Jackson-Grose v Official Receiver (No.2)
[2002] FMCA 291
•28 October 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| JACKSON-GROSE v OFFICIAL RECEIVER (No.2) | [2002] FMCA 291 |
| BANKRUPTCY – Further application permitted pursuant to s.178 Bankruptcy Act 1966 – not opposed – conditional permission to travel overseas with undertaking by Applicant’s husband. |
Bankruptcy Act 1966, s.178
| Applicant: | CATHERINE HELENE JACKSON-GROSE |
| Respondent: | THE OFFICIAL RECEIVER |
| File No: | MZ 1054 of 2002 |
| Delivered on: | 28 October 2002 |
| Delivered at: | Perth (by audio link to Melbourne) |
| Hearing Date: | 28 October 2002 |
| Judgment of: | McInnis FM |
REPRESENTATION
| Applicant: | Mr D Jackson-Grose – Applicant’s Husband in person |
| Solicitor for the Respondent: | Mr P Frost |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
Upon delivery of the following passports to the Respondent or its legal representative:
(i)Australian passport, KO300497 in the name of David Jackson-Grose;
(ii)United Kingdom passport 700598716 in the name of David Jackson-Grose;
(iii)Australian passport L9952699 in the name of Richard Jackson-Grose,
(iv)French passport 02AE48403 in the name of Richard Jackson-Grose;
(v)The current French passport of Catherine Helene Jackson-Grose
the Applicant be permitted to depart Australia on or before 29 October 2002 on the proviso that she return to Australia no later than
17 December 2002.The Respondent provide a copy of this order to the Australian Federal Police and it is ordered that the Australian Federal Police place the said Richard Jackson-Grose (date of birth 2 July 1994) and David Jackson-Grose (date of birth 8 October 1956) on the Australian Federal Police Watch list.
Within 48 hours of her return to Australia, the Applicant surrender her Australian passport to the Respondent, at which time the passports of Richard and David Jackson-Grose held by the Respondent shall be returned to them.
AND IT IS NOTED –
The passports referred to in Order 1 being numbers (i) to (v) inclusive hereof have already been delivered and are retained by the Respondent.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 1054 of 2002
| CATHERINE HELENE JACKSON-GROSE |
Applicant
And
| THE OFFICIAL RECEIVER |
Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
This is an audio-link hearing to deliver judgment in an application by Catherine Helene Jackson-Grose filed with the court on 11 October 2002. That application followed closely upon a judgment delivered by the court on 10 October 2002 which similarly raises the issue to be determined by this court as to whether or not a decision by the respondent to refuse permission to the applicant to travel overseas should be the subject of review by this court pursuant to s.178 of the Bankruptcy Act 1966, the applicant being made bankrupt on 27 August 2002.
In the present application, the applicant did not appear in person and has not provided any affidavit material sworn by her in support of the application, apart from a brief adoption of an affidavit sworn by her husband. The previous hearing was conducted in a similar manner with the applicant not even attending court but simply relying upon her husband to appear on her behalf and to present material to be relied upon in support of the application.
This somewhat unusual course was permitted to occur on the previous occasion on the basis of the then material before the court, suggesting two things: firstly, that the matter was a matter or urgency and, secondly, that there was some medical evidence which would suggest that the applicant was not even capable of being a deponent to a detailed affidavit to be filed in support of her application and nor capable of attending and sitting in court to hear the application being made on her behalf.
The fact that the first application arose in urgent circumstances, having been filed with the court on 4 October with the matter then receiving an initial hearing on 7 October 2002, being adjourned for further hearing on 9 October 2002, and a judgment delivered as I have indicated on 10 October 2002, to some extent causes the court some concern. That concern is aggravated by the fact that without even waiting for a further formal decision, this application was issued on 10 October 2002 and at that stage there was very little, if any, change in circumstances or additional material which would persuade this court to alter the decision which it had made on 10 October 2002.
The disquiet and concern which the court feels in relation to this matter arises in circumstances where the court remains concerned about the non-appearance of the applicant at all throughout these proceedings and remains concerned about the state of the evidence provided on behalf of the applicant, in the form of medical reports produced now to the court by way of exhibits which I shall refer to as exhibit A1, an original medical report dated 21 July 2002 from Dr Youssef, a copy of which had been before the court on the previous occasion, exhibit A2, the original of a medical report dated 30 September 2002 from Dr Mark Sweet which again had been before the court on a previous occasion, exhibit A3, a facsimile copy medical report dated 3 October 2002 which had been before the court on a previous occasion, exhibit A4, the original of a medical report dated 11 October 2002 from Dr Sweet which of course had not been before the court on a previous occasion and exhibit A5 which is an original of a medical report dated 18 October 2002 from Dr Sweet.
The fact that there are now additional medical reports is a matter which at least to some extent distinguishes the factual material before this court from the factual material which was before the court when it made the earlier decision to which I have referred delivered on 10 October 2002.
When the matter was before the court on 16 October 2002, I was then concerned that correspondence had been received from creditors and that there had been at least some degree of concern expressed about the genuineness of the need to travel and/or the material sought to be relied upon. As a practical measure, I decided on that occasion to make orders that the application be adjourned to 24 October 2002 and further ordered that the respondent should notify creditors of the applicant of the adjourned hearing date and serve by prepaid post a copy of the letter dated 15 October 2002 to Mr David Jackson-Grose – this became exhibit R1 – on or before 18 October 2002.
I further ordered that the applicant should be granted leave to file and serve an affidavit sworn by Dr Mark Sweet specifying the following on or before 23 October 2002: (a) dates of consultations with the applicant from 1 July 2002 up to and including the date of swearing of the affidavit; (b) details of current medications and dosage for the applicant and (c) whether, and if so why, the condition prevents the applicant from attending court in person.
I further ordered that any applications by creditors who have previously indicated opposition to the applicant's proposed travel should be filed and served by 4 pm on 23 October 2002 and that the respondent was to serve by prepaid post on or before 18 October 2002 a sealed copy of these orders with any affidavits in support of the application upon the creditors who had indicated objection to the proposed travel of the applicant. The respondent was to file a report of creditors dated 8 October 2002 on or before 18 October 2002.
I granted leave on that occasion to the applicant to amend the application to the extent that it would incorporate ‘nunc pro tunc’ the decision of the respondent in the letter dated 15 October 2002.
There are two matters that arise from those orders. The first is that at all times Mr Jackson-Grose has sought to appear for and on behalf of the applicant. No objection has been taken to that course. No request has been made for the applicant to appear in person and no attempt has been made by way of application to this court by the respondent to ensure attendance of the applicant in person.
I should indicate at this stage therefore that despite the disquiet and concern that the court has in relation to the non-attendance of the applicant, I am prepared to proceed with the matter on the basis that she is represented by Mr Jackson-Grose, as indeed she was represented by him on the previous occasion.
The second matter to arise from the orders which I made on 16 October 2002 is that it would be noted that I granted leave to the applicant to amend the application so that it would incorporate nunc pro tunc the decision of the respondent in the letter of 15 October 2002. Again there was no objection to that course being followed in the present case and it would appear that had I not made that order, then the application when filed on 11 October 2002 may well have constituted an abuse of process of the court in circumstances where there had not been any or any substantive alteration in the facts and circumstances that had already been the subject of a decision by the court when I delivered the decision on 10 October 2002; that is to say, by the time the application was issued on the 11th, there had not been a significant alteration in the circumstances and indeed arguably there had not been a decision made by the respondent.
No application was then made for the application to be dismissed on the grounds that it was an abuse of process. No objection was made to the order that I made on 16 October 2002 that a letter dated 15 October 2002 be the subject of an amended application and that it be incorporated and form the basis of the matter that is properly before the court at present.
That letter dated 15 October 2002 is addressed not to the applicant but to the applicant's husband. It states in part the following:
“I refer to your facsimile dated 14 October 2002 in which you have requested the Official Receiver to reconsider the decision with respect to your wife's request for permission to leave Australia”.
It then goes on to say:
“You are advised that the Official Receiver on behalf of the Official Trustee (the trustee) has considered it appropriate to grant permission to your wife to leave Australia subject to the following conditions:
·Confirmation is provided to the Official Receiver in writing of the travel dates;
·All creditors of your wife's bankrupt estate be notified by ITSA of the Official Receiver's decision and be given an opportunity to make an application to the Court to review the decision. Creditors will be given until the close of business on Wednesday 23 October 2002 to serve on the Official Receiver a copy of such an application. Should the Official Receiver receive notification from a creditor of an application to the Court to review the decision, your wife will not be given permission to leave Australia. In the event that no such applications are made by creditors, permission will be granted for your wife to leave Australia on or after 24 October 2002 and returning on or before Friday 13 December 2002, subject to her satisfying all other conditions specified in this letter;
·You arrange for your passports and your son's passports to be delivered to the trustee through the trustee's solicitor to the Australian Government Solicitor's Office;
·Your wife deliver up to the trustee (initially through the trustee's solicitor at the Australian Government Solicitor's Office) the passport not being used for this travel;
· Information be provided to the trustee of the address of your wife's parents and contact details for her whilst she is in France and after the proposed travel; and
·Your wife deliver to the trustee within 48 hours of return to Australia her current passport being used for this travel.
Should your wish to appeal the trustee’s decision to grant her conditional permission to leave Australia, application can be made to the Federal Court of Australia.”
I add, although the letter does not state it, the Federal Magistrates Court of Australia.
When the matter was before me on the previous occasion having heard the evidence I referred to the fact that the medical reports were then less than helpful in assisting the court to reach a decision in what has been regarded as an urgent decision. I still have difficulty under-standing the degree of urgency based on the medical reports but as no objection has been taken to this matter being treated as an urgent application, I am prepared to consider the matter further.
On the previous occasion, I was satisfied, however, that there was not a strong likelihood that the applicant would not return to Australia; that is, I was satisfied there was a reasonable prospect in all the circumstances that she would in fact return to Australia. I have not altered my view about that matter.
I also considered on the previous occasion that although there may be, as I found, a genuine social desire to travel overseas I was unable to then find on the material then before me that the desire to travel was medically essential. I was then unable to find that the delay to the end of the month would not coincide with an improvement in the health of the applicant to such a degree where she could at least attend and be examined at a public examination with all due allowances made for her alleged condition. I do not propose referring in this judgment to the authorities to which I previously referred in my decision of 10 October 2002, save that I simply refer to and adopt what I said about those authorities in the present judgment.
It should be noted, however, that at the time when I delivered my earlier judgment there was in fact a scheduled meeting where there was to be a public examination of the bankrupt by the end of October 2002. During the course of submissions in this application, I was told that that date had now been altered to the end of January 2003 and, it was not disputed, had been altered on the strength of medical evidence apparently supplied for and on behalf of the applicant by the applicant's husband.
Currently the matter before me has resulted in, as a consequence of the orders I made on 16 October 2002, further information from creditors. On the previous occasion there had been correspondence from Southern Cross Lawyers acting for and on behalf of creditors opposing the proposed travel by the applicant. The court prior to the further hearing of this matter received a copy of a facsimile transmission from Southern Cross Lawyers dated 24 October 2002. It is clear that that letter was received prior to other advice given to those lawyers which will become evident in due course.
On 24 October 2002 the facsimile message to which I have referred said in part:
“We act for two creditors of the bankrupt, Diane Minter and Lynette Laue, who oppose the application. Our clients have concerns that certain medical reports by Dr Mark Sweet upon which the applicant relies may not be genuine.
We enclose a copy of a fax sent to Dr Sweet yesterday. The doctor is overseas this week on a conference and we will not be able to obtain a response to our fax until he returns at the end of the week. Although our clients have not yet filed a formal appearance in the proceeding, we request that the Court adjourn this Application for one week to enable our clients to clarify the matters raised in our correspondence to Dr Sweet.”
On 24 October upon considering that item of correspondence, I decided to adjourn the matter further to 9 am on 25 October 2002. I then directed that the applicant deliver to Mr Frost, the representative of the respondent, the original of all medical reports relied upon by Dr Sweet by 4 pm that day. I further ordered that the solicitors, Southern Cross Lawyers, be permitted to appear by audio-link at the adjourned hearing and further ordered that upon delivery of the original documents referred to in the earlier order, Mr Frost should forward by facsimile those original reports, together with a sealed copy of this order, no later than 5 pm that day. That order of course was meant to say "forward to the creditors".
The court then further received another facsimile, also dated
24 October 2002, from Southern Cross Lawyers. That facsimile states the following:
“We refer to our letter faxed to the Registry this morning and confirm that having been advised that the original medical reports have been provided to the AGS today, our clients do not wish to be further heard in relation to the application by the bankrupt to travel overseas. We have notified the AGS (Mr Frost) accordingly.”
When the matter was before the court on 25 October 2002, there was no appearance for or on behalf of the creditors represented by Southern Cross Lawyers. Upon resuming the court further received an affidavit by Paul Frost sworn 24 October 2002. Effectively it indicates compliance with the orders of the court to which I have referred earlier. It further states significantly in paragraph 5 the following:
“The respondent has not received any communication from Fishburn Watson O'Brien in response to our letter of 18 October 2002.”
The state of the material then as at 25 October 2002 was that the creditors so notified by the solicitor for the respondent had chosen not to participate in these proceedings. The court further received a report to creditors dated 8 October 2002 which had been the subject of further order and it is sufficient to indicate that in general terms there appears to be disclosed in the statement of affairs 75 unsecured creditors of the bankrupt for amounts totalling $7,382,127.50. That report to creditors states:
“The bankrupt has not been interviewed and at this stage has not provided an explanation as to why the debts were incurred and in what capacity they were incurred.
It is the intention of the trustee to set down a public examination of the bankrupt and instruct its own solicitor to conduct the examination and to provide a response as to possible further action that could be taken by the trustee.”
As I have indicated, that public examination now appears on the strength of medical evidence to which I will refer presently in part to have now been adjourned to the end of January 2003. The exhibits which were received by the court as original copies of letters are of significance in this case. It is clear, however, that the applicant did not comply with the order of the court of 16 October 2002 by providing an affidavit by Dr Mark Sweet; hence to that extent the court notes there has been noncompliance with that order.
An explanation was given, again from the bar table, from the husband of the applicant which appears to be a frequent occurrence in this application, explaining that the doctor was going away to a conference and would not be able to prepare an affidavit in time. To some extent that has been addressed by the doctor in his latest report of 18 October 2002. Again no objection has been taken to the non-appearance of the doctor or the fact that he has not prepared an affidavit in accordance with the orders made by the court. Accordingly I agreed to receive as exhibits the original of his reports and do not take that matter any further.
In the medical report dated 18 October 2002, exhibit A5, the doctor states the following:
“This Medical Certificate has been prepared on behalf of Catherine Jackson-Grose aged 40 years of age.
I have been asked to address some questions raised by the Federal Magistrates Court in connection with Mrs Jackson-Grose's request for permission to travel overseas and the relevance of her current medical condition. I understand that an affidavit would be preferable but I am leaving on conference leave tomorrow to China and it is simply impossible for me to swear an affidavit before I leave. I will be away for 10 days. Under the circumstances, this letter is the best I can do.
(1)The letter written by me on 11th October providing a summary of Mrs Jackson-Grose's medical condition as at that date was prepared following a consultation with Mrs Jackson-Grose that morning.
(2)Mrs Jackson-Grose first saw doctors at this medical centre as early as April 2001 for depression.
Since then, she has seen doctors at the Surrey Hills Medical Centre for depression on 22 July 2002, 25 July 2002, 30 September 2002, 11 October 2002 and today, 18 October 2002.
(3)Mrs Jackson-Grose is currently taking 20 mg of Aropax daily.
(4)Mrs Jackson-Grose's illness is depression which does not cause any physical inability to climb steps or sit in a room. However, the medical condition is one which causes her great emotional distress and suffering – worsened by stressful situations.
She is able to travel to France because she is obviously looking forward to the whole experience. Neither the prospect of the trip nor the actual trip would be expected to have anything other than a positive therapeutic effect on her depression.
In contrast, the mere prospect of a court appearance, even as a non-participant, causes severe stress for Mrs Jackson-Grose. Exposing her to a court appearance would cause a deterioration of her condition and further delay her recovery.
I reiterate that Mrs Jackson-Grose must not participate in legal proceedings or other investigations until the New Year.
This is a perfectly normal situation for someone suffering from severe depression.”
The report to which the doctor refers dated 11 October 2002 provides a summary of the applicant's condition and I do not need to recite that letter in detail.
It is clear therefore that the court now has some updated medical information which goes beyond the medical information that was before the court when it decided this matter on 10 October 2002. It is equally clear that in the circumstances of this case, the court is still entitled to conclude that there are significant reservations which may be expressed about the ability on the one hand of the applicant to travel overseas unaccompanied with an infant child and a toddler and to also consider the non-appearance of the applicant before this court.
However, on balance I am prepared to accept the medical evidence now provided, particularly as it has been provided in the absence of objection by the respondents, and in my view it is of significance that the public examination of the applicant has now been deferred to the end of January 2003.
Applying the law to which I have referred and having regard to the updated material currently before the court, it is my view that in the circumstances the court should exercise its discretion in favour of the applicant pursuant to section 178 of the Bankruptcy Act 1966.
It would do so, however, on conditions which have already been raised in the presence of the parties and I will hear submissions in relation to those conditions at the conclusion of this judgment. Essentially, however, the conditions which are to be imposed are as follows:
(1)Upon delivery of the following passports to the Respondent or its legal representative:
(i)Australian passport, KO300497 in the name of David Jackson-Grose;
(ii)United Kingdom passport 700598716 in the name of David Jackson-Grose;
(iii)Australian passport L9952699 in the name of Richard Jackson-Grose,;
(iv)French passport 02AE48403 in the name of Richard Jackson-Grose;
(v)The current French passport of Catherine Helene Jackson-Grose
the Applicant be permitted to depart Australia on or before
29 October 2002 on the proviso that she return to Australia no later than 17 December 2002.(2)The Respondent provide a copy of this order to the Australian Federal Police and it is ordered that the Australian Federal Police place the said Richard Jackson-Grose (date of birth 2 July 1994) and David Jackson-Grose (date of birth 8 October 1956) on the Australian Federal Police Watch list.
(3)Within 48 hours of her return to Australia, the Applicant surrender her Australian passport to the Respondent, at which time the passports of Richard and David Jackson-Grose held by the Respondent shall be returned to them.
AND IT IS NOTED –
The passports referred to in Order 1 being numbers (i) to (v) inclusive hereof have already been delivered and are retained by the Respondent.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 28 October 2002
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