Bates v Bechara

This case concerned an application by Ms Bechara for an adjournment of a de novo hearing of a creditor's petition. The petition had been presented by Mr Bates on 7 April 2016, following a bankruptcy notice issued in December 2015. A sequestration order was initially made on 5 July 2016, but this was later set aside by the Full Court of the Federal Court of Australia, which ordered a de novo hearing to be conducted as soon as reasonably possible. The parties involved, including supporting creditors, were predominantly legal practitioners.

The primary legal issue before the court was whether to grant Ms Bechara's application for an adjournment of the de novo hearing. The grounds for the adjournment were that Ms Bechara's legal representative, Mr Martin, claimed he could not legally enter Greater Sydney due to COVID-19 lockdown restrictions, and therefore could not access his client's file to prepare for the oral reply submissions. The court was required to determine if these circumstances warranted vacating or adjourning the part-heard proceeding, which was already in its fifth day.

Justice Kelly, in his reasoning, noted that the power to adjourn a hearing is discretionary and that the creditor's petition was to be heard as soon as possible. He observed that the application for adjournment was made late in the proceedings, not before the commencement of the trial, and not due to the unavailability of a critical witness or illness. The court found that Mr Martin had been aware of the lockdown restrictions since 25 June 2021 and rejected the submission that he was legally precluded from entering Greater Sydney. The judge considered that Mr Martin had the capacity to travel from his farm to his Sydney office or to arrange for his file to be retrieved, and that he was not prevented by the lockdown orders from doing so. Furthermore, the court was not satisfied that Ms Bechara would be deprived of the opportunity to advance a sustainable proposition or suffer serious injustice if her advocate attended court for the reply without his file.

Consequently, the court refused the application for an adjournment. Justice Kelly afforded the parties an opportunity to reflect on the reasons for this decision, particularly Mr Martin's assertions regarding his inability to enter Greater Sydney and his access to the client file. The court indicated that it was not prepared to vacate the hearing and relist it for a later date, given the progress made and the available means for Mr Martin to participate in the proceedings.