Hanson v Buloke Shire Council - [2002] FMCA 158

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HANSON v BULOKE SHIRE COUNCIL & ANOR

[2002] FMCA 158

BANKRUPTCY – Application for review of order by Registrar dismissing application seeking extension of time for compliance with Bankruptcy Notice and/or to set aside Bankruptcy Notice – application for adjournment refused – discretion – merits of application.

Applicant:

SHANE TROY HANSON

Respondents:

BULOKE SHIRE COUNCIL and AUSTRALIAN ELECTORAL COMMISSION

File No:

MZ 276 of 2002

Delivered on:

12 June 2002

Delivered at:

Melbourne

Hearing Date:

12 June 2002

Judgment of:

McInnis FM

REPRESENTATION

Applicant:

Mr S.T. Hanson in person

Counsel for the Respondent:

Mr L. Ryan

Solicitors for the Respondent:

Maddock Lonie & Chisholm

ORDERS

The application before this court filed 16 May 2002 be dismissed.
The Applicant pay the Respondent’s costs pursuant to Federal Court Rule 62 including reserved costs if any.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 276 of 2002

SHANE TROY HANSON

Applicant

And

BULOKE SHIRE COUNCIL and AUSTRALIAN ELECTORAL COMMISSION

Respondents

REASONS FOR JUDGMENT

The application before this court is by SHANE TROY HANSON (Mr Hanson) who by application filed 16 May 2002 has sought what I understand to be effectively an order that the orders made by the registrar of this court on 22 April 2002 be set aside. It is clear from the application that the applicant, who is unrepresented and as far as the court is aware, has not sought or received legal advice, has specified in his application orders that demonstrate a lack of familiarity with the practice and procedure to be followed by a court. It is my view that where an unrepresented applicant appears in these circumstances a great deal of allowance should be made to ensure that the applicant has at least the opportunity of raising the real issue of concern.
Having heard the applicant, it is my view that essentially he seeks to have the order made on 22 April 2002 set aside, and seeks to have time in which to provide further material to the court in support of his original application filed 20 March 2002 (the original application) which had been dismissed by the registrar on 22 April 2002. In the original application Mr Hanson sought orders at the time that “The time for compliance be extended by 28 days due to personal circumstances and complexity of the case” and further sought orders to set aside the bankruptcy notice no VN212/2002 (the Bankruptcy Notice).
In his original application Mr Hanson also seeks, if it became necessary to go behind the judgment and added a fourth order which for the present purposes does not appear to be relevant though he does suggest in the application that “The penalties for perjury, conspiracy and contempt be levied against the parties and the lawyers acting for the Applicant wherever applicable”. It is fair to say that the exact wording of the application is not in a form that normally would be received by the court, but the thrust of it is clear. It seems to me that when read in conjunction with the affidavit that Mr Hanson had filed and sworn on 20 March 2002 that his complaint relates to the bankruptcy notice.
It is common ground that the bankruptcy notice was dated 18 February 2002 and was served upon the applicant on 2 March 2002. The bankruptcy notice relied upon costs orders of the Victorian Civil and Administrative Tribunal (VCAT) made on 21 November 2000 which had been entered in the register of the Melbourne Magistrates Court on 21 January 2002 in favour of the Electoral Commission and the Buloke Shire Council (the creditors) whereby it was ordered that Mr Hanson should pay the creditors’ costs on a solicitor-client basis fixed at $3620. There was a further order for costs in relation to councillors, which is not immediately relevant to this application. It is clear, however, that the costs order once entered in the state Magistrates Court register on 21 January 2002 prima facie, provide a judgment which could be relied upon as a basis for the Bankruptcy Notice.
What Mr Hanson has sought in the original application before the registrar, is to extend time for compliance with the bankruptcy notice and/or seek to set aside the bankruptcy notice.
When the matter was first issued the return date on the original application was 4 April 2002. That hearing date was subsequently altered by a notice of change of listing issued by the court vacating the hearing date of 4 April 2002 and substituting for that a hearing date of 9 April 2002. On 9 April 2002 before a registrar of the court there was an appearance for the respondents to the original application and an appearance by audio link by Mr Hanson.
On that occasion the court ordered the following:
“1.That the further hearing of the application be to 22 April 2002 at 9.45 am by telephone.
2.That the applicant file and serve any affidavits on which he relies, together with a copy of the application by 16 April 2002.
3.The respondent file and serve any affidavits in reply by

19 April 2002.
4.Costs of the respondent be reserved.”
It seems to be common ground that from 9 April 2002 until the adjourned hearing date of 22 April 2002 that neither party filed any further affidavit material. What is not common ground, however, is whether or not there was any form of communication between Mr Hanson and the court. Before this court today in the application which I have taken to be one seeking to set aside orders made on

22 April 2002 dismissing Mr Hanson's original application and ordering him to pay the respondent's costs of that application, is additional material by way of applicant's submissions and an affidavit. The affidavit has not been duly sworn, but for the purposes of today's hearing the respondents have conceded that I should have regard to that document as if it were properly sworn, and further has made a concession that the applicant's submissions, which are typed and filed on 21 May 2002, could be regarded as setting out a summary of facts to be relied upon by the applicant despite those facts not being the subject of a duly sworn affidavit.
For the purpose of this application I am prepared to rely upon the material in that way and have received it and will act upon it accordingly, having made due allowance for the fact that Mr Hanson is not represented and has not been able to obtain or receive the benefit of legal advice. Relying upon the applicant's submissions to which I have referred Mr Hanson has asserted from the bar table that a copy letter, which is attached to that material marked F and dated Monday, April 15 2002, was sent to the court and in the normal course, I understand him to say, that he sent that to the court and it would have been received by the court prior to 22 April 2002. That letter suggests that Mr Hanson is unable to comply with the directions of 9 April 2002 and seek an extension of time.
An examination of the court file does not reveal a copy or an original of that item of correspondence. There are indeed other items of correspondence which I note have attached to them envelopes clearly addressed in the instance of a letter dated 25 March 2002 to the “District Registrar of the Federal Magistrates Court of Australia”, and in the case of a letter dated 5 April 2002, addressed to “The Listing Manager, Federal Magistrates Court”, both of which have been received. It is also fair to say that a further letter addressed to the “Federal Magistrates Court” dated 25 April 2002 was received. In response to that letter the court corresponded with the applicant by letter dated 30 April 2002 explaining the effect of the orders made by the registrar on 22 April 2002, and in particular explaining that after dismissing the application it was the application of Mr Hanson's that had been made and to which I have already referred and that therefore the cost order was a cost order against him and not the other way around.
In the circumstances it is said by Mr Hanson that on 22 April 2002 he did not attend the hearing. I accept for the present purposes that that is the case, and that instead on that day the respondents attended and were represented. There was no appearance for or on behalf of Mr Hanson as applicant. Orders were made then in his absence that the application be dismissed and that he pay the respondents' costs.
The thrust of Mr Hanson's application is that the court does not have sufficient information upon which it could make the orders sought at this hearing, that is, it cannot review the registrar’s decision and consider de novo the original application.
Instead, it is submitted by Mr Hanson on his own behalf that he has now finally come into possession of significant documentary material which he asserts from the bar table would provide him with sufficient material if placed in an affidavit or attached to an affidavit, on another day, could persuade the court that it should act in a manner which would be consistent with the original application to set aside the bankruptcy notice, or, as I have indicated, extend time for compliance. It is suggested that the applicant requires approximately 60 days within which to arrange for that material to be properly before the court.
In considering the application which I take to be essentially an application to provide further time and logically and consequently adjourn this application to another date to enable that process to occur, it is relevant to look at the chronology of events and relevant to consider that in this matter the original orders that were made for costs were made on 21 November 2000. The judgment that was entered in the Melbourne Magistrates Court was entered on 21 January 2002 and the bankruptcy notice issued on 18 February 2002 and served on 2 March 2002. The application by Mr Hanson was filed with the court on 20 March 2002 and the hearing dates, to which I have referred, occurred and ultimately an order of the registrar was made on 22 April 2002.
In considering the question of an application to provide further time in which material can be placed before this court it is relevant in exercising my discretion to at least analyse the material currently before the court to determine whether there is any merit in the substantive application. In my view, on the material before me at present, there is clearly no basis upon which the court acting in accordance with the law could set aside the bankruptcy notice or extend time for compliance with that bankruptcy notice. That leaves then the question of whether or not the court should further provide time in which such material in support of the application could be provided by the applicant.
In my view, the exercise of discretion in a matter of this kind must be exercised having regard to the reality of the process and procedure to be followed in the service of a bankruptcy notice. The bankruptcy notice is, in a sense, the first step to be followed based upon a judgment which has been obtained in this case and non-compliance with that bankruptcy notice within the 21-day period specified would then lead possibly to a creditor's petition by the creditors which would in turn lead to further proceedings in this court where the basis upon which the bankruptcy notice is founded could be the subject of challenge in accordance with the provisions of the Bankruptcy Act.
Hence, if time is not granted today for the applicant to provide further material, he is not as a matter of law precluded from providing that material on another occasion upon the hearing of a creditor's petition. It is relevant, in my view, to also have regard to the chronology. I am not satisfied on the material before me that there is any or any reasonable explanation as to why the applicant did not attend or attempt to attend court on 22 April 2002. Even if I were to accept that the correspondence dated 15 April 2002 was forwarded to the court, though not been found on the court file, it is clear to me from that correspondence that there is no basis upon which the applicant could conclude that the application could not proceed on 22 April 2002.
To assume that it would not proceed on that day would be to make a false assumption. It seems to me on the material before me that no reasonable effort was made then by the applicant to at least attend, whether by audio link or otherwise, on 22 April 2002. It is only upon receipt of the order dismissing the application that there seems to be some further action taken by the applicant. The applicant in the circumstances has had considerable time within which to gather together material and formulate arguments in support of an application to challenge the original judgment which is the foundation stone of the bankruptcy notice.
He has managed in the detailed submissions filed on 21 May 2002, which effectively are in a form of an affidavit, to provide in some detail a chronology of events leading up to the orders made on 22 April 2002. I am not satisfied in the circumstances that having regard to that document and the other material supporting it that having been in possession of the other material, which the applicant says he has been trying to obtain for some months, he could not at the very least have outlined in an affidavit form for the court on 22 April, and certainly for this court, the basis upon which it is said he should have the benefit of an order setting aside the bankruptcy notice or providing additional time to comply with that bankruptcy notice.
In those circumstances exercising the discretion I have it seems to me that it is appropriate that I should refuse the application to adjourn this matter further and to provide further time, certainly the period of 60 days requested by the applicant in which to file further material. It remains then to consider on the material before me whether there is any basis upon which I should set aside the order made by the registrar on 22 April 2002. In my view, even on the basis that this is a hearing de novo, having regard to the matters that I have referred to in terms of non-appearance, it is still appropriate for this court to consider the merits on a hearing de novo of the application, that is, the original application before the court.
That original application is supported by an affidavit which was sworn 20 March 2002 and in brief terms simply asserts that service of the bankruptcy notice occurred on 2 March 2002 and confirms that an application to set aside has been made. It is clear from the material that there has not been appropriate service of that affidavit or the application which was filed the same day, but nevertheless the respondents attended on the days that I have referred to. At least an opportunity was given for arguments to be advanced or other material provided in accordance with orders of the court of 9 April 2002. No further material was provided.
On the material before me it is my view that there is no basis upon which the original application can be upheld. There is no basis upon which the bankruptcy notice can be set aside, nor is there any material upon which this court should conclude that the time for compliance with that bankruptcy notice be extended or indeed that I should make orders of a kind sought in the original application. Accordingly, the application that is now before this court filed 16 May 2002 will be dismissed. I order that the applicant pay the respondents' costs pursuant to Federal Court Rule 62, including reserve costs, if any.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 12 June 2002