on the basis of an incorrect form, without considering rule 2.04 of the Federal Circuit Court Rules 2001 (Cth). Additionally, the court had to determine whether the costs order made against the applicant was appropriate given the circumstances, such as the short notice of the hearing and the applicant's counsel being unavailable.
The court found that the primary judge may have based the decision to set aside the summons on the incorrect form of summons without considering the broader context provided by rule 2.04 of the Federal Circuit Court Rules 2001 (Cth). This rule allows for flexibility in the form of documents filed with the court, indicating that minor defects should not necessarily lead to the dismissal of a summons. The court also concluded that the costs order was attended by sufficient doubt to warrant reconsideration on appeal. The applicant was granted leave to appeal the costs order, and the appeal was allowed on the basis that the primary judge did not consider the relevant factors in making the costs order.
The court granted the applicant leave to appeal the costs order made against him and allowed the appeal on that basis. The court found that the primary judge did not adequately consider the relevant factors, such as the short notice of the hearing and the applicant's counsel being unavailable, in making the costs order. The applicant was also granted leave to appeal the setting aside of the summons, but the appeal on that point was not successful. The court emphasised the importance of considering the flexibility provided by rule 2.04 of the Federal Circuit Court Rules 2001 (Cth) in relation to the form of documents filed with the court.
The legal issues before the court included whether the primary judge erred in setting aside the summons on the basis of an incorrect form, without considering rule 2.04 of the Federal Circuit Court Rules 2001 (Cth). Additionally, the court had to determine whether the costs order made against the applicant was appropriate given the circumstances, such as the short notice of the hearing and the applicant's counsel being unavailable.
The court found that the primary judge may have based the decision to set aside the summons on the incorrect form of summons without considering the broader context provided by rule 2.04 of the Federal Circuit Court Rules 2001 (Cth). This rule allows for flexibility in the form of documents filed with the court, indicating that minor defects should not necessarily lead to the dismissal of a summons. The court also concluded that the costs order was attended by sufficient doubt to warrant reconsideration on appeal. The applicant was granted leave to appeal the costs order, and the appeal was allowed on the basis that the primary judge did not consider the relevant factors in making the costs order.
The court granted the applicant leave to appeal the costs order made against him and allowed the appeal on that basis. The court found that the primary judge did not adequately consider the relevant factors, such as the short notice of the hearing and the applicant's counsel being unavailable, in making the costs order. The applicant was also granted leave to appeal the setting aside of the summons, but the appeal on that point was not successful. The court emphasised the importance of considering the flexibility provided by rule 2.04 of the Federal Circuit Court Rules 2001 (Cth) in relation to the form of documents filed with the court.
Orders
Orders of the court
1. The applicant be granted leave to appeal from the costs order made against him by order 2 of the orders of Judge Emmett in the Federal Circuit Court of Australia on 9 March 2015.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
There is no separate document recording the primary judge’s reasons.Background facts In November 2014, the applicant sought to file four subpoenas to obtain documents from various parties for the purpose of the s 81 examination. On the applicant’s version of events (which does not appear to have been contested), the applicant had discussions with staff of the FCC Registry about the form of the documents he should file. Registry staff required the applicant to file summonses for production rather than subpoenas, and provided the applicant with documents including handwritten notes showing the precise form of the summonses that the Registry required in order for the summonses to be issued. On the basis of this experience, in seeking to obtain documents from the respondent, the applicant used the form of summons (incorporating the handwritten notes) that had been accepted by the Registry in November 2014. The summons was issued by the FCC on 30 January 2015. By interim application filed on 11 February 2015, the respondent sought orders that the summons for production issued to him be set aside, and that the applicant pay the respondent’s costs including indemnity costs. The grounds included that the respondent was not an examinable person under s 81 of the Bankruptcy Act 1966 (Cth), that the form of the summons was not the prescribed form, that the claim for the whole of the respondent’s file was too wide and that leave to issue an examination summons against the respondent was refused in Barodawala (in the matter of Sujeetha Perinparajah) [2013] FCCA 1374 (“2013 FCC decision”). The interim application was made returnable on 13 February 2015 before Registrar Ng, who directed that the application be assigned to a docket judge and set down for hearing. On the evening of Sunday 8 March 2015, the applicant was informed that the interim application would be heard the next day at 2pm. The applicant immediately informed his counsel who wrote a letter to the primary judge seeking an adjournment of the interlocutory hearing by reason of his unavailability. That application was refused. The applicant attended the FCC and made another unsuccessful adjournment application. The matter was then heard, with the applicant representing himself. The summons that was set aside is in the form of a modified version of form 9 in Schedule 1 to the Federal Circuit Court (Bankruptcy) Rules 2006 (Cth) (“Bankruptcy Rules”). In particular, instead of being titled “Summons for Examination”, it is titled “Summons for Production”. Rule 6.13 of the Bankruptcy Rules provides relevantly:Application for summons (Bankruptcy Act s 81) (1)An application to the Court or a Registrar for an examinable person to be summoned for examination in relation to the bankruptcy of a relevant person must be in accordance with Form 10.…(3) The application must be accompanied by: (a)a draft of each summons applied for; and (b)an affidavit that complies with subrule (4).(4) The supporting affidavit must: (a)state whether the applicant is: (i)a creditor who has a debt provable in the bankruptcy; or (ii)the trustee of the relevant person's estate; or (iii)the Official Receiver; and (b)state the facts relied on by the applicant to establish that each person to be summoned is an examinable person; and (c)if the summons is to require an examinable person to produce books at the examination: (i)identify the books that are to be produced; and (ii)give details of: (A)any inquiry by the applicant about the books to be produced; and (B)any refusal by the examinable person to cooperate with the inquiry. (5) If the supporting affidavit is lodged with a Registry for filing (other than by being sent to the Registry by electronic communication), it may be filed in a sealed envelope marked "Affidavit supporting application for summons for examination under subsection 81(1) of the Bankruptcy Act 1966 ". (6) If the supporting affidavit is sent by electronic communication to a Registry for filing: (a)the affidavit may be marked "Confidential"; and (b)if the affidavit is so marked--the affidavit must be accompanied by a statement that the affidavit is a "confidential affidavit supporting an application for summons for examination under subsection 81(1) of the Bankruptcy Act 1966". (7) If the supporting affidavit is: (a)filed in a sealed envelope in accordance with subrule (5); or (b)marked "Confidential" as permitted by paragraph (6)(a); the Registrar must not make it available for public inspection.Consideration
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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