Hopkinson and Hopkinson and Anor

[2010] FamCAFC 130

FAMILY COURT OF AUSTRALIA

HOPKINSON & HOPKINSON AND ANOR [2010] FamCAFC 130

FAMILY LAW - APPEAL – Application for leave to file application for costs of the discontinued appeal – Notice of discontinuance not immediately received by respondents – Arguments raised in notice of appeal currently before Federal Magistrate – Where Federal Magistrate’s judgment is reserved – Better course to adjourn hearing.

Bankruptcy Act 1966 (Cth)
Family Law Act 1975 (Cth)

APPELLANT: Mr Hopkinson

1^ST RESPONDENT: Ms Hopkinson

2^ND RESPONDENT: Trustee for the bankrupt estate of Mr Hopkinson

FILE NUMBER: BRC 4362 of 2007

APPEAL NUMBER: NA 60 of 2009

DATE DELIVERED: 23 June 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: May J

HEARING DATE: 23 June 2010

LOWER COURT JURISDICTION: Federal Magistrates Court

LOWER COURT JUDGMENT DATE: 3 July 2009

LOWER COURT MNC: [2009] FMCAfam 875

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Page SC

COUNSEL FOR THE 1^ST RESPONDENT: Mr Cameron

SOLICITOR FOR THE 1^ST RESPONDENT: Nathan Lawyers

COUNSEL FOR THE 2^ND RESPONDENT Ms Julian-Armitage

SOLICITOR FOR THE 2^ND RESPONDENT Gregg Lawyers

Orders

1. The matter be adjourned to 12 August 2010 at 10:00am.

2. The husband’s, wife’s and trustee’s costs of and incidental to these applications be reserved.

IT IS NOTED that publication of this judgment under the pseudonym Hopkinson & Hopkinson is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA
AT BRISBANE

Appeal Number: NA 60 of 2009
File Number:  BRC 4362  of 2007

Mr Hopkinson

Appellant

And

Ms Hopkinson

1^st Respondent

And

Trustee for the bankrupt estate of Mr Hopkinson

2^nd Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application brought by the trustee in bankruptcy asking for leave out of time to file an application for costs, the husband in these proceedings having discontinued his appeal. 

2. On 3 July 2009 Federal Magistrate Burnett made orders dismissing an application by the husband in relation to property proceedings.  The background to the matter is that the husband became the subject of a sequestration order on 11 September 2007 and his estate is managed by the trustee.

3. The Federal Magistrate concluded that pursuant to the operation of sections 58 and 116 of the Bankruptcy Act1966 (Cth), the husband had no standing and his application was incompetent. The Federal Magistrate further dealt with a number of matters raised by the husband, including a complaint alleging bias.

4. The husband instituted an appeal against the orders of Burnett FM on 31 July 2009.  Apparently, the appeal books were filed and served on 27 January 2010.

5. On 12 April 2010 the husband filed a notice of discontinuance.  The difficulty for both the solicitors for the trustee and the solicitors for the wife is that they did not immediately receive the notice of discontinuance. 

6. This morning, Mr Cameron appears for the wife.  On his application leave was granted to file an application in an appeal seeking leave out of time to file an application for costs of the discontinued appeal.  This application is similar to that of the trustee.  As I remarked during the course of the argument, in the ordinary course of things, leave would be given almost automatically.

7. There is an explanation for the delay, part of which is the fault of the appellant husband himself. These are, on first sight, matters of no real difficulty, being the claim that the trustee and the wife should receive their costs because the appeal was abandoned. 

8. Mr Page SC appears for the husband.  He tells me that he appears pro bono and that the husband is unable to be here because he is currently hospitalised. 

9. The difficulty that arises is that since the orders of Burnett FM made on 3 July 2009, there have been further hearings before the Federal Magistrate which involved, to some extent, similar arguments raised before him previously and certainly raised in the amended notice of appeal filed on 6 November 2009. The arguments relate to the standing of Mr Hopkinson in relation to his wish to pursue an application pursuant to section 79A of the Family Law Act 1975 (Cth).

10. The arguments on behalf of the husband raise some controversial matters which I do not totally understand and relate to whether the husband’s superannuation was part of the previous orders. 

11. In any event, most importantly, there is an outstanding judgment of the Federal Magistrate which may have real impact on whether or not an order for costs of the discontinued appeal should be made. 

12. The matters I have to consider are, first, the question of delay which, as I have mentioned would not be difficult, and secondly, it is necessary to consider as part of the discretion in considering an order for an extension of time the prospects of success of the order sought.

13. In my view, it is very difficult to do that in view of the matters that Mr Page has raised. It seems that both Mr Cameron and Ms Julian-Armitage agree that there is an outstanding judgment.  Ms Julian-Armitage and Mr Cameron both vigorously submitted that I should consider, at the very least, the application for leave, submitting that, in view of the history of the matter, at least that order should be made today.  In the case of the wife and, to some extent, the trustee, they were merely respondents to an appeal which has been abandoned.

14. In an abundance of caution, it seems the better course, both those applications now being before the court properly, to adjourn the applications.

15. If, on the next occasion, leave is given out of time to hear the costs application, it will be heard at the same time.  There has certainly been some delay and some potential waste of costs, time and trouble to the trustee and to the wife. As it is not possible to hear the application today for the costs, the better course would be to adjourn the application so that the court is properly informed of the outcome of the hearing before the Federal Magistrate.

16. The costs of all parties of today’s hearing should be reserved. 

17. It is impossible for me to predict when the Federal Magistrate will give his judgment, but this judgment and the orders will be sent to his chambers, which may be of some assistance. 

18. I will adjourn the matter until 12 August 2010 in the hope the Federal Magistrate’s judgment will be forthcoming. If there are any further difficulties, I would expect counsel to inform me.   

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court Justice May

Associate:

Date:  13 July 2010