Francis v Eggleston Mitchell Lawyers Pty Ltd (formerly Eggleston Mitchell Lawyers)
[2012] HCATrans 232
[2012] HCATrans 232
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M49 of 2012
B e t w e e n -
LOUISE FRANCIS
Applicant
and
EGGLESTON MITCHELL LAWYERS PTY LTD (FORMERLY EGGLESTON MITCHELL LAWYERS)
Respondent
Application for reinstatement
CRENNAN J
TRANSCRIPT OF PROCEEDINGS
AT MELBOURNE ON WEDNESDAY, 26 SEPTEMBER 2012, AT 9.37 AM
Copyright in the High Court of Australia
MS L. FRANCIS appeared in person.
MR D.K. SHIRREFS: If your Honour pleases, I appear for the respondent. (Wilmoth Field & Warne)
HER HONOUR: Thank you. Ms Francis, I have read your affidavit material and I understand the basis on which you are applying for an extension of time is that your printer broke down and that caused the delay of nine days.
MS FRANCIS: Yes, your Honour.
HER HONOUR: Unless you want to add anything to that it seems to me it might be appropriate to start with Mr Shirrefs this morning.
MS FRANCIS: Yes, your Honour. Do I get to respond to Mr Shirrefs?
HER HONOUR: Yes, certainly.
MS FRANCIS: Thank you, your Honour.
HER HONOUR: Yes, certainly. Yes, Mr Shirrefs. I have read the affidavit material in support and I have also read the respondent’s summary of argument.
MR SHIRREFS: Excuse me, your Honour, I think that unless there is anything in particular in the materials which you would like me to address you on perhaps it is best that I do just try and move through the arguments.
HER HONOUR: May I just ask you this, I understand that the debt which is the subject of a second bankruptcy notice filed by the respondent on 17 September 2010 is in respect of outstanding legal fees. Do you mind just giving me the amount, it is of the order of $11,000 but I just could not track down the exact amount.
MR SHIRREFS: It is set out in the affidavit of the trustee, Mr Rambaldi.
HER HONOUR: Mr Rambaldi, yes. I know I have read and I just ‑ ‑ ‑
MR SHIRREFS: At paragraph 5 it is listed as “Eggleston Mitchell Lawyers $17,524.98”.
HER HONOUR: I am sorry, I am now looking at the affidavit of Gess Michael Rambaldi filed on 24 September and you ‑ ‑ ‑
MR SHIRREFS: That is correct, your Honour, at paragraph 5 which breaks over to the top of the second page. It sets out “Creditors identified” and the “Amounts claimed”.
HER HONOUR: I see. So that was the sum claimed in the bankruptcy notice?
MR SHIRREFS: That is correct.
HER HONOUR: Yes.
MR SHIRREFS: And that, of course is, using loose language, a capitalised sum which relates to the costs order which was incurred in the common law action going right back to the very beginning.
HER HONOUR: So this is an action about personal injury?
MR SHIRREFS: That is correct.
HER HONOUR: It occurred in the County Court?
MR SHIRREFS: Yes.
HER HONOUR: And so that is the capitalised total which was the subject of the bankruptcy notice, the original tax debt being of the order of 11,500?
MR SHIRREFS: That is correct, your Honour, yes, so that is the ‑ ‑ ‑
HER HONOUR: Yes. Now, when did the proceeding in the County Court conclude, can you tell me that?
MR SHIRREFS: The order of Master Wood which was in relation to a summons for taxation which concerned those matters was in May 2006 so I cannot give you a particular date other than to say ‑ ‑ ‑
HER HONOUR: Well, it is obviously before then. So the order of Master Wood concerning the taxation was May 2006, yes. That is helpful, thank you.
MR SHIRREFS: That is correct.
HER HONOUR: Thank you. I am sorry to have taken you off your ‑ ‑ ‑
MR SHIRREFS: In short compass, your Honour, the position of the respondent is that the application were leave – perhaps if I could just put it this way, as we understand it, what Ms Francis is really asking for is what some people call a “then for now order” or a “now for then order”. Our position is simply that were your Honour to grant that there would really be no utility insofar as by reference to the documents which have been filed for Ms Francis the case is patently one which we say is hopeless or at the very best with very, very limited prospects of success.
In very short compass, if your Honour was to look at the leave or special leave questions in Part I of the applicant’s written case. Does your Honour have that to hand?
HER HONOUR: Yes, I do. I am now looking at that, Mr Shirrefs.
MR SHIRREFS: Now, paragraphs 1.1 through to 1.7 articulate, in short compass, leave, or a purported leave, or special leave questions. They are elaborated on in Part III of that document. The purported leave or special leave questions variously ignore the existence of relevant Federal Court Rules, they misstate the evidence and they also misstate the analysis of Justice Jessup. Very, very quickly, paragraph 1.1 where it is put that there were no reasons “given nor reserved”. That is quite clearly not the case. The actual published reasons are published on the 30th, which was the day of the hearing, and there were extensive reasons given in court by his Honour.
HER HONOUR: Ex tempore?
MR SHIRREFS: Ex tempore, that is correct. In fact, it just so happens that the current day book I am using still has my own records and they are very, very close to verbatim what was published. In any event, your Honour, it was published on that day, so that is simply not correct. With respect to paragraph 1.2 it is put there that – an argument that the appellant may have been denied natural justice by the refusal of the adjournment and the dismissal of the appeal without it being heard:
when the appellant’s solicitor ceased to act three days before the hearing -
If I might just deal with that, there is no evidence about that before the Court. There was no evidence about that in fact before the Appeal Court and, in any event, where it proceeds to say:
without filing the appeal documents, or otherwise preparing for the hearing?
The situation concerning the requirements for filing documents and otherwise preparing for the hearing are discussed at length by Justice Jessup and the points made by his Honour are that even on 30 April, on the date that the matter was heard, there still had been no compliance. There had been no efforts, notwithstanding these relationships with the solicitors made by the appellant.
It simply could not be the case that the appellant had quite fulsome notice of the position of the respondent and the requirements going back to the directions made by his Honour Justice Gray in February the requirements under the Rules, and nothing was produced and to this day has not been produced that I have seen.
1.3 Does a Court of Appeal in dismissing an appeal under Federal Court Rules 2011 r36.74(1)(a), (b) and (d), upon application on the first hearing date, breach the rule?
Your Honour, I think that the question really here is, in my submission it is not putting it too high to say that this really is a misstatement of relevant propositions insofar as the Federal Court Rules in rule 1.34 actually provides for the court to dispense “with compliance with Rules” so there is quite clearly the power to do that, and that deals with paragraphs 1.3, 1.4 and 1.5, in my submission, but the central question if there was to be a challenge about whether that had been appropriately used, if I might put it that way, is whether or not justice has been served, justice being the paramount consideration and, I think I do not need go any further than the loose‑leaf service which refers Queensland v JL Holdings as authority for that proposition.
It is utterly consistent with justice being the paramount consideration that in the circumstances, as described by his Honour Justice Jessup – I think in his own words he said that it brought the matter within the contemplation of exercising that discretion.
So provided, then, that his Honour has exercised that discretion judiciously - and in my submission his Honour does exercise the discretion judiciously - and I think your Honour would really only need to read paragraphs 13 and 14 of his Honour’s decision where it is very clear he is not only aware of the potential disadvantage suffered by a self‑represented litigant were they impecunious and unable to retain lawyers but he actually considers that. He considers that that is actually not an appropriate characterisation of this situation where it is inconsistent with Ms Francis’s underlying argument that she is solvent, that she has not been able to retain legal advisers.
In fact, there has been numerous occasions when she has had legal advisers, two, which are referred to by his Honour. And so in light of section 37M of the Federal Court Act which sets out the overarching purpose, and if I might just paraphrase, and that is essentially that the administration of justice be proportionate to the issues at hand, that it be delivered efficiently and that people are given – in the appropriate context of an individual case – the opportunity to present their case and that the Court deals with it in light of its own resourcing requirements and case management principles, generally. Those three paragraphs, 1.3, 1.4 and 1.5, are simply untenable, in my submission.
If I might then just take your Honour to paragraph 1.6 in Part 1 of the appellant’s summary where it is submitted that – the question:
Does a Court of Appeal deny natural justice to an appellant by failing to properly consider the appellant’s evidence?
might be a question for leave or special leave to consider. That is quite clearly a misstatement. I suppose from the perspective of the respondent they would say that is a disingenuous misstatement of actually what was concluded by Justice Jessup. Perhaps, given the circumstances of Ms Francis, it is better to simply say that that might be a misconception of what his Honour said but at – and I will take you to this paragraph because I think they are critical, your Honour. Does your Honour have a copy of Justice Jessup’s decision?
HER HONOUR: I do. I have it in front of me.
MR SHIRREFS: At paragraph 9 his Honour says:
I understand that the appellant claims to have had difficulties with both of the firms of solicitors which have represented her, and, if what she has said in her affidavit is to be taken at face value, she has encountered difficulties engaging any legal representative to handle her appeal.
Now, his Honour goes on to suggest that he actually finds that “a difficult notion to understand”. I do not say that a lot turns on that except, perhaps, matters of credit. Then at paragraph 13 says – and this is in light of the proposition put by the appellant – that there has been a failure to consider the appellant’s evidence properly:
I take into account the difficulties which the appellant claims to have encountered, as set out in her affidavit sworn today, and I recognise that in an appropriate case difficulty securing professional representation might constitute a discretionary consideration of some force in the circumstances of an application to dismiss an appeal under r36.74.
His Honour then - and I think these are also relevant to the appellant’s credit, if not to the actual credibility of what was put before his Honour - he goes on and actually says that, “there are some aspects” of those propositions “which give cause for disquiet”. Then, finally, in the last paragraph of his judgment when his Honour is drawing everything together he propounds the course which he is going to take at the opening phrase in paragraph 14, “Taking everything into account - ”.
Now, it is quite clear that his Honour has considered the appellant’s evidence. He has considered all of the appellant’s evidence and without reading chapter and verse or quoting chapter and verse he considers in great detail the specific evidence which relates to the principles as to how an unrepresented litigant may suffer prejudice by reason of not having representation and the nuances in this case. So it just simply cannot be said it is fanciful - your Honour, if I can put it that way – to say that the Court of Appeal failed to properly consider the appellant’s evidence.
And, in any event, as your Honour would understand far better than I, the cases make it clear that even if your Honour was to hear evidence and to form a different view that is not the relevant question. The question here is whether or not anything is pointed to, in Justice Jessup’s decisions which can amount to an error of law or where if I was to put a potential case, I guess, against the respondent where it might have been argued that by reason of misapplication of relevant principles that in itself could amount to an error of law. Now, it is quite clearly not within that realm. The final issue raised by the appellant, then, is at paragraph 1.7 where it is purported as a leave or special leave question”
Is a Court of Appeal’s decision that allows a sequestration order to stand when the lower court judgment refers to the appellant’s solvency and the appellant’s and her witness’s affidavits attest to her solvency a correct application of bankruptcy law?
Now, again, your Honour, in my submission, this is either a disingenuous misstatement of actually what happened or perhaps a misconception of the expression of the conclusions of Federal Magistrate Riley. It is not the case that Federal Magistrate Riley did anything other than say – and this was in response to a submission where an order for indemnity costs were sought, so this is not even in relation to the substantive issue. I just use loose language there. The costs are, of course, a substantive issue but having considered the challenge to the sequestration order, having concluded the hearing de novo and consideration of all of the evidence and then in light of an application for indemnity costs her Honour then said at paragraph 31 of Federal Magistrate Riley’s reasons:
However, notwithstanding that the applicant bankrupt has had the benefit of legal advice, the evidence before the court just does not support such a finding.
That is with respect to the proposition that the appellant here had put to Federal Magistrate Riley that she was solvent. At its absolute best for the appellant here there was a comment earlier on in the paragraph which says:
It seems to me that if the applicant bankrupt had organised her case differently, she may well have been able to prove solvency.
Now, after that, subsequently, her Honour comes back to the considerations which she had to deal with which are that notwithstanding that there had been legal representation the evidence before the court did not support a finding of solvency and she says:
I can only act on the evidence that is before me.
So, it is patently wrong to suggest that the appellant’s case here could get any higher than a mere reference to solvency being a basis for this proceeding to be a special leave application to be heard. That, again, is fanciful, in my submission. The last part of point 1.7 is that, “the appellant’s and her witness’s affidavits attest to her solvency”. Now, that was considered by Federal Magistrate Riley. That is the material which, as Justice Jessup pointed out, had been considered once prior to Federal Magistrate Riley’s considerations then again by Federal Magistrate Riley and there had been no evidence in those affidavits which had established solvency, the onus being on the person seeking a review of the sequestration order to establish solvency and quite clearly that was not the case.
So, again, at its best for the appellant, it misstates the conclusions of Federal Magistrate Riley, if your Honour was to take a slightly darker view of how the case is being put for the appellant is a matter for your Honour. The Federal Court was quite clearly correct to exercise discretion to dismiss the applicant’s appeal. There was quite clear notice. Your Honour, I do not think, has this in the materials, but the draft outline of submissions on behalf of the respondent to Justice Jessup said that they sought that the appeal should be dismissed, in the alternative they sought self‑executing orders and in the alternative they submitted that there was in fact a hopeless case being put by the appellant.
The appellant had notice. His Honour found that the appellant had had notice and consistent with Federal Court Rule 1.34 he dispensed with compliance. The applicant had notice. The applicant was not denied procedural fairness. With respect to the adjournment point the court in fact went to lengths, considerable lengths to consider the applicant’s request and it determined that it would not be appropriate to further delay the administration of the applicant’s estate - I think the words used by Justice Jessup were - “to the detriment of all concerned”.
Now, that is a significant point as well insofar as the appellant has to convince you that not only are there errors in Justice Jessup’s decision but that this is an appropriate vehicle. In light of such a weak case we say that this is not an appropriate vehicle because there is potential disadvantage even to Ms Francis. Insofar as the affidavit of the trustee sets out proofs for approximately $440,000 there is some debate and the informal feedback that I have heard is that there may well be a surplus.
Now, to the extent that this was to proceed to chew up more resources and potentially involve further adverse costs orders or further costs which would be reserved against the estate there is a very real risk that the surplus would be diminished with a negative result in fact for Ms Francis. So when his Honour said that it was important to consider the application of the bankruptcy law for the benefit of all concerned his Honour was in fact considering Ms Francis’s interests as well.
Quite clearly, your Honour would be able to tell me a lot more about Aon Risk Services than I could tell your Honour but it is quite clear that case management is a relevant principle in determining applications for adjournments. I do not think I need to say that the case really stands for anything more than that but reading that case together with section 37M in the Federal Court Act and reading it together with the discretion in rule 1.34 in the Federal Court Rules it is quite clear that as long as it is exercised judiciously, which in my submission it was, there is nothing at all that the appellant can point to as an error in the exercise by Justice Jessup of the decision to not grant the adjournment.
The final point that I wish to make without belabouring our written summary is that the applicant has not provided any authority for this proposition that the High Court might be required to resolve different lines of opinion in relation to cases where solvency has or has not been established. In fact, the two cases referred to by the appellant, which are set out in Part 6, tab of authorities, Rankine v Lord which is a 2011 Federal Court case, and Winn v Blueprint Instant Printing Pty Ltd (No 2) which is another 2011 Federal Court case, are both cases which are, in my submission, obviously distinguishable on the facts.
The first, Rankine v Lord, concerns a firm of trustees who are in fact officers of the court. Their conduct is challenged by people who are really seeking to gain the benefit of delay, as cynically it might be suggested that that is quite common in these cases. It is not a case on all fours – in fact, it is not a case from which your Honour can derive any principles relevant to resolving this matter. Winn v Blueprint Instant Printing is, in fact, a case which deals with a bankrupt who is – perhaps I will take your Honour – does your Honour have a copy of this? I can hand up a copy. I am not sure whether my instructor provided cases.
HER HONOUR: Thank you.
MR SHIRREFS: At paragraph [39], her Honour Justice Dodds-Streeton sets out the history:
The history of this matter in fact reveals an extreme example of a person misusing the law and the legal system to try to avoid her legal obligations. It would appear that Ms Winn has been engaged in a holding operation to delay having to pay the total of the taxed costs awarded against her. She has been accommodated a number of times and has had ample opportunity to seek the review that she now seeks. In the meantime, Blueprint has been delayed for a long time in recovering its costs and has been put to great expense in pursuing them. It is only now, faced with being made bankrupt, that Ms Winn has attempted to take the steps that she had to take to seek a review – namely, to comply with the order of Byrne J by paying the amount fixed costs –
Now, that is quite clearly a situation, or I guess it is for your Honour to draw analogies between these facts and the facts in that case if your Honour is so minded, but I simply say that it is not a case which is helpful, although there is some common issues there. Most importantly, it is put, as I understand it, by the appellant to you that this case is somehow authority for the proposition that where there is an affidavit asserting solvency, that that should somehow be enough. That is dealt with at paragraph [165] where her Honour says:
The respondents did not oppose the filing of the affidavit at a late stage.
That is only relevant insofar as it does go to credit, and possibly credibility, that people in some situations turn up with this purported evidence of solvency at the last minute. There is some similarity between that proposition and the facts of this case. But the affidavit does not disclose, her Honour proceeds to say –
The affidavit does not disclose the appellant’s income, identify her assets, refer to the debt the subject of the petition or the supporting creditor’s debt, provide any detail or exhibit any supporting documentation. It was, as the respondents submitted, inadequate to discharge the appellant’s onus of establishing her solvency under s 52 of the Act.
Now, your Honour, given that there is no material before you today which can be shown to have been before his Honour Justice Jessup, or in some instances before Federal Magistrate Riley, it is a very difficult proposition, in my submission, to be made out that somehow, there is a genuine question of solvency which was before his Honour Justice Jessup. In fact, there is a further and, in my submission, fatal response to that proposition in the affidavit of the trustee, and that is at paragraph 4. Mr Rambaldi deposes to the following:
Despite the requests made by Andrew Yeo as a joint and several trustee of the bankrupt estate of Francis, Francis has not lodged a Statement of Affairs, and this has not assisted in our ability to quantify the exact amount that Francis owes to unsecured creditors.
Notwithstanding that, there are proofs provided at paragraph 5 for approximately $440,000, but that is the absolute fundamental fatal flaw in her argument. The obvious way to establish solvency is through the filing of a statement of affairs. The obvious evidence that was never before any court on any occasion was a statement of affairs, and that is quite simply because Ms Francis has never ever provided evidence on which she could establish the solvency she asserts. In my submission, your Honour, this is a case which could not succeed, were your Honour minded to grant the then for now order which is sought by the appellant, and on that basis, it would be really pointless to grant that order, in my submission. The summons filed by the respondent should be upheld, and there should be an order dismissing the application for the reinstatement of the application to serve and file the application out of time.
HER HONOUR: Yes, thank you, Mr Shirrefs. Yes, Ms Francis.
MS FRANCIS: Your Honour, I have had not really the time – inadequate time to really respond to the amount of information that I have received. I have had 10 emails from the respondents, and three letters. I have got copious amounts of information. There were three lots of submissions, I think, forwarded, and the number of called – it was quite confusing, so as far as the time factor, I have really not had sufficient time to deal with the case, really. I mean, this is the essence of the appeal that we are going to, is it, your Honour? I am not just defending my application to file late, as such.
If I am having to defend the action, and it is reliant on my response to the submissions which I have had for a day, I would like to be represented, and I obviously have not had enough time to go there, but in saying that, I will try, because I was not sure if I was allowed to file affidavits because the order actually said just the submissions – and this stems from a head injury, so I am a little bit disorganised usually – but the respondent’s position is that it seems to be contradictory. They are saying one minute that I am highly likely solvent and there is a surplus, and yet I am not really sure what their point is. I have to say they know that I am solvent, and therefore, it would go to rank in – it is an abuse of process to send somebody bankrupt if you know they are solvent, I would think, but I am not sure that that is what the law says.
With regard to the previous hearings, my main defence against the – I have tried to settle with Mr Mitchell. Prior to taxation, there are offers being made to settle the matter. He has refused all of them. He refused an offer of $12,000 something or other in 2005, so you think it could have been suffice then and I would not be in this position. Registrar Caporale did not go to any of the issues at hand, I think maybe because the documents were not filed, and then it went to Judge Riley who, in the reasons and in the transcript even – the title of my house was in the affidavit, and yet it is not addressed anywhere. The current rate notice is $610,000, so I just do not understand why that was not – we are discussing small amounts in bank accounts, so it seemed to be irrelevant when you own a house outright and there is no mortgage on it, your Honour.
HER HONOUR: Is it correct that you have been asked to provide a statement of affairs to the trustees?
MS FRANCIS: Yes, your Honour, I have. It was earlier on, because I was trying to pay it out, so it seemed to be – and it is a little complex for me because I am the beneficiary of various trusts, and I have asked – there are three different lots of accountants that I have to get that information from, and one of them – today I would have had some, but he is away in New Zealand, and the other one has not replied ‑ ‑ ‑
MR SHIRREFS: Biggin & Scott.
MS FRANCIS: Yes, I did go to Biggin & Scott, which is the real estate agent, to get some information. I tried to get that yesterday, but they have not got back to me regarding that. Your Honour, my house alone is either what the claim alleged, so I do not even see how there could be a – detriment of the respondents, when there is money there. It is not detrimental if they are going to get paid. The real issue is that I say that the order is flawed and it has never been addressed, even though I have been before the Court to say that it is, and it is an important flaw that does not really fall under the slip rule, which everyone just seems to say it does. I do not know if I should address that now, your Honour.
HER HONOUR: I do not want to restrict you in anything you wish to say, Ms Francis.
MS FRANCIS: All right, your Honour. It is in Mr Shirrefs’ submissions on page 7 at the top. It says – I have not got it in front of me – it refers to the order of Master Wood. In point 2, it says:
The orders . . . explicitly state that ‘this is a review of the taxation of costs –
HER HONOUR: Sorry, I cannot quite ‑ ‑ ‑
MS FRANCIS: Sorry, I have not said it yet. It is at the top of page 7.
HER HONOUR: Top of page 7, yes.
MS FRANCIS:
The orders of 11 May 2006 explicitly state that ‘this is a review of the taxation of costs of Master Bruce made on 4 March 2006 pursuant to Rule 63.56.1 of the Supreme Court (General Civil Procedure) Rules 2005’ –
Your Honour, 4 March 2006 is a Saturday. Master Bruce retired on 3 March 2006. I have asked the respondents – I do not know if they can respond when I am talking, can they – but I would like to know which order they are referring to. Mr Shirrefs has said “explicitly states”, so – can I ask them that now, your Honour, or do I just ‑ ‑ ‑
HER HONOUR: Well, you have said that you are raising it as an issue, so wait and see.
MS FRANCIS: If I know now, then I can respond, because there are two responses. It depends on which order they think they are referring to, as to how I respond.
HER HONOUR: You say whatever you wish. You can respond on both bases, if you like.
MS FRANCIS: All right. There are two orders that they could be referring to, which is either 3 March 2006 or 4 March 2005. If it is 4 March 2005, it would mean that it was taxed under the wrong rules, because it should be the 1996 Rules, and if it is 3 March 2006, there was no order for costs in that, so therefore, Master Wood could rely on it, but he could not use – because the fact that he has used an order that was flawed – Master Bruce made that order in error. It was not a final order. Pamela Walton wrote to me and told me that, and I had to put in a review because he had already made that order by mistake actually he made it, I think, and because the bill was only half-tax.
It also contained – it is quite complicated, the whole taxation – but the order is no longer on the Supreme Court record because it was withdrawn. I do not understand Master Wood’s order because of that. It is whether a master can review another master’s order, is that a review, and it is a review of an order – if they are deeming it to be 4 March 2005, he is reviewing an order with different rules, so whether that is correct or not, I do not know, your Honour.
But certainly, I think it is meant to, in the order, be 4 March 2005, which does mean that the wrong – it would mean that Master Wood was using those rules to do the review, but the order itself, which really should not have been used, but anyway, it was under a different set of rules. This is what should have been determined before Magistrate Hartnett because I was trying to put it to her, but she told me to sit down, so we did not really get there, and I can believe it has not been addressed. I went to the Supreme Court actually the day I was made bankrupt to try and define it, but he only gave me 20 minutes to go there and come back, so I did not get to be able to do that, because I would have been too late for the hearing then.
It is not a correct order, really, your Honour, but despite that, I was trying to pay it out to stop the issue progressing, but that was denied by Mr Mitchell, or the respondent, and Mr Shirrefs at court. I tried to hand Mr Shirrefs cheques. Ms Scatinas ‑ ‑ ‑
MR SHIRREFS: I object to that, your Honour.
MS FRANCIS: Ms Scatinas was given the cheques to give him and he just laughed and did not want to have them, possibly because it probably – I do not know if they maybe were not relevant at that point, the costs had gone up or whatever, but I do not know. He did not say why.
HER HONOUR: Yes, Ms Francis.
MS FRANCIS: The other thing, your Honour, is it is a bit confusing, the High Court, because it is different rules and things, but normally, is it correct that if you are represented, the respondents are able to analyse the appeal document as such, but if you are unrepresented, that does not occur normally? Is that correct, your Honour?
HER HONOUR: If you are unrepresented, you are not required to serve them, but the situation is entirely different once a respondent takes a step such as issuing a summons. I think you have been through that before.
MS FRANCIS: Indeed, but I am moving on – the Court has not given me leave to file it. In other words, it is not a filed document, so therefore the analysis of – if the Court gave leave to file it, your Honour ‑ ‑ ‑
HER HONOUR: It is an exhibit to your affidavit in support of your application for an extension of time.
MS FRANCIS: Yes, at that time it was ready, but if the Court gave leave, and it might give leave if that was possible – it is not a filed document at this point. Had I been able to file it, it would have been the appeal. At this point, it is a draft, I think is my point. Do you understand what I am saying, your Honour?
HER HONOUR: Yes.
MS FRANCIS: So they are analysing a document that is actually not – it is pre-emptory, the argument on whether it is satisfactory. The other thing is, Justice Jessup – the fact that they say it is a weak case and there is not enough evidence, Mr Shirrefs said that it is before Justice Jessup and then that he went to great lengths to analyse it, the problem was that the documents were not filed, so in essence, Justice Jessup did not have the adequate information before him to really assess the entire situation, because the solicitor had not filed them. Where she sent the file back, she has actually got that she filed them, they were filed, and strangely the Registry at the Federal Court had listed them as they were filed by me, so they made a mistake and it was corrected the day before, that they actually were filed by the other side, so I had only a day’s notice that they had not been filed, your Honour. I have got emails to show that from the court and the other side.
HER HONOUR: Thank you.
MS FRANCIS: Yes, your Honour, I think that is all. I think that is probably all, your Honour. Thank you, your Honour.
HER HONOUR: Thank you, Ms Francis. Yes, Mr Shirrefs.
MR SHIRREFS: Your Honour, two very brief points by way of reply. If I can describe the first point as being where there is an issue that relates to the order on which the bankruptcy notice and subsequent sequestration orders are based, we discussed this with your Honour initially, and that is in fact the order of Master Wood on 11 May 2006. As I understand the appellant’s proposition, it is that there might be some basis on which your Honour may be minded to go behind that judgment, and in fact, there should have been previous expeditions to go behind that judgment by the Registrar or the Federal Magistrate.
Clearly, your Honour, the relevant thing which has been omitted by the appellant is that those orders were made by consent. The appellant was represented at the time. It is again a very tenuous proposition that there is a basis on which you might sustain a special leave application concerning a defect in that order. With respect to the second point, which concerns the evidence before Justice Jessup, at paragraph 2 of his Honour’s reasons for judgment, he says:
In an affidavit sworn by the appellant this morning and filed in court –
Again, I would put to your Honour that Ms Francis perhaps does not quite understand what had actually transpired before his Honour, and it is clear from his Honour’s reasons that he considered those materials as well as the other materials which he had in front of him, and that simply goes to the fact that, as we said, he made a very fulsome effort to consider the matters.
HER HONOUR: Now, just a question of orders, Mr Shirrefs. If you succeed, the only order that would be necessary would be dismissal of the summons seeking an extension of time, because the application for special leave would stand abandoned, or have you turned your mind to other orders in respect of your summons?
MR SHIRREFS: The summons seeks orders that the applicant’s application seeking leave to file a written case and draft notice of appeal out of time be dismissed, in order to propose ‑ ‑ ‑
HER HONOUR: Well, that would involve the dismissal of the applicant’s summons.
MR SHIRREFS: That is correct, and then order 2, that the applicant’s application for special leave to appeal be dismissed. It is a curious procedural tension, I guess, in the sense that the basis for arguing that the time not be extended is that the ultimate prospects of any special leave
application are so weak. We are in your Honour’s hands. We do not have a proposed form of order, but one way that ‑ ‑ ‑
HER HONOUR: Well, my question really is would it be necessary to dismiss the application for special leave when the consequence of a refusal to grant the extension of time is that the application for special leave is deemed abandoned under the rules?
MR SHIRREFS: I understand what you are saying. I guess what I am trying to contemplate is whether or not there may be any subsequent application, in which case, if your Honour felt that the appropriate disposition was to grant an extension of time and dismiss the application, we are in your hands, your Honour, ultimately, as to what the appropriate orders would be.
HER HONOUR: Thank you.
MS FRANCIS: Can I say something else, your Honour?
HER HONOUR: Yes, you may.
MS FRANCIS: I have not requested to reinstate my case in my application, your Honour, so can I do that now, that it stands dismissed, that I am either requesting that my application be allowed to file late or that the case is reinstated, should it be considered ‑ ‑ ‑
HER HONOUR: The consequence being a reinstatement.
MS FRANCIS: Yes.
HER HONOUR: Yes, I understand that is what you are seeking.
MS FRANCIS: Also, your Honour, I just want to say that if we are really going to the core of the appeal document rather than just the filing late, it is in a strange situation. I do not think that I have had adequate time to really defend their application, because the orders did not really give me leave to file an affidavit. I was not sure if it did or did not. I could not ‑ ‑ ‑
HER HONOUR: I thought I told you that you could file whatever you wish to file.
MS FRANCIS: You did, and then the orders actually just said submissions, the actual orders on the – I have not got the orders, but on the High Court website, it just said submissions, so I would have filed had I thought – I did prepare some, but I did not file them because I was not sure that I was entitled to from the orders. If your Honour is going to determine
– I guess that is what you were saying – the respondent’s application in consideration of my application to either get it reinstated or file documents, I would ask for another hearing so I could defend it fully. The submissions I got yesterday, and the other documents I got on Friday, so I have not had sufficient time to defend their application satisfactorily because of time. Thank you, your Honour.
HER HONOUR: Yes, I did say to you on the last occasion that you might want to swear an affidavit in response to some of the matters which were raised.
MS FRANCIS: Yes, I know you did, your Honour, but ‑ ‑ ‑
HER HONOUR: But you have not done it anyway.
MS FRANCIS: The next thing down, you said you had changed it to giving me leave to file – I know you did say that initially, and I just was not sure.
HER HONOUR: You do not need leave to file an affidavit in response to the summons, Ms Francis, but nevertheless, I understand that you are effectively saying although you have completed submissions, I think you are effectively saying you would like to adjourn for further hearing of this matter. Is that what you are saying?
MS FRANCIS: Yes, your Honour.
HER HONOUR: Yes, thank you. Do you wish to say anything in response to that, Mr Shirrefs?
MR SHIRREFS: No, your Honour. It is clear from the transcript that your Honour considered both a submission of a summary of argument, and also an affidavit, and we say that is quite clear from the face of the transcript, your Honour.
HER HONOUR: Thank you.
MS FRANCIS: Your Honour, can I just clarify a point, sorry? The adjournment – getting another hearing is really if your Honour is – I am sorry, I get so confused – as far as the application for my filing, obviously it is not just for that, but I think I just have to ask for that, do I not? There is no other way to put it. Thank you. Sorry.
HER HONOUR: That is all right.
MS FRANCIS: One more thing, your Honour. I do have medical documents too that I have not produced or filed because I did not file an affidavit, but I can also – that is another issue that I would like to address to, your Honour, if possible. You would like me to address it now?
HER HONOUR: This is an application for leave to file a written case and draft notice of appeal outside the time limit imposed by rule 41.10.3(c) of the High Court Rules 2004. Pursuant to rule 41.10.4.1, the applicant’s application for special leave to appeal described below was taken to be abandoned when the applicant failed to comply with the 28-day time limit imposed by rule 41.10.3(c). An extension of time would effectively reinstitute the applicant’s application for special leave to appeal.
On 28 May 2012, the applicant filed an application for special leave to appeal against orders of a single judge of the Federal Court of Australia (Jessup J) dismissing the applicant’s appeal to that Court from a decision of the Federal Magistrates Court (Riley FM). As the applicant is unrepresented, rule 41.10.3 of the High Court Rules required the applicant to file a draft notice of appeal and a written case within 28 days of the filing of the application for special leave to appeal. The applicant did not do so.
Rule 41.10.4.1 of the High Court Rules provides that, if an unrepresented applicant does not comply with the time limit imposed by rule 41.10.3(c), then the applicant’s application for special leave to appeal will be taken to be abandoned unless the Court or a Justice orders or directs otherwise. By summons filed on 4 July 2012, the applicant now seeks such an order or direction. By summons filed on 20 September 2012, the respondent legal practitioners seek orders that both the applicant’s summons filed on 4 July 2012 and the applicant’s application for special leave filed on 28 May 2012 be dismissed.
The debt of $17,524.98, the subject of a second bankruptcy notice filed by the respondent on 17 September 2010, is in respect of outstanding legal fees incurred in respect of a common law proceeding for personal injuries which concluded in the County Court of Victoria. Those legal costs were the subject of a taxation by Master Wood, who made orders on 11 May 2006.
The history of these proceedings is described in the reasons of the judgment of Justice Jessup: Francis v Eggleston Mitchell Lawyers Pty Ltd (No 2) [2012] FCA 485.
On 25 July 2011, a sequestration order was made in respect of the applicant’s estate by Registrar Caporale of the Federal Court of Australia. On 6 October 2011, the Federal Magistrates Court (Riley FM), made orders dismissing the applicant’s application for review of the sequestration order. On 27 October 2011, the applicant appealed to the Federal Court from the decision of the Federal Magistrates Court. On 7 February 2012, a judge of the Federal Court (Gray J) made a series of conventional orders to put the appeal in a condition in which it could be heard and determined. The applicant did not comply with these directions within the time limit stipulated by Justice Gray, and had not complied with them by the date of the hearing before Justice Jessup on 30 April 2012.
The respondent applied to the Federal Court for an order under rule 36.74 of the Federal Court Rules 2011 dismissing the applicant’s appeal. The issue before Justice Jessup was whether grounds existed for the exercise of the Court’s discretion to dismiss the applicant’s appeal under rule 36.74 which provides:
(1)A respondent may apply to the Court for an order that the appeal be dismissed for the failure by an appellant to do any of the following:
(a) comply with a direction of the Court;
(b) comply with these Rules;
(c) attend a hearing relating to the appeal;
(d) prosecute the appeal.
(2)An application under subrule (1) must be served on the appellant:
(a) at the appellant’s address for service; or
(b) personally.
The respondent did not serve its application on the applicant as required by rule 36.74(2). On the basis that the applicant had otherwise been given notice of the respondent’s intention to make an application under rule 36.74, Justice Jessup exercised his power under rule 1.34 of the Federal Court Rules to dispense with compliance with rule 36.74(2).
His Honour noted that the grounds for the exercise of the discretion in paragraphs (a), (b) and (d) of rule 36.74(1) were clearly made out. His Honour further noted that the applicant had, in effect, had two previous hearings on the question in relation to which she sought to appeal, namely her solvency, and that the continuation of reviews and appeals would have a prejudicial effect on the creditors of the applicant’s estate.
Taking into account all these matters, together with the reasons given by the applicant for her failure to comply with the directions given by Justice Gray, Justice Jessup exercised his discretion under rule 36.74 to dismiss the applicant’s appeal.
The applicant filed the present application on 4 July 2012, nine days out of time, together with an affidavit sworn on 27 June 2012, exhibiting her proposed written case and draft notice of appeal.
In an affidavit filed in support of her application for an extension of time, the applicant states that her printer broke down on the date upon which the material was due to be filed. The applicant’s special leave questions, now filed, reveal complaints about a want of procedural fairness and erroneous application of the Federal Court Rules in respect of Justice Jessup’s decision, and the applicant also seeks to renew arguments in this Court about her solvency which have been dealt in the courts below.
The respondent essentially contends that there would be no utility in granting the extension of time sought by the applicant. An affidavit has been sworn by a trustee of the applicant’s estate and filed in support of the respondent’s summons. The trustee sets out various amounts claimed against the applicant’s estate and states that the estimated sum to annul the applicant’s bankruptcy is $439,483.56 as at 29 August 2012. The trustee also deposes that despite requests to the applicant to file a statement of affairs, to date none has been forthcoming. Ms Francis made oral submissions in response to the respondent. She stated that she would have preferred more time to deal with the respondent’s material and that she is to an extent disorganised because the common law action referred to above involved a head injury.
The background matters set out in the respondent’s affidavits in support of its summons are matters of which the applicant must be well aware. Ms Francis repeated assertions that she is solvent but was not able to proffer a convincing excuse for her continuing failure to file a statement of affairs with the trustee of her estate. At the end of written submissions, Ms Francis sought an adjournment and stated that she had medical documents which raised another issue which she wished to address.
Given the long history of this matter and the futility of the applicant’s application for special leave, it is not appropriate to further adjourn the hearing of this matter occasioning further expense in circumstances where nothing which has been said by Ms Francis overcomes the problem of the futility of her application, an issue to which I now turn.
In Halliday v SACS Group Pty Ltd (1993) 67 ALJR 678, Chief Justice Mason considered an application for an extension of time in which to file a notice of appeal against orders made by a single justice of the High Court. His Honour relevantly said (at 679):
The purpose of the Court’s power to grant an extension of time is to enable the Court to “do justice between the parties”. However, there are a number of factors which must be considered in the exercise of the discretion to grant an extension of time, one of which is the prospect of success of the proposed appeal. If the prospects of success are so slight that the appeal would be futile, it would be wrong to extend the time and subject the respondent to further pointless litigation, delay, inconvenience and expense.
Citations omitted. That approach identified by Chief Justice Mason is an appropriate one to be taken in respect of the applicant’s application for an extension of time for the following reasons.
Because the matter in respect of which the applicant seeks an extension of time is an application for special leave, and because that matter has been deemed abandoned, the present case must be distinguished from the case of a “purely procedural application to extend time for doing an act in respect of an appeal already lodged”, considered by this Court in Jackamarra v Krakouer (1998) 195 CLR 516. Further, even if this were a case to which the principles expressed in Jackamarra v Krakouer applied, the members of the Court in that case recognised that it would be appropriate to deny an application for an extension of time when “the Court can be satisfied that the appeal is so devoid of merit that it would be futile to extend time” (at 521, paragraph 7, per Chief Justice Brennan and Justice McHugh), or where it is “clear that the appeal would fail” (at 528, paragraph 33, per Justices Gummow and Hayne).
The decision of the Federal Court from which the applicant seeks special leave to appeal concerns the practice and procedure of that Court, in particular the application of rule 36.74 of the Federal Court Rules. The respondent correctly submits that the applicant’s written submissions do not raise any issue of principle or question of public importance which would warrant consideration by this Court. Further, the applicant’s written submissions raise no arguable case of error of law in Justice Jessup’s exercise of discretion to dismiss the applicant’s appeal in the Federal Court.
The interests of justice do not require that there be a grant of special leave in this case. In relation to the exercise of his discretion, Justice Jessup noted the applicant’s various difficulties revealed in her evidence before him. His Honour also noted that the applicant has, in effect, had two previous hearings on the underlying question of her solvency. The applicant’s written submissions in this Court raise no arguable case of error in the courts below referred to by Justice Jessup.
The applicant’s application for special leave to appeal filed on 28 May 2012 has no prospects of success. That consideration outweighs the considerations that the extension of time sought is not long and the applicant’s delay has been explained. Because the application for special leave has no prospects of success, it would be wrong to grant the applicant’s application for leave to file a written case and draft notice of appeal outside the time limit imposed by rule 41.10.3(c) of the High Court Rules and subject the respondent and the applicant’s other creditors to further pointless litigation, delay, inconvenience and expense.
The Court orders that:
1. The applicant’s summons filed on 4 July 2012 be dismissed.
2. The applicant to pay the respondent’s costs.
MR SHIRREFS: May it please the Court.
HER HONOUR: Adjourn the Court.
AT 10.56 AM THE MATTER WAS CONCLUDED
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