Jones v OFFICIAL RECEIVER and Anor (No.5)

[2017] FCCA 1627

FEDERAL CIRCUIT COURT OF AUSTRALIA

JONES v OFFICIAL RECEIVER & ANOR (No.5) [2017] FCCA 1627

Catchwords:
BANKRUPTCY – Application to set aside 139ZQ notice – hearing adjourned part-heard due to medical episode suffered by applicant – non-appearance of applicant on the next occasion – provision of medical certificate by the applicant – whether medical certificate was satisfactory for non-appearance – certificate deemed unsatisfactory – application dismissed.

Legislation:

Bankruptcy Act 1966

Applicant: RICHARD JONES

First Respondent: OFFICIAL RECEIVER

Second Respondent:

JASON PORTER

PAUL GERARD WESTON

File Number: SYG 2492 of 2014

Judgment of: Judge Smith

Hearing date: 12 April 2017

Date of Last Submission: 12 April 2017

Delivered at: Sydney

Delivered on: 12 April 2017

REPRESENTATION

Solicitors for the Applicant: No appearance by or for the applicant.

Counsel for the Respondents: Mr A. Spencer

Solicitors for the Respondents: Bamford Lawyers

ORDERS

1. The application be dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant pay the costs of the respondents as taxed.

3. The parties have liberty to apply in regards to order (2) above on 2 days’ notice.

4. The cross-claim be set down for hearing at 10:15am on 9 May 2017.

5. The respondents notify in writing by 19 April 2017:

   A)The applicant of:

   a)the orders made in Court today; and

   b)the effect of r.16.05(2)(a) of the Federal Circuit Court Rules 2001 (Cth).

   B)The second cross-respondent of:

   a)Order (4) above.

6. The costs of today in respect of the cross-claim be reserved.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2492 of 2014

RICHARD JONES

Applicant

And

OFFICIAL RECEIVER

First Respondent

JASON PORTER

PAUL GERARD WESTON

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. The matter was listed today for directions at 9.30 am.  The matter was called outside and the applicant’s mobile telephone number was called but not answered.  The applicant has not appeared, although he was in my opinion, aware that the matter was listed for today.  A medical certificate dated 11 April 2017 was provided to my Chambers by facsimile from Integral Health Armidale which reveals to me a number of things. 

2. First, the applicant was well enough to attend in Armidale a medical practitioner, Dr Russell King, in order to obtain a medical certificate (certificate). This would have required Mr Jones to undertake some amount of travel. 

1. Secondly, the certificate itself was unsatisfactory.  It says only, “Mr Richard Jones has a medical condition and will be unable to appear in court or receive court documents from 11/04/2017 to 12/05 2017 inclusive.”  It does not indicate any logical connection between the medical condition and apparently the applicant’s unfitness to appear in Court or receive court documents.  Further, it does not give an opinion that the applicant was unable to receive a telephone call, or to talk to anybody in connection with his case by telephone.  For that reason, I am not satisfied that there is any medical basis for which the applicant failed to appear today.

I certify that the preceding three (3) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:       17 July 2017