Corrigan v Owens (No.3)

[2008] FMCA 1385

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CORRIGAN v OWENS (No.3) [2008] FMCA 1385

BANKRUPTCY – Interim consideration of stay or dismissal of proceedings – matter adjourned.

Applicant: SUZANN OWENS

Respondent: DAVID LOFTHOUSE

File Number: MLG 1436 of 2004

Judgment of: Burchardt FM

Hearing date: 19 September 2008

Date of Last Submission: 19 September 2008

Delivered at: Melbourne

Delivered on: 19 September 2008

REPRESENTATION

The Applicant: In Person

Counsel for the Respondent: Mr A. Dunhill

Solicitors for the Respondent: Aitken, Walker & Strachan

ORDERS

1. The proceedings be adjourned to 27 October 2008 at 9.30 am. 

2. Costs be reserved. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1436 of 2004

SUZANN OWENS

Applicant

And

DAVID LOFTHOUSE

Respondent

REASONS FOR JUDGMENT

1. I am not sure that you were here last time Mr Dunhill.  I will explain how it is that this hearing today arises.  On the last occasion that the parties were present, Ms Owens informed me that her state of health was such that she was not in a position herself to conduct these proceedings in person and that she did not have the capacity to obtain legal representation, for understandable reasons of costs. 

2. There are a number of applications still on foot, which I understand are listed in October.  In those most unfortunate circumstances, it struck me that there ought be a hearing about the issue as to whether or not proceedings should be stayed pending Ms Owens' health improving to a point where she could conduct the proceedings or whether she might be the subject of an application for a litigation guardian, and that is the issue which as far as I am concerned is before me today and for those reasons. 

DISCUSSION

1. What I am minded to do is to adjourn this, as counsel concedes, to 27 October but I will indicate now that unless on that date there is either a properly retained legal representative present or unless Ms Owens attends and tells me that she is able to represent herself in full in the proceedings, then I do not see that it is in anybody's interests, including Ms Owens', given the circumstances she is in. 

2. Directions are designed to produce trials, so unless the things Ms Owens has described have come to some sort of fruition on that date, I will indicate now that I would be minded thereupon to stay all proceedings or dismiss them, as the case may be, pending there is Full Court authority to the effect that in these circumstances it should not be stayed but dismissed, and I will consider that beforehand. 

3. But unless Ms Owens is in a position to proceed in an orderly way to the disposition of such matters as are then extant then I will not be spending more of the community's time and money in terms of sitting time or Ms Owens' time or the Respondent's time. 

DISCUSSION

1. It sounds as though the issues in respect of Ms Owens' health and more particularly the issues in respect of legal representation may have become clearer and, if I may say so, I would only hope to Ms Owens' advantage by that date, and that is without expressing any views whatever on the application that is due to be heard on 27 October, which I may say I am only aware of at this stage in the most general unparticularised way, because I have not worked through it all. 

2. All I will do for the moment is adjourn the directions hearing to 27 October 2008.  I will reserve costs. 

3. But the parties can be rest assured I will not have forgotten this matter in the meantime and I will proceed in light of the sort of indications I have given. 

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Associate:  Brooke Evans

Date:  19 September 2008