Deputy Commissioner of Taxation v Cutts (No.2)
[2017] FCCA 2480
•16 October 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DEPUTY COMMISSIONER OF TAXATION v CUTTS (No.2) | [2017] FCCA 2480 |
| Catchwords: PRACTICE AND PROCEDURE – Whether compliance with orders requiring filing of an application in case for an adjournment on medical grounds to be supported by an affidavit annexing expert medical reports. |
| Legislation: Bankruptcy Act 1966 (Cth), s.52 Federal Circuit Court of Australia Act 1999 (Cth), ss.3, 42, 66, 67, 68, 104 |
| Cases cited: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14 Bryant v Commonwealth Bank of Australia & Anor (1996) 90 LGERA 126 Deputy Commissioner of Taxation v Cutts [2017] FCCA 1760 Deputy Commissioner of Taxation v Nugawela [2017] FCCA 1289 Myers v Myers [1969] WAR 19 Sandeep v Minister for Immigration & Anor [2016] FCCA 3339 Totev v Sfar & Anor [2008] FCAFC 35; (2008) 167 FCR 193; (2008) 247 ALR 180; (2008) 5 ABC(NS) 691 |
| Applicant: | DEPUTY COMMISSIONER OF TAXATION |
| Respondent: | MAURICE JAMES CUTTS |
| File Number: | PEG 47 of 2016 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 11 October 2017 |
| Date of Last Submission: | 11 October 2017 |
| Delivered at: | Perth |
| Delivered on: | 16 October 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr T de Bes |
| Solicitors for the Applicant: | Australian Government Solicitor |
| For the Respondent: | No appearance |
ORDERS (as made on 11 October 2017)
In accordance with order 2 of the Courts orders dated 3 August 2017, the matter proceed to final hearing on 16 October 2017 at 10.15am.
Reasons for judgement in relation to this decision will be published on 16 October 2017 at 10.15am.
Costs be reserved.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 47 of 2016
| DEPUTY COMMISSIONER OF TAXATION |
Applicant
And
| MAURICE JAMES CUTTS |
Respondent
REASONS FOR JUDGMENT
Introduction
In these proceedings, the respondent, Maurice James Cutts (“Mr Cutts”) seeks a review of a decision by a Registrar of this Court under s.52 of the Bankruptcy Act 1966 (Cth) (“Bankruptcy Act”) to make a sequestration order against Mr Cutts’ estate (“Cutts Sequestration Order”). The application for review is made under s.104 of the Federal Circuit Court of Australia Act 1999 (Cth) (“FCCA Act”) (“Review Application”). The Review Application is opposed by the applicant, the Deputy Commissioner of Taxation (“Deputy Commissioner”).
The matter has somewhat lengthy history which is set out at [7]-[18] below.
On 11 October 2017 the Court made the following orders:
1. In accordance with order 2 of the Courts orders dated 3 August 2017, the matter proceed to final hearing on 16 October 2017 at 10.15am.
2. Reasons for judgement in relation to this decision will be published on 16 October 2017 at 10.15am.
3. Costs be reserved.
The following are the Reasons for Judgment in relation to the orders made on 11 August 2017.
Orders made on 3 August 2017
On 3 August 2017 the Court made the following orders:
1. The applicant’s application for default judgment on the respondent’s application to review the decision of a Registrar made on 13 September 2016 to make a sequestration order against the respondent’s estate be dismissed.
2. The final hearing listed for 10.15am on 8 August 2017 be adjourned to 10.15am on 16 October 2017 and in relation to the final hearing the applicant file and serve any other affidavits required to be filed under the Bankruptcy Act 1966 (Cth) and the Federal Circuit Court (Bankruptcy) Rules 2006 (Cth) by the times required by that Act and those Rules.
3. Outlines of submissions be filed and served by:
a) the applicant by 3 September 2017; and
b) the respondent by 27 September 2017.
4. There be liberty to apply, provided that any application for adjournment of the final hearing:
a) be made by no later than 2 October 2017;
b) must be made by way of an application in a case supported by an affidavit or affidavits;
c) be provisionally listed for hearing at 10.15am on 11 October 2017; and
d) if made on medical grounds:
(i) be supported by an affidavit or affidavits of a medical practitioner or medical practitioners annexing a report or reports as to the medical grounds for adjournment, such report or reports to be in the form of an expert’s report and in a form which complies with the requirements of the Expert Evidence Practice Note issued by the Federal Court of Australia on 25 October 2016; and
(ii) admission of any affidavit or affidavits or report or reports referred to in placita (i) above be subject to the deponent of any affidavit and the author of any report being made available for cross-examination by the applicant at the time provisionally listed for the hearing of any adjournment application at 10.15am on 11 October 2017, if the applicant requires them to attend for cross-examination.
5. No order as to costs of the dismissed application in order 1.
(“3 August 2017 Orders”).
Litigation history to 3 August 2017
The relevant litigation history up until the making of the 3 August 2017 Orders was set out in Deputy Commissioner of Taxation v Cutts [2017] FCCA 1760 (“Cutts (No 1)”), in which the Court dismissed an application by the Deputy Commissioner for default judgment by reason of alleged non-compliance by Mr Cutts with an earlier order of the Court.
The litigation history as set out in Cutts (No 1) at [2]-[21] and [23] per Judge Lucev has some relevance to how the Court should now proceed, and is therefore set out hereunder:
2. A Creditor’s Petition was filed in this matter on 2 February 2016, supported by the usual affidavits. When the matter came before a Registrar on 8 March 2016 it was adjourned to 29 March 2016. On 29 March 2016 procedural orders were made in relation to:
a) Mr Cutts’ Notice of Opposition and affidavit;
b) the filing and serving of an answering affidavit by the Deputy Commissioner; and
c) Mr Cutts’ filing of any further answering written submissions,
and the Creditor’s Petition was adjourned to 2 May 2016.
3. On each of 2 and 16 May and 13 June 2016 a Registrar adjourned the Creditor’s Petition to a later date.
4. On 27 June 2016 the Creditor’s Petition was adjourned to 2 August 2016, and the Registrar made an order that any request by Mr Cutts for further adjournment of the matter be supported by affidavit to be filed by 28 July 2016.
5. Mr Cutts filed an affidavit on 1 August 2016, sworn that day (“Mr Cutts’ August 2016 Affidavit”), which was in slightly unusual terms, but which averred that:
a) a debt owing to him would be repaid at 100 cents in the dollar;
b) he sought one “final adjournment” so that he could “finalise matters and payment”;
c) he also sought “one final adjournment” because he was “currently not in the best of health or wellbeing” and enclosed a medical certificate from a local doctor recommending an adjournment for a further two weeks;
d) a medical certificate from a Dr Seton dated 28 July 2016 certified having seen Mr Cutts that day, and said of Mr Cutts as follows:
He has had a very stressful time of late and tells me he has a court date for the 2 August 2016.
In order to better prepare himself and emotionally stabilize himself, I believe it to be in his best interest to have an adjournment of this care [case] until later in August.
e) on 28 July 2016 Mr Cutts sent a letter to the relevant Registrar seeking an adjournment “on medical grounds” for 14 days; and
f) the Deputy Commissioner’s lawyers advised Mr Cutts that they opposed the adjournment request and sought to proceed with seeking a Sequestration Order with costs at the hearing on 2 August 2016.
6. On 2 August 2016 a Registrar adjourned the Creditor’s Petition to 13 September 2016 and made an order that Mr Cutts file and serve an affidavit of solvency on or before 12 September 2016.
7. On 9 September 2016 Mr Cutts filed a further affidavit, sworn the same day (“Mr Cutts’ September 2016 Affidavit”), giving his occupation as “gentleman”, and annexing what was described as a “special affidavit” (“Mr Cutts’ Special September 2016 Affidavit”). Mr Cutts’ September 2016 Affidavit again averred that pursuant to a private arrangement with, and a schedule of assets provided by, a Mr Williams, which Mr Cutts said he was unable to disclose because of a confidential commercial arrangement, funds in excess of $3million would be available to apply to any proven debt. There was also an assertion that by reason of alleged inaction on the part of the Deputy Commissioner there had been an acceptance of, or acquiescence in, to certain terms put forward by Mr Cutts. Given the limited basis upon which the Deputy Commissioner has applied for default judgment it is unnecessary in these Reasons for Judgment to say anything about the admissibility or merit of the content of Mr Cutts’ August 2016, September 2016 and Special September 2016 Affidavits.
8. On 13 September 2016 a Registrar made the Cutts Sequestration Order, and an order that the costs of the Deputy Commissioner be paid from the bankrupt estate of Mr Cutts, and noted that the date of the act of bankruptcy was 21 September 2015.
9. On 4 October 2016 Mr Cutts filed an application for review of the Sequestration Order issued by the Registrar on 13 September 2016 (“Review Application”). The sole order sought by the Review Application is as follows:
1. That all the ORDERS be set aside, until the applicant has sought available, lawful rights.
(Emphasis in original).
10. It appears that the applicant referred to in the order sought in the Review Application is Mr Cutts, and Mr Cutts has signed the Review Application as the applicant. For the purposes of these proceedings he however remains the respondent to the application before the Court by the Deputy Commissioner, an order in which, namely the Cutts Sequestration Order, Mr Cutts now seeks to have reviewed by the Court.
11. By a consent order dated 18 October 2016 a hearing of the Review Application scheduled for that date was adjourned to 4 November 2016.
12. On 4 November 2016, despite having filed the usual affidavits in a sequestration order application prior to that date, the Deputy Commissioner sought, and an order was made, adjourning the matter to 6 December 2016.
13. On 6 December 2016 the Deputy Commissioner indicated that there was agreement to having the matter adjourned, and the matter was then adjourned to a directions hearing on 3 March 2017.
14. On 3 March 2017 the Court made orders in the following terms:
1. Both parties have leave to rely at the hearing of the application for review on any affidavit or materials already filed, subject to any objections by any other party.
2. The respondent, Maurice James Cutts, file and serve any:
a. amended application for review including the grounds of review; and
b. further affidavits in support of the application for review,
by 3 May 2017
3. The applicant, the Deputy Commissioner of Taxation, file and serve:
a. any affidavits in opposition to the application for review by 3 June 2017; and
b. any other affidavits required to be filed under the provisions of the Bankruptcy Act 1966 (Cth) and the Federal Circuit Court (Bankruptcy) Rules 2016 (Cth) by the time required by that Act and those Rules.
4. Outlines of submissions are to be filed and served by the:
a. applicant by 3 July 2017; and
b. respondent by 3 August 2017.
5. The application for review be listed for hearing at 10.15am on 8 August 2017.
6. There be liberty to apply.
7. Costs be reserved.
(“3 March 2017 Orders”).
15. Mr Cutts did not file any amended Review Application or any further affidavits in support of the Review Application as he was entitled to do under the 3 March 2017 Orders.
16. On 9 March 2017 the Deputy Commissioner’s lawyers sent a letter to Mr Cutts enclosing the 3 March 2017 Orders: third affidavit of Tegan Waller, affirmed 30 June 2017.
17. On 21 April 2017 the lawyers for the Deputy Commissioner wrote to Mr Cutts referring to the 3 March 2017 Orders. The letter went on to refer to order 2 of the 3 March 2017 Orders, and to ask Mr Cutts to inform the lawyers for the Deputy Commissioner as to whether he intended to amend his Review Application or file any further supporting affidavits in according with the 3 March 2017 Orders: second affidavit of Tegan Waller, sworn 30 June 2017.
18. On 9 May 2017 the Deputy Commissioner sent an email to the Court requesting that the matter be re-listed due to Mr Cutts’ “non-compliance” with order 2 of the 3 March 2017 Orders and Mr Cutts’ letter to the Court dated 2 May 2017. By email dated 10 May 2017 the Court advised the parties to confer concerning the alleged non-compliance with the 3 March 2017 Orders. On 12 May 2017 the Deputy Commissioner’s lawyers wrote to Mr Cutts referring to the 3 March 2017 Orders and the Deputy Commissioner’s letters to Mr Cutts dated 9 March and 21 April 2017. The Deputy Commissioner indicated that it had received a letter seemingly sent by Mr Cutts to the Court dated 2 May 2017 requesting that the matter be adjourned sine die. The Deputy Commissioner’s lawyers confirmed that the Deputy Commissioner opposed the matter being adjourned sine die, or at all. The Deputy Commissioner’s lawyers went on to say that under order 2 of the 3 March 2017 Orders Mr Cutts was required to file and serve the documents referred to therein and that the Deputy Commissioner had not been served with a copy of those documents. The Deputy Commissioner’s lawyers further indicated that they had written to Mr Cutts on 21 April 2017 querying whether he intended to file any documents in accordance with order 2 of the 3 March 2017 Orders and had received no response. Enclosed with the 12 May 2017 letter was a request sent by email to the Court requesting that the matter be re-listed and the Court’s email requesting that the parties confer before the matter be re-listed (both of which it appears had been copied to Mr Cutts in any event). The letter then indicated that the Deputy Commissioner’s instructions were to seek that the matter be re-listed and that the Review Application be dismissed for non-compliance with the 3 March 2017 Orders. For the purpose of conferral, Mr Cutts was requested to confirm whether he would comply with the requirements of order 2 of the 3 March 2017 Orders and whether he was still seeking that the matter be adjourned sine die: second affidavit of Georgia Kyros, sworn 30 June 2017.
19. On 22 May 2017 the Deputy Commissioner’s lawyers wrote to Mr Cutts referring to their letters dated 9 March, 21 April and 12 May 2017, to which it was said no response had been received. The letter went on to indicate that the lawyers would call Mr Cutts on Thursday, 25 May 2017 at 2.00pm to confer about whether he intended to comply with the 3 March 2017 Orders, and that if the Deputy Commissioner’s lawyers were not able to contact Mr Cutts on the date and time proposed, or failed in attempts to contact him following that time, that they would write to the Court on 29 May 2017 requesting the matter be re-listed and that the Review Application be dismissed for “non-compliance” with the 3 March 2017 Orders: first affidavit of Tegan Waller, affirmed 30 June 2017 at [2] and Annexure TW 1.
20. On 1 June 2017 the Deputy Commissioner wrote to the Court and advised that conferral had been unsuccessful, and that the Deputy Commissioner sought to have the matter re-listed due to Mr Cutts’ alleged non-compliance with order 2 of the 3 March 2017 Orders. On 16 June 2017 the parties were advised that the matter had been listed for a further directions hearing at 12.30pm on 30 June 2017.
21. On 19 June 2017 the Deputy Commissioner’s lawyers wrote to Mr Cutts and:
a) advised that the matter had been re-listed for a directions hearing on 30 June 2017 at 12.30pm; and
b) advised that at the hearing the Deputy Commissioner’s lawyers were instructed to seek that the Review Application be dismissed for non-compliance with the 3 March 2017 Orders: first affidavit of Georgia Kyros, sworn 30 June 2017 at [2] and Annexure GK 1.
…
23. The matter came before the Court on 30 June 2017. Mr Cutts did not appear on 30 June 2017. Nor, the Court notes, did Mr Cutts appear on any occasion on which the matter was listed before the Court up to and including the directions hearing on 3 March 2017. The Court is aware that Mr Cutts has forwarded various correspondence to the Court in relation to his health, none of which is on affidavit, or otherwise before the Court in evidence. At no stage, however, has Mr Cutts sought to file any application in a case, supported by affidavit, making application for any adjournment of any of the proceedings before this Court on the basis of his health, none of which is on affidavit, or otherwise before the Court in evidence. Judgments of the Federal Court and this Court establish that a person alleging a medical condition, and seeking to rely upon that medical condition for the grant of an indulgence (such as an adjournment), needs to provide sworn evidence to the Court concerning the medical condition: see, for example, NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559 at [5]-[10] per Lindgren J; Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 at [48]-[49] per Collier, Griffiths and Mortimer JJ; BYF15 v Minister for Immigration & Border Protection [2016] FCA 774 at [35] per Perry J; Ellis v Rottnest Lodge (1989) Pty Ltd trading as Rottnest Lodge (No 2) [2017] FCCA 190 at [35] per Judge Lucev. The Court reserved judgment on the Deputy Commissioner’s application for default judgment.
The dismissal of the Deputy Commissioner’s application for default judgment in Cutts (No 1) related to the particular form of orders made by the Court on 3 March 2017 (“3 March 2017 Orders”): Cutts (No 1) at [27] per Judge Lucev, and had nothing to do with Mr Cutts’ various failures to attend before the Court on various occasions. It was those failures which caused the Court to:
a)make the observations which it did in Cutts (No 1) at [23] per Judge Lucev; and
b)make order 4 of the 3 August 2017 Orders containing the very specific provisos in relation to an application for adjournment of the final hearing of the Review Application.
No compliance by Mr Cutts with 3 August 2017 Orders
The intention of the 3 August 2017 Orders was to allow Mr Cutts the opportunity to make an application in proper form for an adjournment of the final hearing, supported by evidence in proper form, properly before the Court.
Mr Cutts has not complied with the 3 August 2017 Orders in that he has not filed any application in a case seeking adjournment of the final hearing listed for 16 October 2017, nor has he filed any evidence in the form set out in order 4 of the 3 August 2017 Orders. Nor did Mr Cutts take the opportunity to appear, whether in person or by a lawyer, or by telephone (as to the latter see FCCA Act, ss.66, 67 and 68) at the interlocutory hearing on 11 October 2017. It is, therefore, the case subject to what is said below, and in accordance with order 2 of the Court’s 3 August 2017 Orders, that the final hearing listed for 16 October 2017 ought to be proceed.
The 2 October 2017 correspondence and affidavit
On 2 October 2017, the date for compliance with order 4 of the 3 August 2017 Orders, correspondence was forwarded to the Perth Registry of this Court by a Cheryl Kozisek (“Ms Kozisek”) and Mr Cutts, attaching an affidavit from Mr Cutts (“2 October 2017 Affidavit”), which in turn annexed a medical certificate from a surgeon and his recent hospitalisation records.
The 2 October 2017 Affidavit is in the following terms:
1) Unfortunately we did not receive a copy of Judgment and Orders from 3 August 2017, and these had to be requested from Federal Circuit Court Australia Judge Lucev Chambers. Despite that we have previously requested all correspondence be addressed to Cheryl Kozisek at 73 Spencer St Bunbury.
2) Received orders 23.8.2017, with orders set and time constraints, physically not possible, with Major Health issues and hospitalization. Further due to absolute poor health conditions, mentally and physically, which has been totally present to even be able to comply, with the orders (again literally not possible) and in no way shape or form is there any disrespect to his Honour or The Court.
3) Regarding Health conditions; Major Abdominal Surgery 28.8.2017 12 days in hospital, and unfortunately suffering a post operative wound infection. Home for e few days, ongoing acute pain and hospitalized for a further 4 days.
Exhibit MJC 1;Medical Certificate from Surgeon.
Exhibit MJC 2; First Hospital Summary.
Exhibit MJC 3; Second Hospital Summary.
4) It appears the Court has Maurice as the respondent in the Application for Review.
5) Orders sought; that ALL the ORDERS be set aside, until the applicant has sought ALL available, lawful rights.
6) Accordingly the applicant shall rely upon all correspondence and notices in this matter, and seeks from The Court likewise to evaluate the facts so present and assist a layman in those orders sought until the low level of health changes.
7) Further notification is hereby given and leave sought for an adjournment Sine Die of all proceedings, until Maurice is well enough to continue with The Application for Review.
The 2 October 2017 Affidavit although purportedly that of Mr Cutts is curiously drafted in that it refers:
a)twice to “we” at paragraph 1 without indicating who “we” refers to; and
b)to “Maurice”, which presumably is Mr Cutts, in the third person in paragraphs 4 and 7,
which must lead to some doubt as to whether the 2 October 2017 Affidavit is in fact an affidavit of Mr Cutts.
The medical certificate is a standard form medical certificate which purports to certify that Mr Cutts is:
Unfit from 28/8/17 to 30/10/17 due to illness/injury.
Remarks:- Unfit for court paperwork process
Major surgery undertaken: 28/8/17 with anticipated month -2 month recovery with significant impairment in ability to participate during that time.
(“Medical Certificate”).
The Medical Certificate is signed by Dr Jacinta Cover, who appears to have been Mr Cutts’ surgeon, and is dated 28 September 2017.
The first Discharge Summary dated 8 September 2017 (“First Discharge Summary”), which is annexure MJC 2 to the 2 October 2017 Affidavit, indicates that Mr Cutts was in hospital for 12 days from 28 August 2017 to 8 September 2017. It is unnecessary to go into significant detail with respect to the clinical history set out in the First Discharge Summary, save to observe that Mr Cutts had elective general surgery by way of a high anterior resection for diverticular disease and an umbilical hernia repair. The post discharge plan required Mr Cutts to present to a clinic to have his dressing changed, to attend a follow-up with his surgeon in two weeks, and to complete a course of oral antibiotics and to take analgesia as prescribed.
The second Discharge Summary dated 21 September 2017 (“Second Discharge Summary”), which is annexure MJC 3 to the 2 October 2017 Affidavit, indicates that Mr Cutts was hospitalised for four days from 18 to 21 September 2017. The Second Discharge Summary indicates that he presented with abdominal pain, but that no cause was found for the abdominal pain, The post discharge plan required Mr Cutts to take his analgesia, and to follow-up with his GP if the pain was not controlled, and to follow-up with his surgeon in 7-10 days and suggested that his GP consider a mental health care plan for him as he was “very anxious”.
All of Mr Cutts’ medical records indicate that his address is “25 Ferguson Road, Dardanup”, which is a different address to the address for service provided in the Review Application, and a different address to that referred to in the 2 October 2017 Affidavit as the address to which all “correspondence” ought to be sent.
Matters raised by the 2 October 2017 Affidavit
Whether to deal with matters raised by the 2 October 2017 Affidavit
The 2 October 2017 Affidavit was not filed, but merely sent to the Registry by facsimile. Given the terms of order 4 of the 3 August 2017 Orders it is strictly unnecessary to deal with the 2 October 2017 Affidavit and the matters raised therein, including in particular the request in paragraph 7 that the final hearing on 16 October 2017 be adjourned, because the 2 October 2017 Affidavit fails to comply with the terms of order 4 of the 3 August 2017 Orders. Notwithstanding that, the Court proposes to address the matters raised in the 2 October 2017 Affidavit, if only to demonstrate that they do not raise matters which would warrant an adjournment of the final hearing on 16 October 2017.
Dealing with the issues raised by the 2 October 2017 Affidavit
The role and mode of operation of this Court as set out in the FCCA Act and the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”), and as prescribed by the objects in ss.3 and 42 of the FCCA Act, and the objects in r.1.03 of the FCC Rules, 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.
Sandeep v Minister for Immigration & Anor [2016] FCCA 3339 at [23] per Judge Lucev (and cases there cited).
The Court notes that whether or not an adjournment is granted is a discretionary matter for the Court, and it is a discretion in the exercise of which the Court is entitled to take into account a broad range of circumstances: Myers v Myers [1969] WAR 19 at 21 per Jackson J; MZZZL v Minister for Immigration & Anor [2014] FCCA 1309 at [9]-[10] per Judge Lucev.
The Court must also have regard to the following matters when determining whether or not to grant leave to allow an adjournment:
a)that the paramount consideration remains the doing of justice between the parties, but that 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.
Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14 at [30] per French CJ and [97]-[103] per Gummow, Hayne, Crennan, Kiefel and Bell JJ. Thus, any application for adjournment must be considered in the relevant statutory, factual and case management context.
Receipt of judgment in Cutts (No 1) and 3 August 2017 Orders
The first matter raised by the 2 October 2017 Affidavit is an allegation that a copy of the judgment in Cutts (No 1) and the 3 August 2017 Orders were not received by Mr Cutts.
The Court notes that r.6.01 of the FCC Rules provides as follows:
(1) A party to a proceeding must give an address for service.
(2) A party may give an address for service:
(a) by filing a relevant document that includes an address for service; or
…
(6) If the party is not represented by a lawyer but provides an email address, the party agrees to receive documents at the email address.
On the Review Application there is a physical address for service nominated, namely “3 Coral St South Bunbury WA 6230”. Further there are two email addresses nominated for service, namely:
a)[email protected]; and
The Court file indicates that the Court sent the 3 August 2017 Orders, and the judgment in Cutts (No 1), to Mr Cutts at an email address which was nominated for service, that is, [email protected], which would appear to be an email address personal to Mr Cutts. In the circumstances the assertion that the 3 August 2017 Orders and the judgment in Cutts (No 1) were not sent to, or received by, Mr Cutts cannot be made out.
The Court did subsequently send a further copy of the judgment in Cutts (No 1) and the 3 August 2017 Orders to Ms Kozisek, following a request from her, but that does not alter the fact that copies of those documents had already been sent to Mr Cutts.
Medical Certificate and First and Second Discharge Summaries
The Medical Certificate is little more than a bare medical certificate. Although it does indicate that Mr Cutts has had major surgery and in the opinion of his surgeon will be unfit for a period of one to two months from 28 September 2017 “for court paperwork process”, it does not explain why that is so in any detail, or in the necessary detail, to warrant the Court further adjourning these already protracted proceedings. Furthermore, the fact that Mr Cutts has forwarded to the Registry of the Court (but not filed and served) an affidavit prepared by him, with the Medical Certificate, First Discharge Summary and Second Discharge Summary annexed, belies the assertion in the Medical Certificate that Mr Cutts is not able to prepare paperwork for the Court process.
The First Discharge Summary and Second Discharge Summary do not appear to support the assertion that Mr Cutts is not able to appear or prepare for the final hearing of this matter. The relevant post discharge plans do not appear to preclude Mr Cutts engaging in any form of normal activity at all, much less any form of sedentary activity such as the preparation of paperwork. It is evident from Mr Cutts’ sending of the 2 October 2017 Affidavit and annexures to the Registry that he is capable of undertaking, or organising to have undertaken, the process envisaged by order 4 of the 3 August 2017 Orders. It is, with respect, inconsistent to assert that Mr Cutts cannot make an application for adjournment of the final hearing by way of an application in a case supported by an affidavit or affidavits, and that if made on medical grounds, that the affidavit or affidavits be of the medical practitioner or medical practitioners annexing a report or reports as to the medical grounds for adjournment, those reports to be in the form of an expert’s report complying with the relevant practice note of the Federal Court, when he has forwarded to the Registry an Affidavit prepared by him personally, and a medical certificate from his surgeon and the First and Second Discharge Summaries, all of which he must have organised to be provided.
It is notable that there has been no explanation as to how it is that Mr Cutts is able to have prepared correspondence, the 2 October 2017 Affidavit, annexing the Medical Certificate and the First and Second Discharge Summaries, and have those forwarded (but not filed) with the Registry of the Court, yet is unable to have prepared, either himself, or by someone on his behalf (including a lawyer), an application in a case for an adjournment and an affidavit annexing a report in the form of an expert’s report to support an application for adjournment.
In the above circumstances, it cannot be said that it was beyond Mr Cutts’ capacity to arrange for order 4 of the 3 August 2017 Orders to be complied with.
Case management considerations
The Court takes into account also the interests of the administration of justice and the interests of justice. And it does so having regard to the fact that s.42 of the FCCA Act requires matters in this Court to be dealt with with a degree of expedition, and perhaps less technically procedurally, than they might be dealt with in the superior State and Federal Courts. The Court also takes account of the fact that there is only one judge in the Perth Registry of this Court, and the Court, as presently constituted, has more than 600 matters in its docket. Were this matter to be adjourned, notwithstanding the best efforts of the Court, it might not be possible to bring it back on with any expedition, or if it were to be brought back on with expedition other matters would have to be relisted for hearing; to the disadvantage of those litigants, or the matter would have to be over-listed on a particular day. The Court notes that there has already been one final hearing of this matter adjourned on 8 August 2017. Case management considerations in this Registry of this Court therefore weigh significantly against an adjournment of a matter of this type. There have already been protracted delays in dealing with the Review Application, contrary to the intent of s.42 of the FCCA Act, while r.2.02(3) of the Federal Circuit Court (Bankruptcy) Rules 2016 (Cth) provides that an application for review of a Registrar’s decision ought to be listed for a hearing as soon as possible, and unless impractical to do so, within 21 days after filing.
Given that Mr Cutts appears to assert that he is solvent, there is no explanation as to why he was unable to instruct a lawyer to appear for him, or to make the necessary application in a case, or prepare an affidavit annexing a report in the form of an expert’s report in support of an adjournment application.
A further reason that the final hearing ought not to be adjourned is that Mr Cutts is presently indebted to the Deputy Commissioner in an amount in excess of $700,000: Affidavit of Leonard Jamble affirmed 3 November 2016 at [4], and although Mr Cutts has asserted previously: see Cutts (No 1) at [5] per Judge Lucev; and [5] above, that he can repay the debt at 100 cents in the dollar: see also Cutts (No 1) at [7] per Judge Lucev, there is no, or no sufficient, evidence that that is the case. The existing level of debt would ordinarily be sufficient to see him bankrupted: Deputy Commissioner of Taxation v Nugawela (No.2) [2017] FCCA 1999 at [7] per Judge Lucev.
The Court further notes that in bankruptcy proceedings there is an element of public interest in ensuring that a person who is insolvent, and who cannot pay their debts, does not continue to either trade or accrue further debts whilst insolvent: Deputy Commissioner of Taxation v Broadbeach Properties Pty Ltd [2008] HCA 41; (2008) 237 CLR 473; (2008) 82 ALJR 1411; (2008) 69 ATR 357; (2008) 248 ALR 693; (2008) 67 ACSR 593; (2008) ATC 20-045; (2008) 26 ACLC 880 at [44] per Gummow ACJ, Heydon, Crennan and Kiefel JJ (“Broadbeach”); Totev v Sfar & Anor [2008] FCAFC 35; (2008) 167 FCR 193; (2008) 247 ALR 180; (2008) 5 ABC(NS) 691 at [17] per Emmett J; Bryant v Commonwealth Bank of Australia & Anor (1996) 90 LGERA 126 at 131 per Kirby J; Deputy Commissioner of Taxation v Nugawela [2017] FCCA 1289 at [62] per Judge Lucev. In the circumstances, there is in this case a public interest which weighs, perhaps albeit not quite so heavily as other considerations, but which nevertheless weighs against an adjournment and which does constitute some prejudice also to the Deputy Commissioner.
Finally, the Court notes that there is no indication as to when, if ever, Mr Cutts may be fit to attend any hearing of the Review Application. Sometimes hearings, in such circumstances, have to proceed without a party being present.
Conclusion and orders
There comes a point in all litigation where it is necessary for the matter to be heard and resolved. This matter, which involves Mr Cutts’ own Review Application, has reached that stage. The Deputy Commissioner has had the benefit of a Sequestration Order made by a Registrar of this Court since 13 September 2016. In circumstances where Mr Cutts has been given the opportunity to file and serve detailed medical evidence in support of any adjournment application, and has failed to file both an application in a case for an adjournment and the relevant medical evidence as ordered by the Court, the Deputy Commissioner is entitled to have the Review Application dealt with in order to finally determine the litigation. That necessitates the final hearing of the matter proceeding on Monday, 16 October 2017.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 16 October 2017
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