Hawkins v Kingsway Group Ltd - [2009] FCA 1073

FEDERAL COURT OF AUSTRALIA
Hawkins v Kingsway Group Limited [2009] FCA 1073
PRACTICE & PROCEDURE – Application for extension of time to review Registrar’s decision – rule 2.02 Federal Court Bankruptcy Rules – inadequate or no reason given for delay – whether sufficient material exists for Court to exercise discretion to allow extension
Federal Court of Australia Act 1976 (Cth)
Bahonko v Nurses Board of Victoria (No 4) (2007) 97 ALD 721
Bahonko v Royal Melbourne Institute of Technology [2006] FCA 1325
Bishop v R (1982) 40 ALR 40
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Morres v Papuan Rubber & Trading Co Ltd (1914) 14 SR(NSW) 141
DAVID CHARLES HAWKINS v KINGSWAY GROUP LIMITED
NSD 300 of 2009
STONE J
23 SEPTEMBER 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 300 of 2009

BETWEEN:
DAVID CHARLES HAWKINS
Applicant

AND:
KINGSWAY GROUP LIMITED
Respondent

JUDGE:

STONE J

DATE OF ORDER:

23 SEPTEMBER 2009

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The application be dismissed with costs.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 300 of 2009

BETWEEN:
DAVID CHARLES HAWKINS
Applicant

AND:
KINGSWAY GROUP LIMITED
Respondent

JUDGE:

STONE J

DATE:

23 SEPTEMBER 2009

PLACE:

SYDNEY

REASONS FOR JUDGMENT

On 27 May 2009 the New South Wales District Registrar of this Court, Mr Michael Wall, dismissed an application by the applicant to set aside a bankruptcy notice. The present application was made by notice of motion filed in Court on 2 September 2009 and also by interim application filed on 21 August 2009 pursuant to r 2.01(2) of the Federal Court (Bankruptcy) Rules 2005. In either case the application is considerably out of time.
In dismissing the application the District Registrar was exercising a power delegated by the Court pursuant to s 35A(1)(h) of the Federal Court of Australia Act 1976 (Cth) and r 2.02 of the Bankruptcy Rules. Rule 2.03 of the Bankruptcy Rules provides that an application for a review of the exercise of such a power by a Registrar must be made by motion on notice within 21 days of the exercise of the power. Mr Hawkins’ notice of motion was filed more than 13 weeks after Registrar Wall’s orders. Even ignoring the requirement in r 2.03 for such an application to be made “by motion on notice”, the interim application was more than 10 weeks out of time.
Principles relevant to Court’s power to extend time
The Court’s general power to extend time is to be found in O 3 r 3 of the Federal Court Rules. It is a wide power that permits the Court to extend or abridge the time before or after the time expires, at the discretion of the Court. In Bishop v…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] FCA 1073
Decision Date: 23 SEPTEMBER 2009

CaseChat Overview and Summary

In the matter of Hawkins v Kingsway Group Ltd, the applicant sought an extension of time to appeal a decision of the District Registrar, which had dismissed his application to set aside a bankruptcy notice. The case was heard by the Federal Circuit Court of Australia. The primary legal issue before the court was whether the applicant, Mr Hawkins, was entitled to an extension of time to appeal the District Registrar's decision. The court also needed to consider the merits of Mr Hawkins' application for an extension, as well as the likelihood of success if the extension were granted.

The court examined the reasons for the delay in seeking the extension and found that the delay was significant and the explanation provided was inadequate. Additionally, the court noted that Mr Hawkins had already made an application to set aside the bankruptcy notice or extend time for compliance with it, which was dismissed on 17 July 2009. As this application was made after the time to seek review had expired, the court found that any subsequent application had little chance of success. The court concluded that the discretion to extend the time allowed under r 2.03 of the Bankruptcy Rules should not be exercised in Mr Hawkins' favour.

Consequently, the application was dismissed with costs. The respondent, Kingsway Group Ltd, has a judgment debt in their favour, following orders made by Fullerton J in the Supreme Court. No order staying her Honour's decision has been made. Therefore, the respondent is entitled to pursue this judgment without further delay.

Orders

Orders of the court

1. The application be dismissed with costs.

Note:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

STONE J

The extent of the delay in seeking an extension of time and the paucity of the explanation of that delay would be a sufficient ground, in my view, to refuse an extension of time. In addition, however, a further obstacle confronting Mr Hawkins is that his application, should an extension of time be granted, has little if any chance of success. This is because on 17 July 2009, after the time to seek review of the District Registrar’s decision had expired, Mr Hawkins made a further application to set aside the bankruptcy notice or to extend time for compliance with it. That application was dismissed by Registrar Hedge on 29 July 2009, following a hearing at which Mr Hawkins was represented by counsel. Conclusion For the reasons given above I am not satisfied that the Court’s discretion to extend the time allowed under r 2.03 of the Bankruptcy Rules should be exercised in the applicant’s favour. In consequence of orders made by Fullerton J in the Supreme Court the respondent has a judgment debt in his favour. No order staying her Honour’s decision has been made. In the circumstances the respondent is entitled to pursue this judgment without further delay.

Ratio Decidendi

Legal Principle Established

Established by: STONE J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 300 of 2009

BETWEEN:	DAVID CHARLES HAWKINS Applicant
AND:	KINGSWAY GROUP LIMITED Respondent

JUDGE:	STONE J
DATE OF ORDER:	23 SEPTEMBER 2009
WHERE MADE:	SYDNEY

JUDGE:	STONE J
DATE:	23 SEPTEMBER 2009
PLACE:	SYDNEY