Goodridge v Robinson

[2011] FCA 1213

FEDERAL COURT OF AUSTRALIA

Goodridge v Robinson [2011] FCA 1213

Citation:		Goodridge v Robinson [2011] FCA 1213
Parties:		ROSS IAN GOODRIDGE v MARK JULIAN ROBINSON
File number(s):		NSD 1721 of 2011
Judge:		ROBERTSON J
Date of judgment:		21 October 2011
Catchwords:		PRACTICE AND PROCEDURE – Bankruptcy – urgent interim application – where judgment reserved in New South Wales Supreme Court – whether direction should be made that an application be withdrawn in the New South Wales Supreme Court –  application dismissed
Legislation:		Bankruptcy Act 1966 (Cth)
Date of hearing:	20 October 2011
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	12
Counsel for the Applicant:	The applicant appeared in person
Counsel for the Respondent:	Mr PJ Dowdy
Solicitor for the Respondent:	Henry Davis York

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1721 of 2011

BETWEEN:	ROSS IAN GOODRIDGE Applicant
AND:	MARK JULIAN ROBINSON Respondent

JUDGE:	ROBERTSON J
DATE OF ORDER:	21 OCTOBER 2011
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The interlocutory application be dismissed with costs.

2.The matter be listed for directions before Robertson J at 9:30 am on 26 October 2011.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1721 of 2011

BETWEEN:	ROSS IAN GOODRIDGE Applicant
AND:	MARK JULIAN ROBINSON Respondent

JUDGE:	ROBERTSON J
DATE:	21 OCTOBER 2011
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This urgent application was made before me as duty judge yesterday afternoon, 20 October 2011. 

2. The relief sought by the applicant was an interim order as follows. 

   In respect of the act, omission and/or decision of the respondent to make and maintain an application to be substituted for the applicant as defendant in New South Wales Supreme Court proceedings 2011/54710 an order that the respondent withdraw its application under Rule 6.30 of the Uniform Civil Procedure Rules 2005;

3. The urgency arose by virtue of the fact that Black J of the New South Wales Supreme Court indicated to the parties on 19 October 2011 that he would give judgment in proceedings 2011/54710 at 10 am today, 21 October 2011, the matters having been argued before his Honour on 26 and 27 September 2011 with additional written submissions being filed thereafter.

4. Mr Goodridge, the applicant, is a bankrupt and the respondent is the Trustee of the property of the applicant. 

5. One of the issues before Black J is whether the Supreme Court has jurisdiction to make the order substituting the Trustee for Mr Goodridge as defendant in those proceedings under Rule 6.30 on the facts before him. It was common ground before me that the Supreme Court has jurisdiction to decide that question – that is whether it has jurisdiction to make the order under Rule 6.30 in light of the provisions of the Bankruptcy Act 1966 (Cth), especially s 27 and the definition of “bankruptcy” in section 5(1) of that Act.

6. One difficulty with the form of order that Mr Goodridge sought was that it appears from the transcript of the hearing before Black J, which was in evidence before me, that the respondent did not make the application referred to in the relief sought, but requested the plaintiff in those proceedings, Mr Barwick, to apply for such an order and the respondent supported that application.  A consequential difficulty is that Mr Barwick, not being a party to the proceedings in this Court, could not or should not be the subject of an order although it is he who made the application complained of. 

7. More fundamentally however, assuming that this Court has the jurisdiction to do so, as a matter of discretion I would not, in the circumstances before me, make an order that a party in the proceedings in the Supreme Court in which the very issue I am asked to decide has been argued over two days and is the subject of a reserved judgment, should be restrained by an order of this Court so as to require that party to withdraw an application to the Supreme Court.  As I have said it is common ground that the Supreme Court has jurisdiction to decide, whether it has jurisdiction to make the orders. 

8. A further discretionary matter is that it is doubtful that there would be utility in ordering the present respondent before me to say to the Supreme Court and to the plaintiff in those proceedings that he no longer supports the application made by the plaintiff in those proceedings. 

9. Not only am I not persuaded by the submissions of Mr Goodridge as to the consequences of a decision by Black J, adverse to his interests, but I do not and would not anticipate one way or the other what Black J’s decision will be. 

10. The order I make is that the interlocutory application be dismissed.  In my view, despite Mr Goodridge’s submissions to the contrary, there is no reason why costs should not follow the event. Any complaint by Mr Goodridge about the conduct of the proceedings before Black J and any insufficiency of the notice he had of the issues there argued are matters to be dealt with in those proceedings. 

11. I therefore order the interlocutory application be dismissed with costs.

12. I list the matter for directions before me at 9.30am on 26 October 2011.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson.

Associate:

Dated:       25 October 2011