Hughes v Parker
[2008] FCA 1347
•28 August 2008
FEDERAL COURT OF AUSTRALIA
Hughes v Parker [2008] FCA 1347
JUSTIN OWEN HUGHES v ROBERT COLIN PARKER
SAD 115 OF 2008
MANSFIELD J
28 AUGUST 2008
ADELAIDE
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
SAD 115 OF 2008
BETWEEN:
JUSTIN OWEN HUGHES
ApplicantAND:
ROBERT COLIN PARKER
Respondent
JUDGE:
MANSFIELD J
DATE OF ORDER:
28 AUGUST 2008
WHERE MADE:
ADELAIDE
THE COURT ORDERS THAT:
1.The applicant’s notice of motion dated 7 August 2008 is refused.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
SAD 115 OF 2008
BETWEEN:
JUSTIN OWEN HUGHES
ApplicantAND:
ROBERT COLIN PARKER
Respondent
JUDGE:
MANSFIELD J
DATE:
28 AUGUST 2008
PLACE:
ADELAIDE
REASONS FOR JUDGMENT
By motion of 7 August 2008 the applicant, Mr Hughes, seeks an order under O 52 r 10(2A)(b) of the Federal Court Rules for an extension of time within which to seek leave to appeal from an interlocutory decision made by Besanko J on 25 September 2007. The notice of motion is accompanied by a draft notice of appeal and by an affidavit of Mr Parker, in which he referred to an earlier affidavit which he had filed, and to which I shall shortly refer.
The background to the motion is quite clear. On 6 September 2007 an order was made on the application of Mr Parker, the liquidator of Hokonui Enterprises Pty Ltd (Hokonui), that Mr Hughes attend for examination under s 596A and 596B of the Corporations Act 2001 (Cth) in relation to the affairs of Hokonui and that he produce at that examination, certain documents.
The examination was to take place on 28 September 2007. Material then produced by Mr Parker relating to his state of health led to the examination being adjourned both on that date and on a subsequent return date to 14 December 2007. On 14 December 2007, Mr Hughes attended for the examination and it was partly completed. An issue arose as to the production of his medical records relating to his inability to be examined from time to time. On 13 February 2008, Mr Hughes again attended for examination. At that time, he made available medical records relating to his state of health. On that occasion, the liquidator indicated that he did not wish to proceed further with the examination so the examination was brought to an end.
On none of those four occasions on which Mr Hughes was to attend, or did attend, was any order for costs made against him.
However, prior to the first return date of the examination summons, Mr Hughes applied by notice of motion of 25 September 2007 for a series of orders, including setting aside the examination order, setting aside the production order, for production of the affidavit upon which the examination order was made, and for discovery from the liquidator, as well as for an order adjourning the proposed examination then to take place from 28 September 2007. That motion was accompanied by an affidavit of Mr Hughes referring to a number of matters including other proceedings in which he was involved, the fact that the documents he was required to produce may have already been in the custody of the liquidator, having being seized in the course of an investigation, and thirdly relating to his state of health.
That motion was heard by Besanko J on 26 September 2007. The orders sought to set aside the examination, to set aside the production order, to provide a copy of the affidavit upon which the examination order was made, and to provide discovery were each refused. Reasons were given for the refusal of each of those orders.
In relation to the application for an adjournment of the examination, Besanko J referred in a little detail to the medical information then presented and ruled that the application for an adjournment should be made to the Registrar, who was to hear the examination. As I have noted, that application was subsequently made to the Registrar who was to hear the examination on 28 September 2007, and an adjournment of the examination was granted.
The motion was dismissed with costs. Subsequently those costs were taxed at $2278.10, in accordance with the procedures under O 62 r 46 of the Federal Court Rules. On 5 May 2008 an order was made under O 62 r 45(3) that the amount of the taxed costs be paid by Mr Hughes.
It is the order of Besanko J, dismissing the motion of 25 September 2007 with costs, and its implementation through the processes under O 62 r 46, which prompted the present motion. Mr Hughes says, and I understand, that he attended the examinations whenever he could and ultimately the examination has not been pursued. He has produced evidence to explain why he could not attend on the other occasions when he was to be examined, and on those occasions the examination was adjourned. That is all correct. He also says that, although it is not clearly spelled out in the affidavits, that his medical condition led to him instructing solicitors to act for him prior to the first examination date of 28 September 2007 and apparently led to the motion of 25 September 2007 in its terms. So, he says, if he had not had his medical condition, he would not have engaged a solicitor and he would simply have sent his medical reports to the Court and the matter would have been adjourned from time to time, as it in fact was.
To grant an extension of time within which to seek leave to appeal from the decision of Besanko J, it is necessary to apply the principles well settled by Decor Corporation Pty Limited v Dart Industries Incorporated (1991) 33 FCR 397. Those principles have now been followed for many years. To grant the extension of time it is necessary to show that there is sufficient doubt about the correctness of the orders which were made on the motion, and that a substantial injustice would be caused if an extension of time were not granted and leave to appeal were not granted in respect of the orders the subject of the proposed appeal.
I have taken a little time to recite the facts, to explain to Mr Hughes why, in my view, he should not be successful on the present motion.
That is simply because the substantive decisions which were made on the motion of 25 September 2007 (that is, refusing to set aside the examination and production orders, refusing to order production of the affidavit upon which the examination was ordered, and refusing to order discovery against the liquidator) are not now subject of any submission that they were incorrect. There is no reason to have any doubt that those orders were correctly made. They are the orders upon which the motion was dismissed and the costs order made. That motion was brought by Mr Hughes through solicitors, and he was represented by solicitors at the hearing of that motion. The question of the adjournment of his examination was referred to the Registrar who was to conduct the examination and the adjournment was granted.
Accordingly, I am not satisfied that the order made dismissing the motion on 25 September 2007 was attended with sufficient doubt about the correctness of the orders made to warrant the grant of an extension of time within which to apply for leave to appeal from it, or to grant leave to appeal from it. One of the essential criteria to accede to the present motion is simply not made out.
Although Mr Hughes has emphasised that he may not have engaged solicitors at all and may have simply submitted his medical evidence to the Registrar in due course on 28 September 2007, the fact is that he did not adopt that course. He took out the motion of 25 September 2007 and it did not succeed.
Although his medical condition may have led to him seeking legal assistance, he could have confined the orders sought on the motion of 25 September 2007 simply to an adjournment of the examination. He did not do so. I do not infer from the material on this application that he did not give instructions to his then solicitors to embark upon the wider challenges to the examination and production orders, or the collateral orders which were also unsuccessfully pursued. It follows that I am also not satisfied that a substantial injustice would be caused if the present application is refused.
For those reasons, the application by motion of 7 August 2008 is refused.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield. Associate:
Dated: 1 September 2008
Counsel for the Appellant: The appellant appeared in person
Date of Hearing: 28 August 2008 Date of Judgment: 28 August 2008
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