Brady v Official Trustee in Bankruptcy (No.3)
[2001] FMCA 89
•21 September 2001
FEDERAL MAGISTRATES COURT OF AUSTRALIA
BRADY v OFFICIAL TRUSTEE [2001] FMCA 89
IN BANKRUPTCY (No.3)
LEGAL PRACTITIONERS – Oral application of solicitor on the issue of costs orders after notice of cessation to act – leave to appear refused.
| Applicant: | PETER JOHN BRADY |
| Respondent: | OFFICIAL TRUSTEE IN BANKRUPTCY |
| File No: | WZ 7 of 2001 |
| Delivered on: | 21 September 2001 |
| Delivered at: | Melbourne |
| Hearing Date: | 21 September 2001 |
| Judgment of: | McInnis FM |
REPRESENTATION
| Applicant Brady: | No appearance |
| Intervenor: | Mr W J Chesnutt for H Kremer & Co |
| Solicitor for the Respondent: | Mr T Carey |
| Solicitors for the Respondent: | Australian Government Solicitor |
FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH
WZ 7 of 2001
PETER JOHN BRADY
Applicant
And
OFFICIAL TRUSTEE IN BANKRUPTCY
Respondent
REASONS FOR JUDGMENT
This is the hearing of the matter of Peter John Brady v Official Trustee in Bankruptcy. The hearing was scheduled for the purpose of delivering reasons for judgment. Those reasons for judgment are reasons which arise out of a direction by this court on 22 August 2001 whereby I made orders directing both the applicant and the respondent to provide written submissions on the issue of costs and interest.
As a consequence of those directions, the court received and has considered written submissions made on behalf of the respondent and has also considered written submissions made by the applicant who, by the time the substantive judgment was delivered on
22 August 2001, was acting for and on his own behalf, there having been a document filed with the court indicating the solicitors previously on record for the applicant were no longer acting and indeed the applicant filed a notice of cancellation of solicitor on record on 10 August 2001.
Before me this day is also listed a notice of motion which has been issued by the former solicitors of the applicant and which is listed to be heard after delivery of the reasons for judgment on the costs and interest question in the matter between Brady v Official Trustee in Bankruptcy.
Communications which I have read to the parties from Mr Brady indicated that he would not be available for the delivery of the judgment, and a response which I have read to the court, from the court to Mr Brady, indicated the matter would proceed this day. I have had Mr Brady called by the court officer in Perth and there is no appearance. It has been indicated in the correspondence to Mr Brady that the reasons for the court's judgment would be faxed to him upon the pronouncement of that judgment along with orders which are proposed to be made.
Mr Chesnutt, who appears for Kremer and Co, who are the solicitors seeking to be heard on the notice of motion, has also sought to be heard on the issue of costs orders about to be made by the court, which have been the subject of written submissions by the parties. Mr Carey for the respondent, whilst not formally opposing the right of Mr Chesnutt to be heard, has indicated that it would be an unusual circumstance to allow former solicitors for the applicant to be heard at this late stage.
I am not altogether convinced that in fact Mr Chesnutt has any standing whatsoever at this stage of the proceedings. I have not yet considered whether there is any standing by the solicitors to bring the notice of motion and I will hear argument about that.
However, to the extent that I may have a discretion to allow Mr Chesnutt to be heard at this stage of the proceedings, it is my view that it would be inappropriate to do so and indeed would not be in the interests of the administration of justice to allow a former solicitor for an applicant to agitate again the issue of costs before this court in circumstances where that solicitor ceased to act for the applicant on 10 August 2001 and in the absence of that solicitor acting, the court has received and considered written submissions by the party in response to the written submissions which had been prepared by the respondent. Accordingly, Mr Chesnutt, I refuse you permission and/or leave to appear at this stage of the proceedings.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 21 September 2001
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