Bechara v Bates

Case [2018] FCA 460

FEDERAL COURT OF AUSTRALIA

Bechara v Bates [2018] FCA 460

Appeal from: Application for extension of time: Bates v Bechara (No 2) [2017] FCCA 985
File number: NSD 981 of 2017
Judge: PERRY J
Date of judgment: 6 April 2018
Catchwords: PRACTICE AND PROCEDURE - extension of time within which to seek leave to appeal - appeal from Federal Circuit Court decision refusing to reinstate proceedings summarily dismissed for default – capacity in which self-represented barrister appears and ability to recover costs for so appearing - whether power to grant default judgment under rule 13.03C, Federal Circuit Court Rules is not available on an application for review of a sequestration order made under s 104, Federal Circuit Court of Australia Act - whether primary judge required to satisfy himself that the sequestration order was properly made - whether the applicant denied procedural fairness in refusal to grant adjournment - where the proposed grounds have no reasonable prospects of success - extension of time dismissed
Legislation:

Federal Circuit Court of Australia Act 1999 (Cth) ss 17A, 103, 104

Federal Court of Australia Act 1976 (Cth)

Federal Circuit Court Rules 2001 (Cth) rr 1.03, 4.05, 4.08, 13.03C, 13.03B, 13.03A, 16.05

Federal Court Rules 2011 (Cth) r 35.13
Cases cited:

Alcan (NT) Alumina Pty Ltd v Commissioner of TerritoryRevenue (Northern Territory) (2009) 239 CLR 27

BAO15 v Minister for Immigration and Border Protection [2016] FCA 214

Bechara v Bates (No 4) [2015] NSWSC 1722

Bechara trading as Bechara and Company v Bates [2016] NSWCA 294

BZADA v Minister for Immigration and Border Protection [2013] FCA 1062

House v The King (1936) 55 CLR 499

Hudson v Sigalla (No 2) [2017] FCA 339

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

Jamal v Secretary, Department of Social Services [2017] FCA 916
Lenijamar Pty Ltd v AGC (Advances) Limited (1990) 27 FCR 388

MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530

Pattison v Hadjimouratis [2006] FCAFC 153; (2006) 155 FCR 226

Perera v Minister for Immigration and Border Protection

[2013] FCA 1417

Speedo Holdings B.V. v Evans (No 2) [2011] FCA 1227

Date of hearing: 15 March 2018
Registry: New South Wales
Division: General Division
National Practice Area:

Commercial and Corporations
Sub-area:

General and Personal Insolvency
Category: Catchwords
Number of paragraphs: 37
Counsel for the Applicant: Mr A Kumar
Solicitor for the Applicant: Weighbridge Lawyers
Counsel for the Respondent: Mr P W Bates
Solicitor for the Respondent: Bannister Law

ORDERS

NSD 981 of 2017
BETWEEN:

MARIA BECHARA

Applicant
AND:

PHILIP BATES

Respondent

JUDGE:

PERRY J

DATE OF ORDER:

6 APRIL 2018

THE COURT ORDERS THAT:

1.The application for an extension of time is dismissed. 

2.Costs are reserved.  

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

PERRY J:

1.                 INTRODUCTION

  1. By a decision given on 8 December 2016, the Federal Circuit Court (FCC) dismissed an application for review of the Registrar’s decision sequestering the applicant’s…

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AGLC
Bechara v Bates [2018] FCA 460
Case
[2018] FCA 460
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, Ms Bechara sought an extension of time and leave to appeal the Federal Circuit Court's (FCC) refusal to reinstate her application for review of a sequestration order made by a Registrar of the FCC. The appeal from the FCC's decision was interlocutory and therefore required leave under the Federal Court Rules 2011. The primary legal issues were whether the FCC had the power to give a default judgment and if the FCC had acted in breach of procedural fairness. Ms Bechara also argued that Mr Bates, who appeared as a self-represented litigant but maintained that he should be recognised as counsel, should not be able to recover his costs.

The Court found that the FCC did have the power to give a default judgment under rule 13.03C of the FCC Rules in the context of an application for review of a sequestration order. The Court also found that the FCC did not act in breach of procedural fairness. The FCC was satisfied that Ms Bechara had reasonable notice of the hearing and had been given a reasonable opportunity to prosecute her case. The Court further found that the application for an extension of time should be dismissed as Ms Bechara had not provided an acceptable explanation for the delay and there was no prejudice to Mr Bates. The merits of the substantive appeal, if leave were granted, were also taken into account.

The application for an extension of time within which to seek leave to appeal was dismissed, and costs were reserved.

Orders

Orders of the court

1. The application for an extension of time is dismissed.

2. Costs are reserved.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Even though Mr Bates disavowed any concession that he was not entitled to appear as counsel or recover his costs for so appearing, he did not ultimately press any claim for these “costs” on the basis that to do so would be disproportionate to the amount he sought to recover. That being so it is unnecessary for me to decide this issue here. Nonetheless, as I explained at the hearing and at earlier case management hearings, I have serious doubts regarding the proposition that a self-represented litigant, who is also a practising barrister, can appear as counsel in effect instructing his solicitors to instruct him and is thereby entitled recover his costs as counsel. These doubts include concerns as to how the duties owed by a barrister to those instructing her or him and to the “client” might sit with such a proposition: see also the doubts expressed by Katzmann J in Hudson v Sigalla (No 2) [2017] FCA 339 at [50]-[53] notwithstanding her Honour’s consideration of authorities on which Mr Bates relied. 4. BACKGROUND4.1 The default judgment The amended creditor’s petition seeking a sequestration order against the estate of Ms Bechara was filed on 7 April 2016. The creditor’s petition relied on judgment debts in the amount of $127,936.91 ordered against Ms Bechara in various proceedings in State courts, together with interest. On 5 July 2016, a Registrar of the FCC made the sequestration order and an order for costs. It was not in issue that the Registrar made those orders pursuant to a delegation under s 103 of the Federal Circuit Court of Australia Act 1999 (Cth) (FCCA Act). On 25 July 2016, Ms Bechara applied for review of the Registrar’s decision under s 104 of the FCCA Act. On 8 December 2016, the FCC refused to grant an adjournment of Ms Bechara’s application as requested by her former lawyers by a letter dated 29 November 2016 sent ex parte to the primary judge’s associate (29 November 2016 letter). The primary judge’s reasons for refusing the adjournment are set out in his reasons for the default judgment and explained below. In the 29 November 2016 letter, Ms Bechara’s solicitors explained that they would shortly be filing a notice of ceasing to act. The letter further explained that Ms Bechara would not be appearing on 8 December 2016 and sought an adjournment until February 2017. The letter explained that Ms Bechara was solely responsible for the care of her disabled mother who required full-time care, but that Ms Bechara was likely to have more time to focus on her own affairs if approval was given after February 2017 for her mother to receive a high care package. The letter was accompanied by a letter dated 14 November 2016 from the regular general practitioner treating Ms Bechara’s mother. In the same decision, the FCC also dismissed the application for review on two grounds: first, pursuant to r 13.03C(1)(c) of the FCC Rules for non-appearance by the applicant; and secondly by reason of the applicant being in default for the purposes of r 13.03B(1)(a) by reason of her failure to comply with Court orders and her failure to prosecute her application with due diligence (see r 13.03A(1)(a) and (e) of the FCC Rules). As to the first ground, the primary judge found that, despite her non-attendance, Ms Bechara had reasonable notice of the hearing. In so finding, the primary judge inferred that Ms Bechara’s solicitors (who were present when the matter was set down for hearing) would have complied with their duty to keep her informed of relevant matters (default judgment at [13] and [29]). As to the second ground, the FCC found that Ms Bechara had not complied with orders of the Court for the proper progress of the case and, in particular, timetabling orders requiring the filing of evidence by her. The FCC also found that no affidavit had been filed in support of her application for review contrary to rr 4.05 and/or 4.08 of the FCC Rules, as a consequence of which her case before the Court was unexplained (default judgment at [27] – [28]). The FCC also found that Ms Bechara had been given a reasonable opportunity to prosecute her case given that her application had been set down for hearing with reasonable notice after a number of court events, and that no formal application for an adjournment had been made.4.2 The reinstatement judgment

Evidence

Evidence Before The Court

For the reasons set out below, the application for an extension of time within which to seek leave to appeal should be dismissed.2. EVIDENCE Ms Bechara relied upon her affidavit sworn on 6 June 2017 save for the first sentence of paragraph 15, the annexure referred to in that sentence, and paragraph 16. Mr Bates, relied upon his affidavit affirmed on 12 December 2017 save that the outline of submissions referred to at paragraph 4(t) of the affidavit and included in Annexure PB-1 was hearsay in nature and was received in evidence otherwise than as evidence of the truth of the matters asserted therein.3. CAPACITY IN WHICH THE RESPONDENT APPEARED I note that Mr Bates is a practising barrister. I granted leave to Mr Bates to appear as a self-represented litigant, notwithstanding that he had engaged solicitors. Mr Bates, however maintained until partway through the hearing that he should be permitted to appear in his capacity as legal counsel and to recover his costs to the extent that he was acting as counsel. In so contending, he relied among other authorities upon the decisions in Bechara v Bates (No 4) [2015] NSWSC 1722 and Bechara trading as Bechara and Company v Bates [2016] NSWCA 294 (Bates (NSWCA)). In both of these cases costs were awarded to Mr Bates as counsel despite his status also as a party. I note, however, that the Court of Appeal in Bates (NSWCA) did not decide whether the somewhat controversial “Chorley exception” which applies to self-represented solicitors extended to self-represented barristers (NSWCA, Bates at [65]–[66]). Rather, in the absence of submissions from Ms Bechara, the Court of Appeal considered that it was not appropriate to finally determine what it described as “the important questions of construction”: Bates (NSWCA) at [66]-[67]. Even though Mr Bates disavowed any concession that he was not entitled to appear as counsel or recover his costs for so appearing, he did not ultimately press any claim for these “costs” on the basis that to do so would be disproportionate to the amount he sought to recover. That being so it is unnecessary for me to decide this issue here. Nonetheless, as I explained at the hearing and at earlier case management hearings, I have serious doubts regarding the proposition that a self-represented litigant, who is also a practising barrister, can appear as counsel in effect instructing his solicitors to instruct him and is thereby entitled recover his costs as counsel. These doubts include concerns as to how the duties owed by a barrister to those instructing her or him and to the “client” might sit with such a proposition: see also the doubts expressed by Katzmann J in Hudson v Sigalla (No 2) [2017] FCA 339 at [50]-[53] notwithstanding her Honour’s consideration of authorities on which Mr Bates relied. 4. BACKGROUND4.1 The default judgment The amended creditor’s petition seeking a sequestration order against the estate of Ms Bechara was filed on 7 April 2016. The creditor’s petition relied on judgment debts in the amount of $127,936.91 ordered against Ms Bechara in various proceedings in State courts, together with interest. On 5 July 2016, a Registrar of the FCC made the sequestration order and an order for costs. It was not in issue that the Registrar made those orders pursuant to a delegation under s 103 of the Federal Circuit Court of Australia Act 1999 (Cth) (FCCA Act).

Decision

Reasons for decision

By a decision given on 8 December 2016, the Federal Circuit Court (FCC) dismissed an application for review of the Registrar’s decision sequestering the applicant’s estate. The application was dismissed on the grounds that the applicant, Ms Bechara, had failed to attend the hearing and, in any event, failed to comply with court orders and prosecute the proceeding with due diligence (default judgment). An application by Ms Bechara to the FCC to reinstate that proceeding pursuant to r 16.05(2)(a) of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules) was dismissed by the FCC on 3 March 2017 (reinstatement judgment). Ms Bechara now seeks an extension of time and, if an extension is granted, leave to appeal the default and reinstatement judgments. For the reasons set out below, the application for an extension of time within which to seek leave to appeal should be dismissed.2. EVIDENCE Ms Bechara relied upon her affidavit sworn on 6 June 2017 save for the first sentence of paragraph 15, the annexure referred to in that sentence, and paragraph 16. Mr Bates, relied upon his affidavit affirmed on 12 December 2017 save that the outline of submissions referred to at paragraph 4(t) of the affidavit and included in Annexure PB-1 was hearsay in nature and was received in evidence otherwise than as evidence of the truth of the matters asserted therein.3. CAPACITY IN WHICH THE RESPONDENT APPEARED I note that Mr Bates is a practising barrister. I granted leave to Mr Bates to appear as a self-represented litigant, notwithstanding that he had engaged solicitors. Mr Bates, however maintained until partway through the hearing that he should be permitted to appear in his capacity as legal counsel and to recover his costs to the extent that he was acting as counsel. In so contending, he relied among other authorities upon the decisions in Bechara v Bates (No 4) [2015] NSWSC 1722 and Bechara trading as Bechara and Company v Bates [2016] NSWCA 294 (Bates (NSWCA)). In both of these cases costs were awarded to Mr Bates as counsel despite his status also as a party. I note, however, that the Court of Appeal in Bates (NSWCA) did not decide whether the somewhat controversial “Chorley exception” which applies to self-represented solicitors extended to self-represented barristers (NSWCA, Bates at [65]–[66]). Rather, in the absence of submissions from Ms Bechara, the Court of Appeal considered that it was not appropriate to finally determine what it described as “the important questions of construction”: Bates (NSWCA) at [66]-[67]. Even though Mr Bates disavowed any concession that he was not entitled to appear as counsel or recover his costs for so appearing, he did not ultimately press any claim for these “costs” on the basis that to do so would be disproportionate to the amount he sought to recover. That being so it is unnecessary for me to decide this issue here. Nonetheless, as I explained at the hearing and at earlier case management hearings, I have serious doubts regarding the proposition that a self-represented litigant, who is also a practising barrister, can appear as counsel in effect instructing his solicitors to instruct him and is thereby entitled recover his costs as counsel. These doubts include concerns as to how the duties owed by a barrister to those instructing her or him and to the “client” might sit with such a proposition: see also the doubts expressed by Katzmann J in Hudson v Sigalla (No 2) [2017] FCA 339 at [50]-[53] notwithstanding her Honour’s consideration of authorities on which Mr Bates relied. 4. BACKGROUND4.1 The default judgment

Ratio Decidendi

Legal Principle Established

Thirdly, the FCC found that nothing had been put before the Court which caused it to find that any further time should be granted to the applicant who had already had a reasonable and fair opportunity to present her case (reinstatement judgment at [19]-[20]). The FCC was not satisfied that there was any prospect that, even if her case were re-opened, the applicant would pursue the substantive application with the due diligence, given her lack of due diligence before it was dismissed and her failure to conduct the reinstatement application with due diligence (reinstatement judgment at [22]). 5. CONSIDERATION5.1 The issues There is no proposed ground of appeal that the FCC proceeded on any misapprehension as to the facts. In other words, if an extension of time and leave to appeal were granted, no challenge is foreshadowed to any of the findings of fact underpinning the default and reinstatement judgments. Despite the many proposed grounds advanced in the application before me, the issues as articulated in the written submissions and oral arguments concerned only whether the FCC had power to give a default judgment and whether the FCC acted in breach of procedural fairness. The proposed ground that the primary judge should have disqualified himself on the ground of apprehended or actual bias was rightly abandoned in the written submissions filed in advance of the hearing. 5.2 Is an extension of time required? Leave is required for the reason that the default and reinstatement judgments of the FCC are interlocutory in nature: Perera v Minister for Immigration and Border Protection [2013] FCA 1417 at [4]–[6] (Bromberg J); BZADA v Minister for Immigration and Border Protection [2013] FCA 1062 at [3] (Rangiah J). I note however that the application for leave to appeal includes a ground that that no leave was required and that Ms Bechara has a right of appeal pursuant to subs 24(1)(d) and (1A) of the Federal Court of Australia Act 1976 (Cth). However, save for a bare assertion to the same effect in the written submissions, no oral or written submissions were developed by Ms Bechara in support of that contention. As such, it must be taken to have been rightly abandoned. As to the antecedent question of an extension of time, Ms Bechara’s application in this Court was filed on 20 June 2017, being relevantly over three months after the reinstatement decision on 3 March 2017. However, the 14 day appeal period from the reinstatement decision expired on 17 March 2017: see r 35.13 of the Federal Court Rules 2011 (Cth). 5.3 Relevant principles applicable to an application for an extension of time The principles relevant to the exercise of discretion to grant an extension of time within which to appeal are well established: see e.g. BAO15 v Minister for Immigration and Border Protection [2016] FCA 214 at [19] (Perry J); Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348–349 (Wilcox J). These may be summarised as follows.(1)An extension of time will not be granted unless the Court is positively satisfied that it is proper to do so.(2)The length of the delay is a relevant factor. (3)The applicant must show an acceptable explanation for the delay, and that it is fair and equitable in the circumstances to extend time.(4)Any prejudice to the respondent is a material factor militating against the grant of an extension, although the absence of prejudice does not, without more, suffice to justify the grant of an extension of time.(5)The merits of the substantive appeal, if leave were granted, are properly to be taken into account.