Cann v Commonwealth Bank of Australia (No. 5)
[2011] FMCA 768
•11 October 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CANN v COMMONWEALTH BANK OF AUSTRALIA (No.5) | [2011] FMCA 768 |
| BANKRUPTCY – Application for review of sequestration order made by Registrar. |
| PRACTICE AND PROCEDURE – Application for adjournment – adjourned oral application for dismissal of review application. |
| Bankruptcy Act 1966 (Cth), ss.43, 44, 47, 52, 153B(1) Bankruptcy Regulations 1996 (Cth), reg.16.01 Federal Magistrates Act 1999 (Cth), ss.3, 42, 104 Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth), rr.4.02, 4.04, 4.05, 4.06, 7.04, 7.06 Federal Magistrates Court Rules 2001 (Cth), rr.1.03, 13.03A, 13.03B, 20.03 |
| Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Cann v Commonwealth Bank of Australia [2011] FMCA 221 Cann v Commonwealth Bank of Australia (No.2) [2011] FMCA 242 Cann v Commonwealth Bank of Australia (No.3) [2011] FMCA 303 Cann v Commonwealth Bank of Australia (No.4) [2011] FMCA 698 Fair Work Ombudsman v Kentwood Industries Pty Ltd [2010] FCA 98 Martin v Commonwealth Bank of Australia (2001) 217 ALR 634; [2001] FCA 87 O’Meara v Hitwise Pty Ltd (2007) 160 FCR 518; [2007] FCAFC 114 Pattison v Hadjimouratis (2006) FCR 226; [2006] FCAFC 153 Skalkos v T & S Recoveries Pty Ltd (2004) 141 FCR 107; [2004] FCAFC 321 Wolff v Donovan (1991) 29 FCR 480 |
| Applicant: | GAVIN MICHAEL CANN |
| Respondent: | COMMONWEALTH BANK OF AUSTRALIA |
| File Number: | PEG 2 of 2011 |
| Judgment of: | Lucev FM |
| Hearing date: | 30 September 2011 |
| Date of Last Submission: | 3 October 2011 |
| Delivered at: | Perth |
| Delivered on: | 11 October 2011 |
REPRESENTATION
| For the Applicant: | In person (by telephone link) |
| Counsel for the Respondent: | Ms K McNally |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The applicant’s application for an adjournment is dismissed.
The application is dismissed under r.13.03B(1) of the Federal Magistrates Court Rules 2001 (Cth).
As to costs, the respondent to file and serve written submissions by
25 October 2011, and the applicant to file and serve written submissions by 8 November 2011, with costs to be determined by the Court on the written submissions.
| 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
The substantive application filed on 11 January 2011 in these proceedings is for a review of a sequestration order made by a Registrar of this Court on 21 December 2010 against the estate of the applicant,[1] Gavin Michael Cann.[2] These reasons for judgment concern an application by Mr Cann for a further adjournment[3] of an adjourned interim oral application by the respondent, the Commonwealth Bank of Australia,[4] for dismissal of the Review Application.[5]
[1] “Review Application”.
[2] “Mr Cann.”
[3] “Further Adjournment Application”.
[4] “CBA”.
[5] “Dismissal Application”.
Proper consideration of the Further Adjournment Application and Dismissal Application can only occur against the background of the proceedings to date.
History of the proceedings
The history of the proceedings up until 21 April 2011 is set out in Cann v Commonwealth Bank of Australia (No 3)[6] where the Court said as follows:
[6] [2011] FMCA 303 (“Cann No 3).
Before the Registrar
12. The Creditors Petition was filed on 19 August 2010 and set down for hearing before a Registrar on 21 September 2010.
13. An affidavit of service was filed on 19 August 2010 by a vacation clerk employed by the Commonwealth Bank of Australia’s[7] solicitors who on 28 June 2010 attended at 31 Bulimba Road, Nedlands[8] where Mr Cann has a property,[9] and where the following is said to have occurred:
[7] “CBA”.
[8] “Nedlands Property”.
[9] 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.[10]
[10] Mr Georgiou’s Affidavit, paras.3-6.
14. 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.[11]
[11] Affidavit of Service of Timothy James Donisi, sworn 1 September 2010, paras.3-6 (“Mr Donisi’s Affidavit”).
15. 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.
16. 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,[12] and further as follows:
[12] 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.[13]
[13] Ms McNally’s September 2010 Affidavit, paras.4-7.
17. On 21 September 2010 the Registrar adjourned the Petition to 26 October 2010, and ordered that the applicant and respondent file any further affidavits.
18. 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”.[14]
[14] Affidavit of Kathleen Marie McNally, sworn 5 October 2010, para.2 (“Ms McNally’s October 2010 Affidavit”).
19. A copy of Mr Cann’s affidavit, including the attachment, was attached to Ms McNally’s October 2010 Affidavit.
20. 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.[15] This is of no relevance as Rules take precedent over regulations.
[15] 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, correctly in the Court’s view (see Skalkos v T & S Recoveries Pty Ltd (2004) 141 FCR 107; [2004] FCAFC 321), that the Bankruptcy Notice had been served under reg.16.01(1) by:
… [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.[16]
[16] Affidavit of Gavin Michael Cann, sworn 18 October 2010, paras.2, 3 and 5.
21. 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.
22. 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.[17] A copy of the letter was annexed to Ms Lee’s affidavit sworn on 17 December 2010, and substantively it said as follows:
[17] 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.[18]
[18] Ms Lee’s Affidavit, Annexure MLC 1.
23. 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.
24. In an affidavit sworn by Troy Joshua Greig on 20 April 2011 and filed 21 April 2011[19] in the proceedings for a review of the sequestration order, is a letter from Mr Cann[20] 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:
[19] Affidavit of Troy Joshua Greig, sworn 20 April 2011 (“Mr Greig’s April 2011 Affidavit”).
[20] 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.
25. 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.
26. 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.
27. 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
28. 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.[21] The contents of that letter and the medical certificates, which were sent to the Court but not filed, are relevantly set out above.[22]
[21] Affidavit of Gavin Michael Cann, affirmed 11 January 2011, para.1 (“Mr Cann’s January 2011 Affidavit”).
[22] See paras. 24-27 above.
29. 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.
30. 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.
31. 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.
32. 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:[23]
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.
[23] See para.2 above.
6. Otherwise, the matter is adjourned to 4.00pm on 21 April 2011 for further directions.
7. Costs in the cause.
33. 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.[24]
34. 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.[25]
[24] See Cann v Commonwealth Bank of Australia [2011] FMCA 221 in which the two interim applications were dismissed. Footnotes 6-22 above are the footnotes, differently numbered, from the quoted paragraphs of Cann (No 3).
[25] Cann (No 3) at paras.12-34 per Lucev FM.
On 21 April 2011 the Court dismissed Mr Cann’s application in a case for an adjournment of the directions hearing on 21 April 2011, [26] and made an order accordingly, together with other procedural orders, as follows:
[26] Cann (No 3) at paras.35-37 per Lucev FM.
(1) The applicant file and serve:
(a) any amended application for review; and
(b) any further affidavits,
by 20 May 2011.
(2) 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.
(3) The applicant file and serve an affidavit of compliance with Order 2 by 3 June 2011.
(4) 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).
(5) 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.
(6) 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.
(7) 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.
(8) 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.
(9) 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.
(10) There be liberty to apply generally.
(11) Costs be reserved.
The matter returned to the Court on 5 September 2011 following mediation which at first had appeared to be successful, but which ultimately did not resolve the issues. On 5 September 2011 the Court made the following orders:
(1) The applicant file and serve:
(a) an amended application for review; and
(b) any further affidavits,
by 12 September 2011.
(2) 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 19 September 2011.
(3) The applicant file and serve an affidavit of compliance with Order 2 by 26 September 2011.
(4) The respondent file and serve:
(a) notice of grounds of opposition to any amended application for review; and
(b) any further affidavits, other than affidavits required under Rules 4.05 and 4.06 of the Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth),
by 19 October 2011.
(5) Under Rule 7.04 of the Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth), the Trustee in Bankruptcy file and serve a further report on the applicant’s affairs by 17 November 2011.
(6) The respondent to:
(a) serve a copy of these Orders on the Trustee in Bankruptcy by 12 September 2011; and
(b) file and serve an affidavit of compliance with paragraph (a) of this Order by 19 September 2011.
(7) (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 1 December 2011, with each party to file and serve an outline of submissions by 24 November 2011.
(8) No further application for adjournment of these proceedings on medical grounds be entertained unless the application is supported by an affidavit of a medical practitioner annexing a report as to the reasons for adjournment, and subject to that medical practitioner attending for cross-examination by the respondent.
(9) Costs be reserved.
(10) In the event that Orders 1, 2 and 3 are not complied with, the respondent have liberty to request an urgent hearing of its adjourned oral application for dismissal, with that application to be provisionally listed at 10:15am on 30 September 2011. The liberty to apply exercisable by the respondent contacting the Associate or Deputy Associate to Federal Magistrate Lucev by electronic means, to request the formal listing of the oral application for dismissal on the aforementioned date, provided a copy of the request be forwarded simultaneously to the applicant.
The reasons for doing so are set out in Cann v Commonwealth Bank of Australia (No 4)[27] as follows:
1. In relation to the oral application for adjournment made today by Mr Cann, that application will be dismissed. Mr Cann has no standing to bring an appeal from the District Court of Western Australia[28] without the consent of the Official Trustee in Bankruptcy. Therefore, Mr Cann’s assertion that he intends to appeal on his own behalf is baseless and any such appeal either could not be accepted, or would be dismissed in any event.
2. With respect to Mr Cann’s proposed application to the State Administrative Tribunal for an order granting approval for borrowings from his mother’s trust, again that is an application which in the Court’s view, if made, ought not affect these proceedings in bankruptcy. These proceedings have now been on foot for close to nine months and have been the subject of a number of applications for adjournment by Mr Cann, which have previously been rejected.
3. There comes a time in all litigation where it is necessary for a court to undertake its fundamental task of resolving the relevant controversy. In this case, the Court has previously made orders for the hearing and determination of this matter, which were effectively put to one side when it appeared that the parties had reached an agreement in principle, which agreement has now fallen by the wayside as a consequence of Mr Cann’s asserted intention to appeal the District Court judgment.
4. Given the previous in principle agreement has now fallen by the wayside, the Court considers it is now appropriate to move on and determine the outstanding application for review and the respondent’s adjourned oral application for dismissal of the review. The Court observes that this application has been beset at almost every turn by applications for adjournment and in particular, applications for adjournment by Mr Cann.
5. In the circumstances, the Court, in addition to the usual orders, will make an order that no further application for adjournment of these proceedings be entertained, unless the application for adjournment is sought on medical grounds and is supported by an affidavit of a medical practitioner, annexing a report as to the reasons for adjournment, and subject to that medical practitioner attending court for cross-examination by the respondent.
6. The Court will also make an order that in the event that Orders 1, 2 and 3 are not complied with, the respondent have liberty to request an urgent hearing of its adjourned oral application for dismissal, with that application to be provisionally listed at 10:15am on 30 September 2011. The liberty to apply to be exercisable by the respondent contacting the Associate or Deputy Associate to Federal Magistrate Lucev by electronic means, to request the formal listing of the adjourned oral application for dismissal on the aforementioned date, provided that a copy of the request be forwarded simultaneously to the applicant.[29]
[27] [2011] FMCA 698 (“Cann (No 4)”).
[28] “District Court”.
[29] Cann (No 4) at paras.1-6 per Lucev FM.
The Reasons for Judgment in Cann (No 4) were delivered orally ex tempore, and in addition the orders of the Court were read out separately at the conclusion of the delivery of the oral, ex tempore Reasons for Judgment. In accordance with the usual practice in this Court’s Perth Registry the orders were also prepared by the Court, signed by the presiding Federal Magistrate, sealed and sent to the parties.
The hearing on 30 September 2011
When the matter was ready to be called on 30 September 2011 Mr Cann was apparently not in Court. Contact was then apparently made with him by telephone, and when appearances were taken, he appeared by telephone link, but objected to doing so. That objection was based on assertions that he had:
a)no notice of the 30 September 2011 hearing; and
b)a medical certificate which he had in his possession and which he told the Court indicated that he could not attend meetings until the end of October 2011.
Mr Cann therefore sought an adjournment of the matter until he was medically able to attend.[30]
[30] Transcript, 30 September 2011, page 2.
Ms McNally, who appeared for the CBA, referred to two emails sent to Mr Cann on 27 and 30 September 2011, which indicated that the matter was listed for hearing on 30 September 2011.[31] Ms McNally undertook to file an affidavit annexing the two emails following the hearing.
Mr Cann asserted that he may still have had no notice of the hearing because he did not necessarily read emails from Ms McNally.[32]
[31] Transcript, 30 September 2011, page 3.
[32] Transcript, 30 September 2011, page 3.
The Court refused the application for adjournment of the Dismissal Application, and indicated that it would deliver Reasons for Judgment on the Further Adjournment Application at a later date. Those Reasons for Judgment appear below.
The Court proceeded to hear submissions on behalf of the CBA and from Mr Cann in relation to the Dismissal Application, and reserved judgment on the Dismissal Application. The Reasons for Judgment in relation to the Dismissal Application appear below.
Ms McNally’s affidavit of 3 October 2011
An affidavit of Kathleen Marie McNally, sworn 3 October 2011[33] sets out the relevant events in relation to the liberty to apply under order 10 of the 5 September 2011 Orders.
[33] “Ms McNally’s 3 October 2011 Affidavit”.
Ms McNally’s 3 October 2011 Affidavit refers to:
a)
an email to Ms McNally and Mr Cann from the Court on
5 September 2011, which attaches an electronic copy of the sealed orders of 5 September 2011, and indicates that the matter is listed for hearing on 1 December 2011, and “provisionally listed at 10.15am on 30 September 2011 pursuant to order 10”;[34]
b)Ms McNally’s email of 27 September 2011 to Mr Cann the first line of which reads:
“I refer to the special appointment listed for 10.15am this Friday, 30 September 2011”
and which goes on to indicate that the CBA would seek orders that the Review Application be dismissed “on Friday” and that if Mr Cann did not intend to appear personally “on Friday” that he should organise for a legal representative to appear on his behalf;[35]
c)Ms McNally’s further email of 27 September 2011, which was copied to Mr Cann, and which requests the formal listing of the Dismissal Application, pursuant to order 10 of the 5 September 2011 orders;[36]
d)a copy of an email dated 29 September 2011 from the Court to Ms McNally, copied to Mr Cann, confirming the listing of the matter at 10.15am on Friday 30 September 2011; and[37]
e)a copy of an email dated 29 September 2011 from Ms McNally to the Court, copied to Mr Cann, attaching short submissions, in respect of the Dismissal Application.[38]
Consideration of Further Adjournment Application
[34] Ms McNally’s 3 October 2011 Affidavit, Annexure KMM1. Order 10 is set out at para.5 above.
[35] Ms McNally’s 3 October 2011 Affidavit, Annexure KMM2.
[36] Ms McNally’s 3 October 2011 Affidavit, Annexure KMM3.
[37] Ms McNally’s 3 October 2011 Affidavit, Annexure KMM4.
[38] Ms McNally’s 3 October 2011 Affidavit, Annexure KMM4.
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)[39] and the Federal Magistrates Court Rules 2001 (Cth),[40] as prescribed by the objects of the FM Act[41] and the objects of the FMC Rules,[42] 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. [43]
[39] “FM Act”.
[40] “FMC Rules”.
[41] FM Act, ss.3 and 42.
[42] FMC Rules, r.1.03.
[43] 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).
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.[44]
[44] 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.
Adjournment – consideration
As indicated above, the Further Adjournment Application is based upon assertions by Mr Cann that he had:
a)no notice of the 30 September 2011 hearing; and
b)a medical certificate which indicated that he could not attend meetings until the end of October 2011.
Notice of 30 September 2011 hearing
Having regard to:
a)
the Court’s email dated 29 September 2011 copied to Mr Cann confirming the listing of the matter at 10.15am on Friday
30 September 2011;
b)Ms McNally’s emails of 27 September 2011 which expressly refer to the hearing on 30 September 2011;
c)
the terms of order 10 of the Court’s orders of 5 September 2011, which clearly indicate that there will be a hearing on
30 September 2011 in the event that Mr Cann fails to comply with orders 1, 2 and 3 of the Court’s orders of 5 September 2011; and
d)
Mr Cann’s failure to comply with orders 1 and 3 of the Court’s orders of 5 September 2011, which triggered the hearing on
30 September 2011 under the terms of order 10 of the Court’s orders of 5 September 2011,
there is no doubt in the Court’s view that Mr Cann had both actual and constructive knowledge of the hearing of this matter listed for 10.15am on 30 September 2011.
This ground for adjournment therefore fails.
Medical grounds
Order 8 of the Court’s orders of 5 September 2011 provides that no further application for adjournment of these proceedings on medical grounds is to be entertained unless the application is supported by a medical practitioner’s affidavit annexing a report as to the reasons for adjournment, and subject to that medical practitioner attending for cross-examination. That order was made having regard to the history of the proceedings, the necessity for the Court to “undertake its fundamental task of resolving the relevant controversy”,[45] and because there had been previous unsuccessful applications for adjournment of the proceedings on the basis of illness which were not supported by the, or any, medical evidence.[46] The Court especially notes what it said in Cann (No 3):
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.[47]
[45] Cann (No 4) at para.3 per Lucev FM.
[46] Cann (No 3) at paras.5-7, 22-28 and 35(b) and (d)(iii) per Lucev FM.
[47] Cann (No 3) at para.35 (d)(iii) per Lucev FM.
The Court notes that Mr Cann’s alleged illness on 30 September 2011 did not prevent him making submissions to the Court over the telephone, seemingly without difficulty and in a logical and coherent manner. Furthermore, Mr Cann’s submitted that he had:
a)a State Administrative Tribunal action pending, which does not yet have a hearing date; and
b)a District Court of Western Australia appeal related to the default judgment, which lies behind the bankruptcy, listed on 12 and 13 October 2011,
and he therefore “recommended” that “we could wait until the end of October to see how these other matters pan out and have the matter reviewed then”.[48] As Mr Cann represents himself in those matters it is not immediately apparent how it might be that those matters might be advanced if he is unable to attend hearings in the State Administrative Tribunal or the District Court of Western Australia by reason of his alleged illness. That course would inevitably entail further delay, and given the present state of the listings in the Perth Registry of this Court in any hearing of the Dismissal Application would be delayed until at least April 2012.
[48] Transcript, 30 September 2011, page 6.
Given the Court’s findings that Mr Cann had actual or constructive knowledge of the hearing on 30 September 2011, it is evident that Mr Cann has, notwithstanding his apparently obtaining a medical certificate, failed to take any steps to comply with order 8 of the Court’s orders of 5 September 2011. Given the history of the matter, and in the absence of an affidavit annexing a medical report which gives some indication as to the nature of Mr Cann’s alleged illness, and why it precludes him from attending Court, the Court has no proper basis on which to grant the Further Adjournment Application on medical grounds.
Having regard to the abovementioned factors there is no basis in the Court’s view on which to adjourn the Dismissal Application on medical grounds. This ground for adjournment therefore fails.
Adjournment – outcome
As both of the grounds put in support of the Further Adjournment Application have been unsuccessful, it follows that the Further Adjournment Application must be dismissed, and there will be an order accordingly.
Dismissal Application
The Dismissal Application must be considered against the backdrop of the principles relating to the practice and procedure on a review application, and the grounds for review.
Practice and procedure on review
Under s.104(2) of the FM Act the Registrar’s exercise of power to issue the sequestration order may be the subject of an application for review. Under s.104(3) of the FM Act this Court “may make any order or orders it thinks fit in relation to” the Registrar’s exercise of power in issuing the sequestration order.
On an application for a review of a Registrar’s decision, the Court:
a)is engaged in a fresh proceeding;
b)does not scrutinise the original reasons to ascertain error;
c)makes its own decision on the merits of the case; and
d)in applications for review of a sequestration order, where a sequestration order is still sought, the petitioning creditor is required to prove all necessary matters, including those specified in s.52(1) of the Bankruptcy Act 1966 (Cth).[49]
[49] “Bankruptcy Act”;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 (“Hadjimouratis”); O’Meara v Hitwise Pty Ltd (2007) 160 FCR 518 at 521 per Kiefel, Sundberg and Gyles JJ; [2007] FCAFC 114 at para.9 per Kiefel, Sundberg and Gyles JJ (“Hitwise”).
The review proceeds by way of a hearing de novo,[50] and the Court may receive as evidence any affidavit or exhibit tendered before a Registrar, and may, with leave, receive further evidence.[51] It is open to the Court to make an order for annulment of bankruptcy[52] when reviewing a sequestration order.[53]
[50] Hadjimouratis FCR at 230-231 per Nicholson J and 237 per Jacobson J; FCAFC at paras.10-11 per Nicholson J and para.59 per Jacobson J.
[51] FMC Rules, r.20.03(a)-(c).
[52] Bankruptcy Act, s.153B(1).
[53] Hadjimouratis FCR at 230-231 per Nicholson J and 237 per Jacobson J; FCAFC at paras.10-11 per Nicholson J and para.63 per Jacobson J.
Because the application is a fresh proceeding, albeit by way of review, the respondent (as petitioning creditor) must prove all matters necessary for the making of a sequestration order.[54] Fresh affidavits of search and debt must be filed on an application for review, unless an order waiving compliance has been issued.[55] The Court may make a sequestration order upon proof of the matters set out in s.52(1) of the Bankruptcy Act, subject to the jurisdiction to make sequestration orders under s.43 of the Bankruptcy Act and the conditions on which a creditor may petition under s.44 of the Bankruptcy Act being met.
As petitioning creditor, the respondent has put before the Court the relevant affidavits of verification, search, service and debt, to prove the bankruptcy. [56]
[54] Hadjimouratis FCR at 235 per Jacobson J and 251-252 per Lander J; FCAFC at para.43 per Jacobson J and para.156 per Lander J; Hitwise FCR at 521 per Kiefel, Sundberg and Gyles JJ; FCAFC at para.9 per Kiefel, Sundberg and Gyles JJ.
[55] Martin v Commonwealth Bank of Australia (2001) 217 ALR 634; [2001] FCA 87.
[56] Bankruptcy Act, s.47(1); FMC (Bankruptcy) Rules, rr.4.02, 4.04 and 4.06; Affidavit of Wai See Catherine Cheng Verifying Creditors Petition, sworn 2 August 2011, para.3 (“Ms Cheng’s Petition Affidavit”); Mr Georgiou’s Affidavit, paras.3-6; Mr Donisi’s Affidavit, paras.3-6; Affidavit of Nicole Schaillee, sworn 2 August 2011; Affidavit of Wai See Catherine Cheng of Debt Still Owing, sworn 2 August 2011, para.3 (“Ms Cheng’s Debt Affidavit”).
The Court has jurisdiction to go behind the judgment giving rise to a debt to determine if the debt really is owed, with the onus being on the debtor, in this case Mr Cann, to demonstrate that there exists a reason for questioning the debt.[57]
[57] Wolff v Donovan (1991) 29 FCR 480 at 481 per Davies J and 485-487 per Lee and Hill JJ.
Review Application – grounds and evidence
The bases for the Review Application were fully set out in Cann v Commonwealth Bank of Australia (No 2). [58] There are two bases for the application for review:
a)an allegation that, essentially, the Registrar ignored relevant evidence and submissions concerning the effect of Mr Cann’s medical condition on his ability to appear before the Registrar on the date the sequestration order was issued; and
b)an assertion that a default judgment made in the District Court of Western Australia[59] on 17 March 2010 ought to have been set aside.
[58] [2011] FMCA 242 (“Cann (No 2)”)
[59] “District Court”.
The gist of the first basis is contained in paragraph 1 of Mr Cann’s January 2011 Affidavit:
“I was unable to attend the Federal Magistrates Court on 21 December [2010] to put my case due to ill health. I filed a medical certificate and letter requesting an adjournment. This was not granted and a sequestration order and costs order were made against me.”[60]
[60] Mr Cann’s 11 January 2011 Affidavit, para.1 (‘Mr Cann’s January 2011 Affidavit”).
In relation to the second basis regarding the District Court default judgment, Mr Cann said in Mr Cann’s January 2011 Affidavit that:
a)he had successfully applied to have the default judgment set aside on two occasions, subject, ultimately, to him paying $65,000 as security into the Court; but that he submitted a personal guarantee which was not accepted by CBA’s solicitors;[61] and
b)he had access to $200,000, as following the death of his step-father he is the final beneficiary of a trust,[62] and that before the end of February 2011 he was to access the $200,000 and make a payment into the District Court of $65,000 as previously required, and would then again apply for the default judgment against him to be set aside.[63]
[61] Mr Cann’s January 2011 Affidavit, para.4.
[62] “Trust”.
[63] Mr Cann’s January 2011 Affidavit, paras.5 and 8.
In an affidavit by Mr Cann sworn on 5 December 2010[64] in District Court proceedings related to the default judgment, it is indicated that Mr Cann is a joint signatory to the Trust account, which has a balance of in excess of $206,000, but that the other signatory was overseas and was unable to sign at that time, but that “it should be sorted by
15 January 2011”.[65]
[64] “Mr Cann’s December 2010 Affidavit” which is attached to an affidavit of Mr Greig, sworn 3 February 2011 (“Mr Greig’s February 2011 Affidavit”).
[65] Mr Cann’s December 2010 Affidavit, para.8.
In the sequestration order proceedings before the Registrar, an affidavit was filed on behalf of CBA after the sequestration order was made, so as to comply with a direction from the Registrar as to the status of the District Court proceedings. In that regard, Mr Greig’s 23 December 2010 Affidavit[66] provides as follows:
[66] “Mr Greig’s December 2010 Affidavit”.
2.I swear this affidavit in compliance with Registrar Jan’s direction on 21 December 2010, that the Applicant file an affidavit confirming that the default judgment dated 17 March 2010 (Default Judgment) made in District Court of Western Australia action No. 2915 of 2009 (District Court Proceeding) has not been stayed or overturned.
District Court, 28 July 2010
3.I refer to the orders of Principal Registrar Gething made on 28 July 2010 in the District Court Proceeding which relevantly provided:
“1.if by 17 August 2010 the defendant either:
a.pays the sum of $100,000 into Court; or
b.provides security sufficient to meet a judgment in the amount of $100,000 to the satisfaction of the plaintiff,
the [Default Judgment] be set aside;
2.if the judgment is not set aside pursuant to paragraph 1, the application filed 3 May 2010 be dismissed with the defendant to pay the plaintiff’s costs of the application to be taxed.”
4.Attached hereto and marked “TJG1” is a true copy of the orders (July Order).
District Court, 27 October 2010
5.Mr Cann did not provide security by 17 August 2010, or at all.
6.On or about 9 September 2010, Mr Cann filed a Notice of Appeal regarding the July Order.
7.On 27 October 2010, Justice Stone made orders, inter alia:
“2.Order 1 of the Order be varied such that if by 10 December 2010, Mr Cann:
(i) pays the sum of $65,000 into Court; or
(ii) provides security sufficient to meet the judgment debt in the sum of $65,000 to the satisfaction of the Bank,
the [Default Judgment] be set aside.
3.If the [Default Judgment] is not set aside pursuant to order 2, Mr Cann’s Chamber Summons be dismissed with Mr Cann to pay the Bank’s costs of the Chamber Summons to be taxed.
5.Execution of the [Default Judgment] be stayed until 10 December 2010.”
(October Order).
District Court, 13 December 2010
8.On or about 7 December 2010, Mr Cann filed a Chamber Summons seeking an extension of time to comply with the October Order from 10 December 2010 to 10 January 2011. Attached hereto and marked “TJG2” is a true copy of the Chamber Summons.
9.On 13 December 2010, I attended before Deputy Registrar Harman at the return date of this Chamber Summons. Deputy Registrar Harman said words to the effect that the Chamber Summons was dismissed and in relation to the Default Judgment:
“no orders are necessary with respect to setting aside the default judgment as Mr Cann failed to comply with order 3 of Justice Stone’s orders of 27 October 2010, being the payment of or the provision of security for $65,000 by the 10 December 2010. In effect, Mr Cann’s appeal application is dismissed and there is no stay on the default judgment”.
In Cann (No 2) the Court observed that:
a)there was no evidence that Mr Cann’s medical condition affected him on the day the sequestration order issued, as noted in the Registrar’s reasons for decision; and, indeed, Mr Cann apparently hand-delivered the letter and medical certificate to the Registry shortly before the hearing;
b)information in Mr Cann’s January 2011 affidavit concerning payments out of the Trust account was irrelevant to any issue of whether or not the District Court should set aside default judgment, as there was no evidence that there was an extant application before the District Court to set aside default judgment; and
c)the District Court default judgment was in the amount of $100,000, plus interest of $6,621 and costs to be taxed.[67]
[67] Cann (No 2) at para.17 per Lucev FM.
Mr Cann has filed no affidavit in these proceedings since 8 April 2011, and no affidavit which deals with the status of the District Court default judgment since Mr Cann’s January 2011 affidavit.
On the evidence before this Court the position with respect to the District Court default judgment therefore remains as set out above: that there is no stay on the default judgment and under the default judgment Mr Cann owes CBA $106,621 plus costs to be taxed.[68]
Dismissal Application– consideration
[68] “Judgment Debt”.
FMC Rules
Rule 13.03A(1)(a) and (b) of the FMC Rules reads as follows:
(1) For rule 13.03B, an applicant is in default if the applicant fails to:
(a) comply with an order of the Court in the proceeding; or
(b) file and serve a document required under these Rules;
Rule 13.03B(1) of the FMC Rules provides as follows:
(1) If an applicant is in default, the Court may order that:
(a) the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the applicant; or
(b) a step in the proceeding be taken within the time limited in the order; or
(c) if the applicant does not take a step in the time mentioned in paragraph (b) -- the proceeding be stayed or dismissed, as to the whole or any part of the relief claimed by the applicant.
Failure to comply with an order of the Court allows the Court, in the exercise of its discretion, to dismiss the Review Application in whole or part, by reason of rr.13.03A(1) and 13.03B(1) of the FMC Rules. The power is a discretionary one which must be exercised cautiously.
The question therefore arises as to whether the discretion ought to be exercised to dismiss the application. In determining whether and how to exercise the discretion the Court has had regard to a number of factors set out hereunder.
First, there is no basis for impugning the District Court default judgment which underpins the sequestration order. On the evidence as it presently stands the default judgment has not been set aside, and there is no evidence before this Court of an application to set it aside, or of any approval of the Trustee to allow Mr Cann to make an application to set it aside.
Second, 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 the medical certificate relates only to 20 December 2010, it is now irrelevant. That is because on a review application this Court must ordinarily consider afresh whether a sequestration order ought to issue.
Third, despite ample opportunity having been provided to Mr Cann to do so, there is:
a)no evidence that any payments have been made from the Trust; and
b)no application, or amended application for review, or otherwise, for the sequestration order to be annulled on the basis that Mr Cann is solvent on account of his access to the Trust funds, or any other funds.
Fourth, given the opportunity afforded to Mr Cann to:
a)get his application for review in proper order; and
b)serve creditors with proper notice of the review, and file and serve an affidavit of compliance, which has not been done,
there is arguably no unfair prejudice to Mr Cann if the application were to be dismissed on the basis of default because any prejudice would be a consequence of circumstances of Mr Cann’s own making.
Fifth, there is ongoing prejudice to the CBA by reason of the CBA having to deal with these proceedings, with the attendant costs and inconvenience, in circumstances where CBA have already obtained:
a)default judgment in the District Court; and
b)a sequestration order from a Registrar of this Court,
and where:
c)the evidence does not indicate that there is presently an application to set aside the default judgment, or any prospect of it being set aside; and
d)Mr Cann has not complied with this Court’s Orders (as detailed below) so as to enable issue to properly be joined with the CBA, and other creditors, if there are any.
Sixth, Mr Cann’s non-compliance with the Court’s Orders, and specifically:
a)Order 1(b) of the Court’s 7 February 2011 Orders, requiring that Mr Cann give notice to all creditors, as required by r.7.06 of the FMC (Bankruptcy) Rules, by 21 February 2011;
b)Order 2 of the Court’s 7 February 2011 Orders, requiring that Mr Cann file and serve an affidavit of compliance with Order 1 by 28 February 2011;
c)Order 1 of the Court’s 4 March 2011 Orders, which extended the time for compliance with Order 2 of the Court’s 7 February 2011 Orders to 18 March 2011;
d)Orders 1 and 3 of the Court’s 21 April 2011 Orders, requiring Mr Cann to file and serve any amended application for review and any further affidavits by 20 May 2011 and file and serve any affidavit of compliance by 3 June 2011;
e)Orders 1 and 3 of the Court’s 5 September 2011 Orders, requiring Mr Cann to file and serve any amended application for review and any further affidavits by 12 September 2011 and file and serve any an affidavit of compliance by 26 September 2011.
Seventh, the paucity of evidence put on by Mr Cann, despite his being giving ample opportunity to amend his application and to put on further evidence, provides no basis on which the Court could conclude that there is even an arguable case for setting aside the default judgment, or that Mr Cann is solvent.
Finally, the Court notes that the Trustee’s report to the Court indicates that no Statement of Affairs has been filed by Mr Cann.
There is no doubt that Mr Cann is in default for the purposes of r.13.03A(1) of the FMC Rules as a consequence of his non-compliance with the Court’s various orders over an extended period of time. In the Court’s view, the matters set out above provide, in the context of the non-compliance with the Court’s various orders over an extended period of time, a compelling case for the exercise of the discretion under r.13.03B(1) of the FMC Rules to dismiss the Review Application un
Dismissal – outcome
For the reasons set out above the Dismissal Application is upheld, and the Review Application will be dismissed under r.13.03B(1) of the FMC Rules.
Conclusions
The Court has concluded that:
a)the Further Adjournment Application will be dismissed;
b)the Review Application will be dismissed under r.13.03B(1) of the FMC Rules.
There will be orders accordingly.
Costs
Costs will be determined on the papers, with the CBA to file written submissions by 25 October 2011, and Mr Cann to file written submissions by 8 November 2011, the submissions to deal with liability for costs and quantum of costs (including on what scale or basis costs ought to be awarded).
There will be an order accordingly.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate:
Date: 11 October 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.
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