Fletcher v George and Ors (No.9)
[2010] FMCA 543
•16 July 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FLETCHER v GEORGE & ORS (No.9) | [2010] FMCA 543 |
| BANKRUPTCY – Amended application in a case – bankrupt to inform the trustee of circumstances of an accident – bankrupt be required to give oral evidence – allegations of prejudice by the bankrupt. |
| Bankruptcy Act 1966 (Cth) |
| Applicant: | WILLIAM JOHN FLETCHER AS TRUSTEE OF THE BANKRUPT ESTATE OF LAUREN KAY GEORGE (A BANKRUPT) |
| First Respondent: | LAUREN KAY GEORGE |
| Second Respondent: | DR PETER IRONSIDE PTY LTD |
| Third Respondent: | DR PETER DOUGLAS IRONSIDE |
| Fourth Respondent: | NATIONAL AUSTRALIA BANK LIMITED |
| Fifth Respondent: | SUSAN WILSON |
| File Number: | BRG 709 of 2008 |
| Judgment of: | Burnett FM |
| Hearing date: | 16 July 2010 |
| Date of Last Submission: | 16 July 2010 |
| Delivered at: | Brisbane |
| Delivered on: | 16 July 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr C.D. Coulsen |
| Solicitors for the Applicant: | Holman Webb |
| Solicitors for the First Respondent: | The First Respondent appeared on her own behalf |
| Solicitors for Second Respondent: | Bell Dixon Butler Lawyers |
| Solicitors for the Third Respondent: | Bell Dixon Butler Lawyers |
| Solicitors for the Fourth Respondent: | Thynne & Macartney |
| Solicitors for the Fifth Respondent: | Lewis & McNamara Solicitors |
ORDERS
That the application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 709 of 2008
| WILLIAM JOHN FLETCHER AS TRUSTEE OF THE BANKRUPT ESTATE OF LAUREN KAY GEORGE (A BANKRUPT) |
Applicant
And
| LAUREN KAY GEORGE (A BANKRUPT) |
First Respondent
| DR PETER IRONSIDE PTY LTD |
Second Respondent
| DR PETER DOUGLAS IRONSIDE |
Third Respondent
| NATIONAL AUSTRALIA BANK LIMITED |
Fourth Respondent
| SUSAN WILSON |
Fifth Respondent
REASONS FOR JUDGMENT
The counsel for the trustee in bankruptcy seeks leave to read an amended application in a case filed 15 July 2010. The bankrupt opposes that course. She claims prejudice in respect of these matters. The matters, in my view, do not give occasion for prejudice.
The first matter relates to an order sought by the trustee for the bankrupt to deliver up to the trustee vested property and to disclose to the court the location thereof.
Paragraph 3, which the trustee seeks to prosecute today, seeks for the bankrupt to inform the trustee of circumstances of an accident which has been referred to in correspondence.
Paragraph 7 seeks an order that the bankrupt be directed to give oral evidence today about those matters.
In my view there is no prejudice demonstrated by the bankrupt. The matters relevant to Order 1 sought by the trustee have now been resolved by the Full Court. I note the applicant says she has made application for special leave to the High Court.
I make the following observations. First, in material which she has filed by leave today, she attaches a copy of what can only be described as a proposed application for special leave. There is attached a copy of an application for special leave. The copy, I note, is unsigned and undated which would suggest to me that no application for special leave has yet been made.
But, furthermore, even if the application had been made, I have regard to the observations made by Logan J in considering the stay application. His Honour concluded his reasons dismissing the stay application at paragraph 24 in these terms:
“Having regard to the pleaded position and the criteria set out in a non-exhaustive way in section 35A of the Judiciary Act is relevant to the question whether special leave should be granted, I find it very difficult indeed to regard any special leave application as having any reasonable prospects of success.”
I share His Honour’s sentiments insofar as it relates to the favourable exercise of the discretion. In that event, even if a special leave application has been commenced, its prospects are so poor as not to warrant or otherwise to constitute any prejudice by permitting the trustee to pursue the order sought in paragraph 1.
Likewise, in relation to paragraph 3, the bankrupt says she has now provided this material to the trustee. It would seem, having regard to that admission, there can be no prejudice to her in that respect.
Finally, in respect to paragraph 7; what the trustee seeks is to formally ask the bankrupt questions in relation to the matters sought in respect of paragraphs 1 and 3. Having regard to the history of this application to date, it seems to me that no prejudice can be suffered by the bankrupt in being required to answer questions addressed to her by the trustee. Indeed, if anybody is to suffer prejudice, it is more likely to be the trustee because of the incurring of further unnecessary costs that might be occasioned by an adjournment of what is, in essence, a matter that should not take any more than five minutes: although, given the history of this matter, it is probably likely to take another couple of hours.
The bankrupt’s application is dismissed.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Burnett FM
Date: 2 August 2010
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