Cann v Commonwealth Bank of Australia
[2011] FMCA 221
•12 April 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CANN v COMMONWEALTH BANK OF AUSTRALIA | [2011] FMCA 221 |
| BANKRUPTCY – Applications for review of Registrar’s decision related to issuance of sequestration order. PRACTICE AND PROCEDURE – Extension of time in which to apply for review of Registrar’s decision. |
| Federal Magistrates Act 1999 (Cth), ss.3, 104(2) and (3) Federal Magistrates Court Rules 2001 (Cth), rr.1.03, 20.01(1)(c) |
| Cann v Commonwealth Bank of Australia (No.2) [2011] FMCA 242 Hunter Valley Developments v Cohen (1984) 3 FCR 344 Manoher v Minister for Immigration, Local Government and Ethnic Affairs (No.2) (1991) 24 ALD 410 O’Meara v Hitwise Pty Ltd(2007) 160 FCR 518; [2007] FCAFC 114 Pattison v Hadjimouratis (2006) 155 FCR 226; [2006] FCAFC 153 Winn v Blueprint Instant Printing Pty Ltd [2011] FCA 292 |
| Applicant: | GAVIN MICHAEL CANN |
| Respondent: | COMMONWEALTH BANK OF AUSTRALIA |
| File Number: | PEG 2 of 2011 |
| Judgment of: | Lucev FM |
| Hearing date: | 12 April 2011 |
| Date of Last Submission: | 12 April 2011 |
| Delivered at: | Perth |
| Delivered on: | 12 April 2011 |
REPRESENTATION
| For the Applicant: | Mr G M Cann |
| Counsel for the Respondent: | Ms K McNally |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
Each of the interim applications filed by the applicant on 8 April 2011 be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 2 of 2011
| GAVIN MICHAEL CANN |
Applicant
And
| COMMONWEALTH BANK OF AUSTRALIA |
Respondent
REASONS FOR JUDGMENT
Introduction
Proceedings in this matter were listed today for judgment in relation to matters argued on 22 March 2011, especially in relation to:
a)an application by the applicant to set aside a Bankruptcy Notice;
b)an oral application by the respondent to dismiss the applicant’s application because of alleged non-compliance by the applicant with earlier orders of the Court; and
c)an application for pro bono referral by the applicant,
which relate to an earlier application for a review of the sequestration order against the applicant’s estate made by a Registrar of this Court on 21 December 2010.[1]
[1] “First Review Application”.
Further interim applications
This morning there are a further two interim applications, filed last Friday, 8 April 2011, before the Court.[2]
[2] The “Second Review Application” and the “Third Review Application” respectively.
The Second Review Application seeks orders as follows:
1.Leave be granted for the Applicant to make this application outside the time restraint if a time restraint does in fact apply.
2.The decision of the Magistrate/Registrar on 21 December 2010 not to grant an adjournment based on a medical certificate be set aside.
3.My application for an adjournment of the 21 December 2010 hearing be granted. As a consequence of the hearing being adjourned the sequestration order made on 21 December 2010 be set aside.
The Third Review Application seeks orders as follows:
1.Leave be granted for the Applicant to make this application outside the time restraint if a time restraint does in fact apply.
2.The Hearing set for 9.00 am 12th April 2011 be adjourned.
Both interim applications are supported by affidavit, with each affidavit being, in relevant terms, identical, as follows:
On 21 December 2010 a sequestration order was made against me in my absence. I was ill at the time and filed an Affidavit outlining my circumstances, a Medical Certificate stating that I could not attend Court and an application for an adjournment of the hearing. That application was not granted.
Under no circumstances should a Magistrate make a sequestration order without hearing from the subject person. That’s no worse than committing the said subject to a mental institution without having them assessed.
At the Directions Hearing on 22 March 2011 pursuant to my application for a Review of the sequestration order [Federal] Magistrate Lucev reviewed the file and commented that it was most unusual for my application for an adjournment not to have been granted. I subsequently asked myself why I am being treated differently than others.
I therefore decided to appeal the decision not to grant my application for an adjournment on 21 December 2010 and have completed and filed a Form 2. The original affidavit requesting an adjournment is still valid. This is a separate self standing appeal independent of the Review application.
Because of the costs order implications I seek the decision on the Review be held over until this appeal is heard. The Review judgment is schedule for 9.00 am on 12th April 2011.
I look forward to this appeal being successful and the future opportunity to represent myself and present my case that I can meet my debt obligations.[3]
[3] Affidavit of Gavin Michael Cann, sworn 8 April 2011 (“Mr Cann’s Affidavit”).
Second Review Application
The Court proposes to deal first with the Second Review Application.
At the instance of an applicant or respondent, a decision of a Registrar of this Court can only come before a Federal Magistrate by way of a review under s.104(2) and (3) of the Federal Magistrates Act 1999 (Cth).[4]
[4] “FM Act”.
There is a time limit to make an application for a review of a Registrar’s decision. That limit is seven days.[5]
[5] Federal Magistrates Court Rules 2001 (Cth), r.20.01(1)(c) (“FMC Rules”).
This application is more than three months out of time. An extension of time is sought.
In the exercise of its discretion to extend time in which to file an application for review, this Court’s discretion is unfettered, but it is generally accepted that it may apply the principles set out by the Federal Court in Hunter Valley Developments v Cohen[6] namely:
a)the extent of the delay;
b)the explanation for the delay;
c)the prejudice to the respondent; and
d)the prospects of success of the underlying application, with the emphasis generally being on this latter issue.[7]
[6] (1984) 3 FCR 344 (“Cohen”).
[7] Cohen at 348-349 per Wilox J; Winn v Blueprint Instant Printing Pty Ltd [2011] FCA 292 at paras.15-16 per Ryan J.
Extent of delay
The delay here exceeds 14 weeks, or 14 times the statutory limit. There is therefore a very considerable delay in the context of the relevant statutory time limit.
Explanation for delay
The greater the period of delay the higher the Court’s expectation of an explanation.[8]
[8] Manoher v Minister for Immigration, Local Government and Ethnic Affairs (No. 2) (1991) 24 ALD 410 at 411 per Lee J.
In this case there is no overt explanation for the delay. It might be inferred that the reason for the application is what is alleged to have been said by the Court on 22 March 2011, and referred to in Mr Cann’s Affidavit, namely that at the directions hearing on 22 March 2011 the Court allegedly commented that it was most unusual for an application for an adjournment not to have been granted in the circumstances, and consequently, Mr Cann had decided to make an application concerning the Registrar’s failure to grant the adjournment. The Court observes that the delay between the time of the hearing on 22 March 2011 and the making of the Second and Third Review Applications on 8 April 2011 is itself more than twice the statutory limitation period, and that delay is unexplained.
Mr Cann’s Affidavit is only partially correct as to what was said at the directions hearing on 22 March 2011. Relevantly, the Court said that:
HIS HONOUR: … if you are genuinely unable to attend Court then courts traditionally won’t require a person to appear. The question here is … what’s the evidence in relation to that ….[9]
and
HIS HONOUR: [To Counsel for the Respondent] Yes, but that’s also put on the basis of the medical certificate as well, does [is] it not? It says: ‘I seek review of the sequestration order and the costs order [be] set aside.’ Having said that he wasn’t able to attend on medical grounds, and then goes on to say that the basis of the bankruptcy is the default judgment, and then goes on to say, as you’ve said, that it is sought on the basis that the default judgment might be set aside if he gets his money, but it’s also on the basis of the medical certificate and a letter, and that’s what I was asking you.[10]
[9] Transcript, page 6.
[10] Transcript, page 6, the extract is of the Court talking to Counsel for the respondent.
It is evident that the issue of the adjournment of proceedings before the Registrar because of the applicant’s medical state is an issue in the First Review Application, and was put in issue by the applicant. There is therefore no reason why this application should have been so delayed, when the matter was one which otherwise was raised in the First Review Application.
In short, there was no satisfactory or reasonable explanation tendered by the applicant for the delay in filing this Second Review Application, the question of an adjournment on the basis of the Registrar’s approach to the applicant’s medical state being one which was in issue from the outset of the First Review Application.
Prospects of success underlying application
In the Reasons for Judgment prepared in relation to the First Review Application, which are the Reasons for Judgment which the applicant seeks to, by the Third Review Application, have adjourned, the Court has observed that:
32. Second, is the issue of whether or not there is any basis to impugn the sequestration order because of the Registrar’s refusal to adjourn the sequestration order proceedings on the basis of Mr Cann’s alleged medical condition. Whilst it was no doubt open to the Registrar to find that the medical certificate, in its terms, provided no basis for the adjournment sought on 21 December 2010 because it relates only to 20 December 2010, it is now irrelevant, in a practical sense, given that on review this Court will consider the matter afresh.[11]
[11] Cann v Commonwealth Bank of Australia (No. 2) [2011] FMCA 242 at para.32 per Lucev FM (to be delivered immediately after delivery of these Reasons for Judgment). As to the Court considering the matter afresh on review see Pattison v Hadjimouratis (2006) 155 FCR 226 at 235 per Jacobson J and 251-252 per Lander J; [2006] FCAFC 153 at para.43 per Jacobson J and para.156 per Lander J; O’Meara v Hitwise Pty Ltd & Anor(2007) 160 FCR 518 at 521 per Kiefel, Sundberg and Gyles JJ; [2007] FCAFC 114 at para.9 per Kiefel, Sundberg and Gyles JJ.
It is therefore unnecessary to consider the prospects of success of the underlying application because the issue to which it relates is one which the Court will have to consider afresh in any event in the First Review Application. For that reason the Second Review Application is otiose.
Prejudice to the respondent
Given that the issue related to the adjournment of the sequestration order application is open to be considered by the Court on the First Review Application, considering it separately on the Second Review Application would not cause additional prejudice to the respondent, save for the prejudice caused by having to consider duplex applications.
Procedurally
Finally, and particularly with regard to the issue of duplex applications, it is relevant to note that the objects of the FM Act and FMC Rules require this Court to adopt streamlined procedures.[12] To have two concurrent applications for review determining the same issue is not adopting streamlined procedures.
[12] FM Act, s.3; FMC Rules, r.1.03.
Consideration of Second Review Application
Having regard to the fact that:
a)there is a very lengthy delay;
b)there is no reasonable or satisfactory explanation for the delay;
c)the application itself is otiose because the issue raised is an issue in the First Review Application;
d)there is some minor prejudice to the respondent if there are two applications dealing with the same issue; and
e)having two applications dealing with the same issue is not adopting streamlined procedures,
the Court, in the exercise of its discretion, has determined that there should not be an extension of time to file the Second Review Application. That application will therefore be dismissed.
Third Review Application
The Third Review Application seeks that the “hearing” listed for 9.00am today (which has been adjourned pending the outcome of the Second and Third Review Applications), which is in fact the handing down of the Reasons for Judgment in relation to the matters argued on 22 March 2011, be adjourned.
The success or failure of the Third Review Application hinges to a considerable extent upon the success or failure of the Second Review Application. The Second Review Application having failed, the Third Review Application ought to fail also, for essentially similar reasons. There was a very considerable delay in making the application and no explanation at all in the Third Review Application for that delay. The application is also otiose because of the First Review Application. In addition, this Court is required to act quickly with streamlined procedures. In this Court therefore a matter which has been listed for judgment ought not be adjourned without good reason. So, and especially where:
a)the application which seeks to adjourn the handing down of Reasons for Judgment is made less than two working days before the time at which the Reasons for Judgment are listed to be handed down;
b)the Reasons for Judgment have been prepared in written form and are ready to be delivered; and
c)the Second and Third Review Applications reveal no reason to adjourn the handing down of the Reasons for Judgment,
there is, in the Court’s view no good reason to grant the adjournment.
Therefore, in the exercise of its discretion, the Court also dismisses the Third Review Application.
The Court will hear the parties as to costs.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Lucev FM
Date: 12 April 2011
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