Johnston v Boyd, in the matter of Johnston
[2024] FedCFamC2G 1104
•5 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Johnston v Boyd, in the matter of Johnston [2024] FedCFamC2G 1104
File number(s): CAG 71 of 2023 Judgment of: JUDGE MANSINI Date of judgment: 5 September 2024 Catchwords: BANKRUPTCY – application for review of Registrar’s decision to dismiss substantive application by self-executing order – where applicant did not wholly meet filing deadlines imposed by Registrar’s procedural orders –order dismissing the proceedings be set aside. Legislation: Federal Circuit and Family Court of Australia (Division 2) (Bankruptcy) Rules (Cth) 2021 r.2.02(3)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr.2.05(4), 13.13
Federal Circuit and Family Court of Australia Act (Cth) 2021 ss. 254, 256(2)
Cases cited: FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268
Lamb v Sherman [2023] FCAFC 85
Division: Division 2 General Federal Law Number of paragraphs: 25 Date of hearing: 5 September 2024 Place: Melbourne The Applicant: Appearing in person Solicitor for the Respondent: Deutsch Miller ORDERS
CAG 71 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
IN THE MATTER OF DARYL LINDSAY JOHNSTON
BETWEEN: DARYL LINDSAY JOHNSTON
Applicant
AND: ABIGAIL BOYD
Respondent
ORDER MADE BY:
JUDGE MANSINI
DATE OF ORDER:
5 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The Registrar’s orders of 17 June 2024 dismissing the application filed 29 December 2023 be set aside.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
Judge Mansini
These are the reasons for judgment delivered and orders pronounced ex tempore on 5 September 2024, revised from transcript only to include extracts of cited documents and to make corrections of typographical errors or minor matters to reflect the intention of the Court.
At hearing, the Applicant (Mr Darryl Lindsay Johnston) represented himself appearing by video link and the Respondent (Ms Abigail Boyd) was represented by a solicitor advocate appearing in person in the Sydney Registry.
REVISED FROM TRANSCRIPT
Before the Court is an application that was filed on 1 July 2024, by which Mr Johnston seeks review of the exercise of power by a Registrar of the Court to dismiss his substantive application in this matter which order was made on 17 June 2024 (Registrar’s decision).
The representative of the Respondent neither consents to nor opposes the application for review of the Registrar’s decision.
In this context, the review essentially proceeds de novo, meaning that it is for the Court as presently constituted to consider afresh the question of whether the substantive application should be dismissed pursuant to order 6 of the 31 May 2024 orders of the Registrar: s.256(2) of the Federal Circuit and Family Court of Australia Act2021 (Cth) (FCFCOA Act) and r. 2.02(3) of the Federal Circuit and Family Court of Australia (Division 2) (Bankruptcy) Rules 2021 (Cth) (the BankruptcyRules).
Relevant context
The relevant context to the matter is as follows.
On 29 December 2023, Mr Johnston filed an originating application by which he sought a stay and/or a setting aside of a bankruptcy notice. The debt subject of the bankruptcy notice is the result of a judgment debt(s) ordered in New South Wales Supreme Court proceedings and, according to the notice, amounts to at least $101,460.36. The bankruptcy notice was issued by the official receiver on 4 December 2023 and required Mr Johnston to either pay the creditor the amount of the debt claimed or make arrangements to settle the debt within 21 days of service.
It appears, from the materials before the Court, that the bankruptcy notice was served on Mr Johnston on 8 December 2023; and, before that 21 days had expired, Mr Johnston commenced these proceedings, seeking:
(a)A stay of the bankruptcy notice until 7 days after the outcome of a New South Wales Supreme Court appeal proceeding 2023/96350, should Ms Boyd be successful in defending Mr Johnston’s appeal; or, in the alternative,
(b)An order that the bankruptcy notice be set aside on grounds that include an offsetting claim and contingent claims against Ms Boyd and unnamed third parties.
The substantive proceedings were subsequently programmed.
A Registrar of the Court made initial programming orders on 18 January 2024 by consent of the parties and, among other procedural steps, afforded opportunity for Mr Johnston to file an amended application and any additional evidence on which he intended to rely, by 9 February 2024.
Mr Johnston did not file an amended application or additional evidence by 9 February 2024.
On 21 February 2024, a Registrar of the Court made further programming orders by consent of the parties, which included that the matter would be stood over until 22 March 2024 and there would be no creditors petition in relation to the bankruptcy notice before that date.
On 22 March 2024, a Registrar of the Court made further programming orders by consent of the parties, which included that Mr Johnston was to file and serve written submissions in support of his application and any further evidence on which he intended to rely by 1 May 2024. Among other orders, the matter was fixed for hearing on 31 May 2024.
On 29 April 2024, Mr Johnston filed an application in a proceeding by which he sought that the hearing on 31 May 2024 be vacated and an extension of the time within which to file and serve his written submissions and any further evidence to 3 June 2024 being the date he sought.
On 31 May 2024, Mr Johnston sought leave to file an amended application in a proceeding. By that amended application in a proceeding, he sought to vacate the 31 May 2024 hearing, to extend the time to file and serve his written submissions and any further evidence to 28 June 2024 (proposed Order 2). And (Mr Johnston) proposed a self-executing order that his originating application be dismissed if he failed to comply with the deadline for his written submissions and any further evidence as he had proposed it.
Also on 31 May 2024, a Registrar of the Court made orders by which, relevantly and among other orders: Mr Johnston was granted leave to file his amended application in a proceeding and affidavit sworn 30 May 2024; the hearing of the originating application was adjourned to 25 June 2024; on or before 14 June 2024, Mr Johnston was to file and serve his written submissions in support of the originating application, together with all evidence on which he intended to rely; and that was order 4 subject of the present question for the Court. There was also an order 6, which has been referred to today as a self-executing order, which was in terms that:
Should the Applicant not comply with order 4 by 14 June 2024, a self-executing order in the following terms will take effect and be entered on 17 June 2024:
i. The application filed 29 December 2023 is dismissed; and
ii. The Applicant pay the Respondent’s costs of the application, including reserved costs, on a party/party basis as agreed or taxed.
The Registrar did not identify the power which was exercised on that occasion or purported to be exercised.
On 14 June 2024, Mr Johnston filed affidavits and written submissions as follows:
(a)An affidavit deposed by himself, at 1.58pm;
(b)An affidavit deposed by a Mr Christopher David Harris, at 2.40pm; and
(c)Submissions, at 7.25pm.
On 17 June 2024, a Registrar of the Court made orders (in chambers) which are subject of this application, that:
(a)The application filed 29 December 2023 is dismissed; and
(b)The Applicant pay the Respondent's costs of the application, including reserved costs, on a party-party basis as agreed or taxed.
An email communication was sent to the parties on that same day which was not read on transcript but is extracted in full for purposes of these written reasons:
On Friday 14 June 2024, the following documents were received by the Registry by email at the following times:
•Affidavit by Mr Johnston on 14 June at 1:58pm
•Affidavit by Mr Christopher David Harris on 14 June at 2:40pm
•Application in a proceeding (seeking leave to amend the substantive application) received on 14 June at 4:46pm
•Submissions received 14 June at 7:25pm.
Rule 2.05 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 provides:
(3) A document is filed when:
(a) the filing fee has been paid (or an exemption or deferral applies); and
(b) the document is accepted for filing by the Registry Manager and sealed with the seal of the Court or marked with the stamp of the Court, as required by Division 2.4.
(4) However, a document sent by fax or electronic communication, if accepted, is taken to have been filed:
(a) if the whole document is received by 4.30 pm on a day the Registry is open for business--on that day; or
(b) in any other case--on the next day the Registry is open for business.
The submissions (and application in a case) are therefore taken to have been filed on 17 June 2024 and order 6 of the orders made on 31 May 2024 is triggered.
Please note that a party may apply to review a decision of a registrar within 21 days.
Consideration
Having heard from Mr Johnston and invited the Respondent to respond, by which they have elected to neither consent nor oppose, on all of the materials before the Court I find that:
First, Mr Johnston did not strictly or wholly comply with order 4 of the 31 May 2024 orders of the Registrar, because his written submissions were not filed or accepted for filing in accordance with rule 2.05(4) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (FCFCOA Rules) in that the whole document was not received by electronic communications by the Registry by 4.30pm on 14 June 2024 and therefore was taken to have been filed on the following day: see, for example, Lamb v Sherman [2023] FCAFC 85 at [35].
But in all of the circumstances, as it now for me to exercise the powers that are bestowed on this Court afresh, I would not apply order 6 of the 31 May 2024 orders to dismiss the substantive application in this matter because (as earlier referenced, absent any identification on the face of the 31 May 2024 orders of the power purported to be exercised and as neither party has identified a relevant power on inquiry of the Court) I am not persuaded that the order was validly made pursuant to a delegated power nor was it made under any residual power to make such order by consent (to the extent that exists, about which there may be a question).
In any event, it is not necessary for that question to be resolved today (as, in the de novo review before the Court as presently constituted, there is no opposition to Mr Johnston’s application to effectively extend the time for compliance with order 4 of the 31 May 2024 orders).
Accordingly, I have decided that the 17 June 2024 order dismissing the substantive application be set aside and it is now for the Court to deal with the substantive application. I propose to retain the case in my docket and to hear from the parties about the future programming of the matter.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini. Associate:
Dated: 30 October 2024
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