COMMONWEALTH BANK OF AUSTRALIA v JORGENSEN (No.2) - [2011] FMCA 770

FEDERAL MAGISTRATES COURT OF AUSTRALIA

COMMONWEALTH BANK OF AUSTRALIA v JORGENSEN (No.2)

[2011] FMCA 770

BANKRUPTCY – Practice and procedure – adjournment application.

Applicant:

COMMONWEALTH BANK OF AUSTRALIA

Respondent:

ALAN BRADLEY JORGENSEN

File Number:

BRG 82 of 2011

Judgment of:

Jarrett FM

Hearing date:

1 July 2011

Date of Last Submission:

1 July 2011

Delivered at:

Brisbane

Delivered on:

1 July 2011

REPRESENTATION

Counsel for the Applicant:

Mr P Hay

Solicitors for the Applicant:

Matthew J Farmer

Solicitor for the Respondent:

Mr F Sanna

ORDERS

The application to set aside a bankruptcy notice be adjourned to

11 July 2011 at 10.00 a.m.
in the Federal Magistrates Court sitting in Brisbane.
The respondent or his legal representative must appear on the next court date.
The costs of 30 June, 2011 and of today are the petitioning creditor’s costs in the cause.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRG 82 of 2011

COMMONWEALTH BANK OF AUSTRALIA

Applicant

And

ALAN BRADLEY JORGENSEN

Respondent

REASONS FOR JUDGMENT

Ex tempore

This is an application for another adjournment of the proceedings presently before me. Those proceedings are a creditor’s petition and an application to set aside a bankruptcy notice. The debtor applied yesterday unsuccessfully to have the proceedings adjourned on the basis that there were proceedings on foot in the District Court of Queensland to have the judgment upon which the bankruptcy notice is based – and therefore the creditor’s petition – set aside. For the reasons I expressed yesterday, even if the default judgment is set aside an act of bankruptcy has been committed. The creditor’s petition still has a foundation, although there may be an argument ultimately that the debtor can otherwise show cause why there should not be a sequestration order made against his estate. But I saw no reason to adjourn the hearing of the application for that reason. Similarly, I saw no other reason to adjourn the hearing of the application.
The debtor argued that he needed time to properly instruct his legal advisors and take advice in respect of the applications, but I was not persuaded by that argument because the facts deposed to by the debtor indicated that he had been well aware of these proceedings for some time, had brought them to the attention of his legal advisors some time ago, and he had had ample opportunity to seek the legal advice that he wished to seek. The fact that he had chosen to instruct his lawyers to deal with the matter only very recently was a matter of his creation and nothing else.
The difficulties continued, however, for the respondent debtor. After I pronounced the refusal of the adjournment it was brought to my attention that the debtor had left the Court precincts and gone to hospital. It was said that he was ill. The matter was stood down and a letter was produced from St Andrew’s Hospital later in the afternoon.

I referred to that letter yesterday, but it indicated that there were some complaints made by the respondent to the hospital, and he was being investigated for them. The matter was stood over until 11.00am today to allow those investigations to be completed.
Today there is an affidavit from a solicitor who purports to represent the respondent, but for limited purposes. Attached to that affidavit is a letter which indicates that the respondent debtor is to undergo further investigation. He has changed hospitals – he has gone from St Andrew’s Hospital to the Mater for reasons of economy apparently.

He has “admitted himself” and he is to undergo what is described in argument as an angiogram, but it is not described as that in the affidavit material. Nonetheless, it is tolerably clear that he is to undergo an investigation at 11.15am this morning, which will take about an hour.
Yesterday I remarked that there were certain reasons to be circumspect about the respondent debtor’s position. Those reasons continue, and have been added to by the affidavit material produced this morning. Nonetheless, the position appears to be that the respondent is not here; he wishes to represent himself in this application, at least if the adjournment is refused; and the legal representative who appears on this application has a limited brief.
It might be that the legal representative who appears for the debtor has had his instructions deliberately circumscribed so as to place the Court in a difficult position. I make no finding about that, other than to remark that it is a possibility.
In determining whether to grant the adjournment that is requested – and for these purposes it seems to me that what I ought to consider is whether the matter should be adjourned for more than a few hours – it seems to me I need to weigh the possibility of the prejudice to the respondent if indeed there is some legitimate cause for him to have been concerned and for him to be investigated against the prejudice that the petitioning creditor will suffer by a further adjournment.
Yesterday, in the course of argument, Mr Hay pointed to the general public interest in having matters such as this dealt with expeditiously. A person who is insolvent and facing bankruptcy proceedings ought to have their estate administered in bankruptcy as quickly as possible for the protection of all creditors concerned. But there is precious little evidence that there are any other creditors. There is one referred to in the material and, interestingly, the debt owed to that creditor has been reduced by the debtor to an amount so that it is now insufficient to itself support bankruptcy proceedings.
The prejudice to the petitioning creditor generally speaking is one of cost. There have been a number of appearances now, not just before me. There may be another appearance. Each appearance costs money. And in my view, it is not to the point that the petitioning creditor is the Commonwealth Bank of Australia. That company, and those that run it, have obligations to those that own it to ensure that things are conducted in a way in which they are dealt with efficiently. Opposing an adjournment such as this falls, it seems to me, squarely within such a remit.
But notwithstanding those matters, the conclusion I have come to is that I ought to adjourn the proceedings. It is not a conclusion I come to easily, but it seems to me that an opportunity for the respondent to complete the investigations that he wishes to have completed in respect of his health is appropriate. The adjournment will be short. I intend to adjourn the proceedings to 10.00 am on Monday 11 July, which is in a little more than a week’s time. I cannot deal with the matter next week, but I will deal with it at the first opportunity I have, which will be 10 am on 11 July.
On the next occasion, Mr Jorgensen will have to appear, or alternatively instruct others to appear for him. I will be disinclined to listen to any further applications for an adjournment. It seems to me, on the material that I have thus far, that Mr Jorgensen’s health complaints are not serious. He was not admitted by the St Andrew’s Hospital itself, which would have occurred if there had been a serious problem indicated by any of his complaints or any of the investigations that that hospital had undertaken. Moreover, if there was anything serious involved in the complaints that Mr Jorgensen has made to the hospitals, then he would not have had to admit himself.
In those circumstances, and on present indications, I intend to proceed with the application on 11 July at 10 am, whether Mr Jorgensen is here or not.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Jarrett FM

Associate:

Date: 6 October 2011