Boensch v Bingham
[2022] FedCFamC2G 77
•4 February 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Boensch v Bingham [2022] FedCFamC2G 77
File number(s): SYG 1781 of 2021 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 4 February 2022 Catchwords: PRACTICE AND PROCEDURE – Bankruptcy – interim application for leave to read additional evidence after hearing of application to set aside bankruptcy notice had concluded – most of the material sought to be read was available at the hearing to set aside the bankruptcy notice and in any event repeated the substance of the matters that were the subject of evidence and submissions at the hearing of the application to set aside the bankruptcy notice – interim application dismissed. Division: General Number of paragraphs: 13 Date of hearing: 4 February 2022 The Applicant: Appeared in person, by telephone Counsel for the Respondent: Mr M Hazan, by telephone Solicitor for the Respondent: Bicknell & Monteith ORDERS
SYG 1781 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FRANZ BOENSCH
Applicant
AND: JOHN DAVID BINGHAM
Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
4 FEBRUARY 2022
THE COURT ORDERS THAT:
1.The interim application filed by the applicant on 31 January 2022 is dismissed.
2.The applicant pay the respondent’s costs attributable to the interim application.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
(Revised from transcript)
On 14 December 2021 I heard an application the applicant, Mr Boensch, brought to set aside a bankruptcy notice issued on the application of the respondent, Mr Bingham. At the conclusion of the hearing I reserved judgment and listed the application for judgment on 25 January 2022. I also made orders permitting Mr Boensch to file additional submissions, and extended the time for compliance with the requirements of the bankruptcy notice to 5:00 pm on 25 January 2022.
On 29 December 2021 Mr Boensch filed and served additional written submissions and, on 19 January 2022, Mr Bingham filed submissions in reply. At my direction, on 24 January 2022 the Court sent an email to the parties stating that I would not be in a position to give judgment on 25 January 2022, but I proposed that on 25 January 2022 I would order that the application be listed for judgment at 9:30 am on 1 February 2022, and extend the time for compliance with the bankruptcy notice to 1 February 2022. On 25 January 2022, I made orders to that effect.
On 31 January 2022, Mr Boensch lodged for filing an interim application seeking an order that he be given leave to allow further evidence to be read in the proceeding. The application was supported by an affidavit which identifies the additional evidence Mr Boensch intended to seek leave to read. Mr Boensch’s application was brought to my attention on 31 January 2022, as a result of which, at my direction, at 11:00 am on 31 January 2022 the Court sent the parties the following email:
It has been brought to his Honour’s attention that the applicant, Mr Boensch, has lodged for filing an interim application seeking an order for leave to file additional evidence. At the listing of the matter tomorrow at 9:30 am, his Honour proposes to make the following orders:
1. List for hearing Mr Boensch’s application for leave to file additional evidence at 9:30 am on 4 February 2022.
2. List the application to set aside the bankruptcy notice for judgment at 9:30 am on 4 February 2022.
3. Extend the time for compliance with the requirements of the bankruptcy notice up to and including 4 February 2022.
There will be no need for any party to appear tomorrow at 9:30 am unless any party wishes to be heard against his Honour making orders to the above effect.
On 1 February 2022 I made orders to the effect foreshadowed in the email sent on 31 January 2022.
Mr Boensch’s application for leave to read additional evidence came before me at 9:30 am on 4 February 2022. Mr Boensch, who is not legally represented, appeared on his own behalf, and Mr Hazan, counsel, appeared for Mr Bingham. Mr Bingham opposed the Court granting Mr Boensch leave to read additional evidence.
Mr Boensch relied on his affidavit. Objections were made to the body of the affidavit on account of it consisting of submissions. The affidavit will be taken to be read and given such weight as the laws of evidence permit. But its principal significance is that the affidavit attaches the additional evidence Mr Boensch seeks leave of this Court to read.
The additional evidence consists of the following:
(a)The summons Mr Boensch recently filed with the Supreme Court of New South Wales seeking judicial review of the decision of the Manager, Costs Assessment refusing to grant Mr Boensch an extension of time to seek a review of the cost determination that is recorded in the cost certificate on the filing of which the judgment on which the bankruptcy notice was issued was entered.
(b)Chapters from the publication titled “Costs Guide 7th Edition” issued by the Law Society of New South Wales.
(c)Transcript of a hearing of proceedings in the High Court. It is unnecessary in these reasons to set out the nature of the proceedings other than to note that the High Court proceedings consisted of an application by Mr Boensch for leave to appeal following the grant of special leave. The High Court appeal is the subject of the costs determination which led to the issuing of the cost certificate which was filed with the District Court of New South Wales, and which in turn resulted in the judgment being issued, which again in turn formed the basis on which the bankruptcy notice was issued.
(d)Emails, two or three of which had already been admitted into evidence, relating to matters dealing with the issues that were or could have become relevant in the High Court appeal.
In submissions Mr Boensch also submitted that he had further documents. One class of document, as I understood what Mr Boensch said, related to either documents that he would want leave to obtain, or put in, and the basis of that appears to be his construction of the costs assessor’s reasons which Mr Boensch submits suggest that the costs assessor had regard to material that did not relate to the costs of the High Court appeal.
In assessing whether to grant the application, there are two broad matters to take into account. The first issue is whether the additional material was available at the time of the hearing, and, if it was, what explanation is there for that material not having been put before the Court. The second is whether the material is, in any way, probative or relevant to the determination of the issues that were the subject of the hearing. Mr Boensch has not demonstrated any basis on which I would be inclined to exercise my discretion to grant him leave to rely on the additional evidence.
The costs guide, transcript, and emails, on their face, were available to Mr Boensch at the time of the hearing; and, in any event, they do not add anything that is substantially different from the matters Mr Boensch raised at the hearing and in his submissions he filed after the hearing. It is true the summons was not available at the hearing before me because it was filed with the Supreme Court on 24 January 2022; but it raises no substantive contention that Mr Boensch had not raised at the hearing and in the submissions he filed on 29 December 2021.
For these reasons, I propose to dismiss the application and proceed to pronounce my orders on Mr Boensch’s application to set aside the bankruptcy notice.
After I delivered the above reasons, Mr Hazan applied for an order that Mr Boensch pay the costs of the interim application. Mr Boensch opposes this on two grounds. The first is he submits it was imperative for him to bring this application given that he had, as I understand him, filed the application in the Supreme Court after the hearing. Second, he submits that this material was responsive to the submissions Mr Bingham filed on 19 January 2022.
These submissions really seek to relitigate the matters on which I have already given judgment, and are not available as a reason for me to exercise my discretion against making the usual order as to costs, which is that a successful party on an application is entitled to his or her costs. I therefore propose to order that Mr Boensch pay Mr Bingham’s costs attributable to the interim application.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Dated: 14 February 2022
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