Cann v Commonwealth Bank of Australia (No.3)
[2011] FMCA 303
•6 May 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CANN v COMMONWEALTH BANK OF AUSTRALIA (No.3) | [2011] FMCA 303 |
| BANKRUPTCY – Application for review of sequestration order made by Registrar. PRACTICE & PROCEDURE – Application for adjournment of directions hearing. |
| Bankruptcy Regulations 1996 (Cth), reg.16.01 Federal Magistrates Court Rules 2001 (Cth), rr.1.03, 6.06, 6.07, 20.03(b) and (d)(ii) |
| Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Hoffman v Chief of Army (2004) 137 FCR 520; [2004] FCAFC 148 Official Receiver for the Bankruptcy District of WA v Amaro (2009) 229 FLR 226; (2009) 7 ABC(NS) 244; (2009) 109 ALD 577; [2009] FMCA 567 Skalkos v T & S Recoveries Pty Ltd (2004) 141 FCR 107; [2004] FCAFC 321 |
| Applicant: | GAVIN MICHAEL CANN |
| Respondent: | COMMONWEALTH BANK OF AUSTRALIA |
| File Number: | PEG 2 of 2011 |
| Judgment of: | Lucev FM |
| Hearing date: | 21 April 2011 |
| Date of Last Submission: | 21 April 2011 |
| Delivered at: | Perth |
| Delivered on: | 6 May 2011 |
REPRESENTATION
| For the Applicant: | No appearance |
| Counsel for the Respondent: | Ms K McNally |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The applicant file and serve:
(a)any amended application for review; and
(b)any further affidavits,
by 20 May 2011.
The applicant:
(a)file and serve any amended application for review on the Trustee in Bankruptcy; and
(b)give notice to all creditors as required by rule 7.06 of the Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth),
by 27 May 2011.
The applicant file and serve an affidavit of compliance with Order 2 by 3 June 2011.
The respondent file and serve:
(a)by 17 June 2011:
(i)notice of grounds of opposition to any amended application for review; and
(ii) any further affidavits;
(b)by noon on 3 August 2011:
(i)an affidavit of verification pursuant to rule 4.05(b) of the Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth);
(ii)an affidavit of search pursuant to rule 4.06(3) of the Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth); and
(iii)an affidavit of debt pursuant to rule 4.06(4) of the Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth).
Under rule 7.04 of the Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth), the Trustee in Bankruptcy file and serve a report on the applicant’s affairs by 24 June 2011.
The respondent to:
(a)serve a copy of these Orders on the Trustee in Bankruptcy by 2 May 2011; and
(b)file and serve an affidavit of compliance with paragraph (a) of this Order,
by 9 May 2011.
The matter be referred for mediation before a Registrar of this Court, other than Registrar Jan, for mediation on a date after 24 June 2011 as fixed by the Registrar.
If the matter is not resolved at mediation on or before 31 July 2011:
(a)any amended application for review; and
(b)the respondent’s adjourned oral application for dismissal of the application for review,
be listed for hearing at 10:15am on 23 August 2011, with each party to file and serve an outline of submissions by 16 August 2011.
The applicant’s:
(a)affidavit made 21 April 2011 be accepted for filing and further be considered to be an application in a case for adjournment of the directions hearing on 21 April 2011; and
(b)application in a case for adjournment of the directions hearing on 21 April 2011 be dismissed, with reasons for judgment to be published from Chambers at a later date.
There be liberty to apply generally.
Costs be reserved.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 2 of 2011
| GAVIN MICHAEL CANN |
Applicant
And
| COMMONWEALTH BANK OF AUSTRALIA |
Respondent
REASONS FOR JUDGMENT
(Published from Chambers under s.13(3)(a) of the Federal Magistrates Act 1999 (Cth))
Introduction
The substantive application in these proceedings, filed on 11 January 2011, is for review of a sequestration order made by a Registrar of this Court on 21 December 2010.
On 12 April 2011 the Court ordered that:
5.The parties are to confer:
(a)forthwith in an attempt to resolve the matter; and
(b)if not resolved, with respect to future programming orders.
6.Otherwise, the matter is adjourned to 4.00pm on 21 April 2011 for further directions.
Those orders related to observations made by the Court in Cann v Commonwealth Bank of Australia (No. 2).[1] The Court observed as follows:
[1] [2011] FMCA 242 (“Cann (No. 2)”).
35.In this case, the Court can probably take judicial notice of the fact that a residential property in Nedlands, such as the Nedlands Property, is likely to be worth, at least, several hundred thousand dollars, and more likely, in excess of $1,000,000. In those circumstances, and in the present absence of any evidence of liabilities exceeding $106,621, plus costs in the District Court, this Court ought to be cautious before it dismisses an application for review of a sequestration order on what are essentially procedural grounds. To order dismissal might be a triumph of form over substance, and an invitation for Mr Cann to appeal any order of dismissal. In light of the judgment in Legge, such an appeal might have some prospects of success, particularly if new evidence were able to be led on the appeal of the value of, and Mr Cann’s interest in, the Nedlands Property.[2]
[2] Cann (No. 2) at para.35 per Lucev FM (footnotes omitted).
…
37.It nevertheless remains the case that the Court has no evidence before it that Mr Cann has complied with the orders requiring that creditors be served with notice of the application for review. Given the situation concerning solvency outlined above, the Court considers it appropriate that orders be made that allow Mr Cann:
(a)to file an amended application for review;
(b)to file affidavits in support of the application for review, and in particular with respect to the issue of solvency; and
(c)yet a further extension of time in which to file an affidavit of compliance with respect to notice to creditors of the application for review.
38.Two observations are pertinent in this respect. The first, is that in order to prove solvency it will be necessary for Mr Cann to make full and frank disclosure of his financial affairs by way of affidavit. Necessarily this will involve an accounting of assets and liabilities, disclosure of bank accounts (both credit and debit), credit cards, loans and mortgages, shares, real estate, motor vehicles and so on. Second, there should already be a Statement of Affairs filed by Mr Cann in relation to his bankruptcy disclosing such information. On the assumption that Mr Cann has been fulfilling his duty to co-operate with his bankruptcy trustee the Court proposes to make an order that there be a report provided by the Official Trustee to the Court as to the bankrupt’s affairs, under the provisions of r.7.04 of the FMC (Bankruptcy) Rules.[3]
[3] Cann (No. 2) at paras.37-38 per Lucev FM (footnotes omitted).
…
41.Having regard to the possible position with respect to solvency as a consequence of Mr Cann being the registered proprietor of the Nedlands Property, and bearing in mind the ultimate outcome in Legge, the Court considers it appropriate that before the matter comes back before a Federal Magistrate, there be discussions between the parties in an attempt to resolve the present dispute by alternative means, either by agreement between them, or by conciliation or mediation.
42.In these circumstances, the Court considers it appropriate to allow a period of time for the parties to confer with a view to:
a) seeing whether it is possible to resolve the issues associated with the application for review, without the necessity for further proceedings in this Court; or
b) at the very least, seeing whether agreement can be reached with respect to consent orders reflecting the Court’s Reasons for Judgment herein under the sub-heading “Further orders”.
43.If the parties are unable to achieve resolution, or agreement on consent orders, then the matter will have to come back before the Court. In the circumstances, the matter will be adjourned to a directions hearing to be held at 4.00pm on 21 April 2011. There will be an order accordingly.[4]
[4] Cann (No. 2) at paras.41-43 per Lucev FM (footnotes omitted).
It would appear that the parties were not able to achieve any resolution of the issues and the matter was due to come back before the Court for directions at the appointed time on Maundy Thursday, 21 April 2011.
On 21 April 2011 at 3.02pm, 58 minutes before the scheduled 4.00pm directions hearing, Mr Cann forwarded by facsimile to the Court Registry a document entitled “Affidavit” and marked as urgent, the substance of which was in the following terms:
1.I am of ill health and unable to attend today’s 4.00pm hearing. I will forward a medical certificate next week.
2.I request an adjournment of two weeks to recover and comply with previous orders.
3.I have notified Clayton Utz for the Bank of the pending adjournment.
At the directions hearing the Court indicated that the affidavit could be accepted for filing and further be considered to be an application in a case for adjournment of the directions hearing. The Court indicated that the application for adjournment would be dismissed with the Reasons for Judgment to be published in Chambers at a later date. Order 9 of the orders which were issued on 21 April 2011 was to the foregoing effect.
The Court notes that there is no evidence that an affidavit attaching a medical certificate was ever filed with the Court or that a medical certificate was ever forwarded to the Court following the 21 April 2011 hearing.
What now follows are the Reasons for Judgment in relation to the refusal of the adjournment.
Adjournment principles
Any application for adjournment must be considered in the relevant statutory, factual and case management context. The role and mode of operation of this Court as set out in the Federal Magistrates Act 1999 (Cth)[5] and the Federal Magistrates Court Rules 2001 (Cth),[6] as prescribed by the objects of the FM Act[7] and the objects of the FMC Rules,[8] provide for the Court to operate in a manner:
a)as informal as possible in the exercise of judicial power;
b)which is not protracted in its proceedings;
c)which resolves proceedings justly, efficiently and economically;
d)which uses streamlined procedures; and
e)that avoids undue delay, expense and technicality.
[5] “FM Act”.
[6] “FMC Rules”.
[7] FM Act, ss.3 and 42.
[8] FMC Rules, r.1.03.
Further, the Court must take into account the following principles when determining whether or not to grant leave to allow an adjournment:
a)the paramount consideration remains the doing of justice between the parties, but a just resolution must have regard to any relevant legislative purpose or object;
b)modern principles of case management;
c)the avoidance of undue delay; and
d)the wastage of public resources.[9]
[9] Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 at 192 per French CJ and 213-215 per Gummow, Hayne, Crennan, Kiefel and Bell JJ; [2009] HCA 27 at para.30 per French CJ and paras.97-103 per Gummow, Hayne, Crennan, Kiefel and Bell JJ; Fair Work Ombudsman v Kentwood Industries Pty Ltd [2010] FCA 98 at para.2 per McKerracher J.
Proper consideration must be given to the interests of justice, case management and prejudice, and all need to be considered in the framework of the relevant statutory objects and rules. In order to undertake that task it is necessary to set out some of the litigation history of the present proceedings, and the proceedings before a Registrar which led to the issuance of the sequestration order which Mr Cann has applied to have reviewed.[10]
History of litigation
[10] In so doing the Court may receive as evidence:
(a)any affidavit or exhibit tendered before the Registrar; and
(b)an affidavit sworn by a person present at the proceeding before the Registrar,
as a record of the proceeding. FMC Rules, r.20.03(b) and (d)(ii).
Before the Registrar
The Creditors Petition was filed on 19 August 2010 and set down for hearing before a Registrar on 21 September 2010.
An affidavit of service was filed on 19 August 2010 by a vacation clerk employed by the Commonwealth Bank of Australia’s[11] solicitors who on 28 June 2010 attended at 31 Bulimba Road, Nedlands[12] where Mr Cann has a property,[13] and where the following is said to have occurred:
[11] “CBA”.
[12] “Nedlands Property”.
[13] Affidavit of Demosthenes Georgiou, sworn 2 July 2010, para.2 (“Mr Georgiou’s Affidavit”).
3.I rang the door bell of the Property. A short time later, a man appeared at the side gate. The man was wearing a beanie and he was standing behind the gate. However, I believe he was Mr Cann, who I had previously seen at a directions hearing on 22 June 2010 in District Court action numbered CIV 2915 of 2009. The following exchange took place:
Me: Is that you Mr Cann?
Man: I am a boarder.
4.He then turned around and walked away.
5.While the man was about 4 metres away and still in sight I said “Mr Cann, I am serving this bankruptcy notice on you”.
6.I then left the Notice under the gate.[14]
[14] Mr Georgiou’s Affidavit, paras.3-6.
On 26 August 2010 a solicitor employed by Clayton Utz attended the Nedlands Property where the following is said to have occurred:
3.We arrived at the Premises at approximately 12.35pm. When we arrived at the Premises Mr Gavin Cann was standing on the driveway out the front of the Premises. I got out of the taxi and approached Mr Cann and said words to the effect of:
“Hello Mr Cann. I am from Clayton Utz and I am here to serve you with these documents.”
4.I then handed Mr Cann a bundle of documents … I handed to Mr Cann …:
(a)Creditors Petition;
(b)Affidavit of Kerry Jia Ni Low; and
(c)Affidavit of Demosthenes Georgiou.
5.Mr Cann took the documents and said either “thanks” or “thankyou”. He then walked towards the house with the documents.
6.I know the person to whom I gave the documents was Mr Cann because I had on 20 July 2010 attended a hearing at the District Court at which Mr Cann appeared.[15]
[15] Affidavit of Service of Timothy James Donisi, sworn 1 September 2010, paras.3-6 (“Mr Donisi’s Affidavit”).
An affidavit was also filed by Mr Cann on 20 September 2010, sworn 17 September 2010, asserting that the statements made in a Notice Stating Grounds of Opposition to the Petition were true. Amongst the grounds alleged was invalid service of the Bankruptcy Notice. Mr Cann alleged that service under rr.6.06 and 6.07 of the FMC Rules had not occurred. Mr Cann said that there was neither service by:
a)hand; nor
b)putting the Bankruptcy Notice down in the presence of the person to be served and telling the person what it is that is being served where the person to be served does not take the document. Mr Cann asserted that from Mr Georgiou’s Affidavit and Mr Donisi’s Affidavit that neither of these had occurred. An attachment to the Notice of Opposition says as follows:
The petition is opposed on the grounds that the Bankruptcy notice claimed to have been served on 28th June 2010 was improperly and invalidly served. There was no service.
… [Rules 6.06 and 6.07 of the FMC Rules are then set out].
From the affidavit of the server neither of these occurred.
He states that after he rang the door bell (at Mr Cann’s address) he saw a man looking over the fence who identified himself as a boarder.
It is the case I have up to 4 boarders lodging with me and they are not interested in door knockers pushing religion, asking for charity funds or strangers.
The server is assuming the person who was on the other side of a 1.75m masonry wall and walking some meters (sic) away heard what the server said.
The server did not serve the document by hand or put it down in the presence of the Respondent. He left it on the ground, in the open exposed to the elements.
The Respondent has not seen the document or its contents. It probably got blown into the street and disintegrated in the rain. As a consequence the Respondent has not responded.
Because there was an element of doubt:
· Regarding the identity of the man
· Whether the man heard what the server said
· Or if he was in the server’s presence.
the server should have returned to his office and applied for a substituted service. He had the option to do that but did not.
On 20 September 2010 Ms McNally, a solicitor acting for the CBA, swore an affidavit, filed on 21 September 2010, indicating that the Bankruptcy Notice had been sent to Mr Cann by email on 4 July 2010,[16] and further as follows:
[16] Affidavit of Kathleen Marie McNally, sworn 20 September 2010, para.3 (“Ms McNally’s September 2010 Affidavit”).
4.At a directions hearing in District Court action No. 2915 of 2009 (Action) on 6 July 2010 Mr Cann referred to the Bankruptcy Notice in open court.
5.At a directions hearing before Registrar Harman on 20 July 2010 in the Action Mr Cann stated words to the effect that:
(a)the 21 days in the Commonwealth Bank’s Bankruptcy Notice were probably nearly up; and
(b)could he have a stay regarding the Bankruptcy Notice.
6.At a special appointment regarding Mr Cann’s set aside application on 28 July 2010 Mr Cann referred to the Bankruptcy Notice in open court.
7.Mr Cann has also filed documents in the Action regarding the Bankruptcy Notice. These documents can be provided to the Federal Magistrates Court if ordered.[17]
[17] Ms McNally’s September 2010 Affidavit, paras.4-7.
On 21 September 2010 the Registrar adjourned the Petition to 26 October 2010, and ordered that the applicant and respondent file any further affidavits.
On 5 October 2010 Ms McNally filed another affidavit sworn that day in which she said as follows:
2.On or about 16 July 2010 Mr Cann filed an affidavit in the District Court action attaching a copy of the Bankruptcy Notice and stating at paragraph 4:
“[at the hearing on 6 July] … I also requested a Stay Order against the Commonwealth Bank who had issued me with a Bankruptcy Notice. The Deputy Registrar requested that I provide a copy of that notice to the court. Attachment B is a copy of that notice”.[18]
[18] Affidavit of Kathleen Marie McNally, sworn 5 October 2010, para.2 (“Ms McNally’s October 2010 Affidavit”).
A copy of Mr Cann’s affidavit, including the attachment, was attached to Ms McNally’s October 2010 Affidavit.
On 19 October 2010 Mr Cann filed an affidavit sworn on 18 October 2010 in which he said as follows:
2.The issue is not that I eventually came across the Bankruptcy Notice left on a path outside, but whether it was validly and legally served on me.
3.In the Applicant’s Submission of 5 October 2010 reference is made to regulation 16.01.[19] This is of no relevance as Rules take precedent over regulations.
…[Reference is then made to Rules 6.06 and 6.07 of the FMC Rules]
5.As the Notice of Bankruptcy was not validly or legally served on the Respondent the case must be dismissed.[20]
[19] On 5 October 2010 the CBA also filed submissions in relation to the Creditors Petition hearing on 26 October 2010 referring to reg.16.01 of the Bankruptcy Regulations 1996 (Cth) (“Bankruptcy Regulations”) and asserted that the Bankruptcy Notice had been served by:
[20] Affidavit of Gavin Michael Cann, sworn 18 October 2010, paras.2, 3 and 5.
When the Creditors Petition came on before the Registrar on 26 October 2010 it was adjourned to 8 November 2010. On 8 November 2010 the Petition was adjourned to 14 December 2010. On 14 December 2010 Mr Cann did not appear and the Petition was adjourned to 21 December 2010.
On 15 December 2010, Marianne Clare Lee, a legal secretary employed by CBA’s solicitors, Clayton Utz, said that she emailed a letter to Mr Cann and caused it to be posted in a prepaid envelope to the Nedlands Property.[21] A copy of the letter was annexed to Ms Lee’s affidavit sworn on 17 December 2010, and substantively it said as follows:
[21] Affidavit of Marianne Clare Lee, sworn 17 December 2010, para.2 (“Ms Lee’s Affidavit”).
We confirm that the hearing of the Bank’s Creditors Petition has been adjourned to 11.30am on 21 December 2010.
Principal Registrar Jan requested we inform you that:
1.any future non-appearance by you be supported by affidavit along with appropriate supporting documentation and be filed with the Court prior to hearing; and
2.if you do not intend to appear personally on 21 December 2010 that you organise for a legal representative to appear on your behalf.
We will, in any event, seek orders for your bankruptcy on 21 December 2010. That is, whether or not you provide us with the affidavit or organise for legal representation at that hearing, we are instructed to seek those orders from the Court.[22]
[22] Ms Lee’s Affidavit, Annexure MLC 1.
On 21 December 2010 there was no appearance at the hearing by Mr Cann and the Registrar made a sequestration order against the estate of Mr Cann.
In an affidavit sworn by Troy Joshua Greig on 20 April 2011 and filed 21 April 2011[23] in the proceedings for a review of the sequestration order, is a letter from Mr Cann[24] addressed to the Court dated 20 December 2010 but received by the Court shortly before 11.00am on 21 December 2010. Written by hand on Mr Cann’s 21 December 2010 Letter is the following:
[23] Affidavit of Troy Joshua Greig, sworn 20 April 2011 (“Mr Greig’s April 2011 Affidavit”).
[24] Mr Greig’s April 2011 Affidavit, part of Annexure TJG 5 (“Mr Cann’s 21 December 2010 Letter”).
urgent Court hearing
11.30am today 21 Dec.
The content of Mr Cann’s 21 December 2010 Letter is as follows:
1.I previously advised the Court that I was ill and not able to attend. Attached is a Medical Certificate confirming that.
2.I requested that the matter be adjourned to the end of January 2011 when hopefully I would have recovered. The Magistrate (sic - Registrar) adjourned the matter for one week to the 21st December.
3.I remain ill and cannot attend Court on 21 December. A Medical Certificate is enclosed confirming that.
4.I am being admitted to Hollywood Private Hospital on 22 December for extensive testing to determine the cause of my ill health. I do not know how long I will be in hospital.
5.I am representing myself in this matter and want to present my objection and defence to the case in person. (I cannot afford a solicitor being 4 years unemployed). I am entitled to represent myself in person.
6.I again request an adjournment of this case to the end of January 2011.
Attached to Mr Cann’s 21 December 2010 Letter are two medical certificates from Dr Bernard Kessell of the Claremont Medical Centre. The first is dated 15 December 2010 and says as follows:
This is to certify that on 15/12/2010 I examined the above named person. In my opinion he is suffering from a medical condition and was unfit for court from 14/12/2010 to 14/12/2010 inclusive.
The second medical certificate is dated 20 December 2010 and simply says that:
In my opinion Mr Cann is suffering from a medical condition and is unfit for court appearance.
Upon review
The application for review was filed on 11 January 2011. In an attached affidavit affirmed on 11 January 2011 Mr Cann indicated that he was unable to attend the Court to put his case on 21 December 2010 due to ill health, and that he had filed a medical certificate and that he had requested an adjournment.[25] The contents of that letter and the medical certificates, which were sent to the Court but not filed, are relevantly set out above.[26]
[25] Affidavit of Gavin Michael Cann, affirmed 11 January 2011, para.1 (“Mr Cann’s January 2011 Affidavit”).
[26] See paras. 24-27 above.
On 7 February 2011 the application for review came on for first directions, and the Court ordered that:
1.The Applicant:
(a)file and serve the Application on the Trustee; and
(b)give notice to all creditors,
as required by Rule 7.06 of the Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth) by 21 February 2011.
2.The Applicant file and serve an affidavit of compliance with Order 1 by 28 February 2011.
3.The matter be adjourned to a further directions hearing at 9:00am on 4 March 2011.
4.The costs of today be reserved.
Mr Cann failed to comply with Order 2 of the Court’s orders of 7 February 2011 and when the matter came back on before the Court on 4 March 2011 the Court made the following orders:
1.The time for compliance with Order 2 of the Court’s Orders of 7 February 2011 be extended to 18 March 2011.
2.The matter otherwise be adjourned to 9:30am on 22 March 2011.
3.If the applicant fails to comply with Order 1 the respondent has liberty to apply orally at the directions hearing on 22 March 2011 for summary dismissal of the application.
4.Costs of today be reserved.
When the matter came back on before the Court on 22 March 2011 the CBA pressed its oral application to dismiss Mr Cann’s application for review, for non-compliance with the Court’s previous orders. Mr Cann pressed an application for referral to a Registrar of the Court for referral to a lawyer on the pro bono panel for legal assistance.
Ultimately on 12 April 2011, for reasons set out in Cann (No.2), the Court made the following orders, including orders 5 and 6 which are set out above:[27]
[27] See para.2 above.
1.The application be amended to name the respondent as “Commonwealth Bank of Australia”.
2.Insofar as there is an application to set aside a Bankruptcy Notice said to have been served on the applicant on 21 December 2010, that application be dismissed.
3.The respondent’s oral application to dismiss the application be adjourned with liberty to apply on 3 days notice.
4.The applicant’s application under r.12.03 of the Federal Magistrates Court Rules 2001 (Cth) for referral to a Registrar of this Court for referral to a lawyer on the pro bono panel for legal assistance in relation to these proceedings be dismissed.
5.The parties are to confer:
(a)forthwith with in an attempt to resolve the matter; and
(b)if not resolved, with respect to future programming orders.
6.Otherwise, the matter is adjourned to 4.00pm on 21 April 2011 for further directions.
7.Costs in the cause.
The judgment delivered in Cann (No.2) had already been listed for delivery on 12 April 2011 when a further two interim applications were filed by Mr Cann on the preceding Friday, 8 April 2011. Both of those interim applications were dismissed, the second of those interim applications being one which had sought to adjourn the handing down of the Reasons for Judgment on 12 April 2011.[28]
[28] See Cann v Commonwealth Bank of Australia [2011] FMCA 221 in which the two interim applications were dismissed.
It was against the above background that the application for an adjournment of the directions hearing on 21 April 2011 was made by facsimile less then an hour before that directions hearing was due to commence.
Consideration
In relation to the current application for adjournment of the directions hearing on 21 April 2011 the Court observes that:
a)the application was made very late, and, literally, at the last possible hour;
b)the application was unsupported by any medical evidence, and there is no indication as to the nature of the illness, or why it precluded a Court attendance, either in person (or by some other means, for example, telephone);
c)the matter was only on for directions, and no irrevocable steps to the prejudice of Mr Cann were likely to be taken, and the directions which the Court had in contemplation, and which it ultimately made, are such as to allow ample time for Mr Cann to take the further steps necessary in relation to these proceedings;
d)there is continued prejudice to the respondent by reason of the continual delays caused by Mr Cann’s non-appearance and alleged illnesses, especially in circumstances where:
i)Mr Cann asserts that he is solvent[29] and it would be in his best interests to prove that he is solvent sooner rather than later, but if he is not solvent then there is considerable prejudice not only to the CBA, but to all creditors (whomever they may be) and the administration of the bankrupt estate in continuing delays;
ii)Mr Cann has failed to comply with earlier orders of this Court;
iii)the medical evidence which was tendered before the Registrar was of the barest kind, and failed to indicate what illness or injury Mr Cann suffered from, and why it prevented him from attending Court. There comes a point when:
(A)such bare and, frankly, insufficient medical evidence, cannot continue to be used to support adjournments; and
(B)litigation (and especially bankruptcy litigation) must be either resolved or brought to finality, notwithstanding any alleged or actual illness or injury.
[29] See the extract from Cann (No. 2) at para.3 above.
The Court observes that part of the reason for delay, before the Registrar, was in relation to matters concerning the service of the Bankruptcy Notice. For reasons set out by:
a)the Full Court of the Federal Court of Australia in Skalkos v T & S Recoveries Pty Ltd;[30] and
b)this Court in Official Receiver for the Bankruptcy District of WA v Amaro,[31]
the Bankruptcy Notice was properly served in this case, because, on the evidence, it was left at the last known address of Mr Cann or sent to him by electronic mail, both of which are permissible means of service under reg.16.01(c) and (e) of the Bankruptcy Regulations, which are specific regulations dealing with the service of documents (including Bankruptcy Notices) in bankruptcy matters, and which therefore prevail over the more general service provisions under the FMC Rules, and in particular rr.6.06 and 6.07.[32]
[30][31] (2009) 229 FLR 226 at 230-232 per Lucev FM; [2009] FMCA 567 at paras.19-25 per Lucev FM (also reported at (2009) 7 ABC(NS) 244 and (2009) 109 ALD 577).
[32] Goodwin v Phillips (1908) 7 CLR 1 at 14 per O’Connor J; Maybury v Plowman (1913) 16 CLR 468 at 473-474 per Barton ACJ; Hoffman v Chief of Army (2004) 137 FCR 520 at 528-532 per Black CJ, Wilcox and Gyles JJ, and at 570-572 per Lindgren J; [2004] FCAFC 148 at paras.11-27 per Black CJ, Wilcox and Gyles JJ, and at paras.214-221 and 223 per Lindgren J.
The combination of the above factors led the Court to the view that it was not appropriate, nor was it in the interests of justice or the administration of justice, that there be further delay by adjourning what was essentially a procedural step in these proceedings.
Conclusion and orders
It was for the above reasons that the Court dismissed Mr Cann’s application in a case for an adjournment of the directions hearing on 21 April 2011, and made an order accordingly (together with other procedural orders).
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Lucev FM
Date: 6 May 2011
(a) leaving it at Mr Cann’s residential property at 31 Bulimba Road in Nedlands on 28 June 2008: see affidavit of Demosthenes Georgio sworn 2 July 2010; and
(b) emailing it to Mr Cann’s email address on 4 July 2010: see affidavit of Kathleen Marie McNally sworn 20 September 2010.
(2004) 141 FCR 107 at 117 per Sundberg, Finkelstein and Hely JJ; [2004] FCAFC 321 at para.31 per Sundberg, Finkelstein and Hely JJ. See also Carantinos v Magafas [2009] FCA 627 at paras.
4-5 per Perram J.
6
9
4