Jones v Thomson
[2016] FCCA 687
•3 March 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| JONES v THOMSON & ANOR | [2016] FCCA 687 |
| Catchwords: PRACTICE & PROCEDURE – Application for summary judgment – whether a first Court date constituted a hearing – default of party – conduct by defaulting party – discretion – application for summary judgment dismissed. |
| Legislation: Bankruptcy Act 1966 Federal Circuit Court (Bankruptcy) Rules 2006 (Cth), r.2.06 |
| Rothnie v St John of God Hospital [2014] FCCA 159 Shrestha v Minister for Immigration & Border Protection (2015) 229 FCR 301; [2015] FCAFC 87 |
| Applicant: | RICHARD JONES |
| First Respondents: | JASON PORTER PAUL GERARD WESTON |
| Second Respondent: | FRASER THOMSON |
| File Number: | SYG 2492 of 2014 |
| Judgment of: | Judge Smith |
| Hearing date: | 3 March 2016 |
| Date of Last Submission: | 3 March 2016 |
| Delivered at: | Sydney |
| Delivered on: | 3 March 2016 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitor for the Respondents: | Mr J. Bamford, Bamford Lawyers |
ORDERS
The applicant’s application in a case filed on 28 November 2014 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2492 of 2014
| RICHARD JONES |
Applicant
And
| FRASER THOMSON |
Second Respondent
| JASON PORTER PAUL GERARD WESTON |
First Respondents
REASONS FOR JUDGMENT
(Delivered Ex Tempore & Revised)
Background
The substantive proceedings in this matter were commenced by the filing of an application on 8 September 2014. That application had on it the “time and date for hearing” as 10:00am on 29 September 2014.
On that day, the matter came before Registrar Segal. The applicant appeared by telephone, and the first respondents were represented by Mr Bamford. Mr Bamford gave evidence, which I accept, that he handed to the registrar on that day, a document entitled “Form 5 Bankruptcy Rules” dated 29 September 2014 and signed by him. I accept that because it was stamped on that day as having been filed in the Federal Circuit Court. Unfortunately, it was not, in fact, filed. It never made it onto the Court file and has not since been filed. Mr Bamford did not at that time serve the document upon Mr Jones, although Mr Jones now has a copy of it, as it was annexed to a copy of Mr Bamford’s affidavit in this application which was served on Mr Jones.
On 28 November 2014, the applicant filed an application in a case seeking orders for summary judgment on the basis of an alleged failure by the respondents to comply with the Court’s Rules, in particular the Federal Circuit Court (Bankruptcy) Rules 2006 (Cth). As this is a matter that is governed by the Bankruptcy Act 1966 (Cth), r.2.06(2) of the Bankruptcy Rules apply:
A person who intends to oppose an application or petition must, at least 3 days before the date fixed for the hearing of the application or petition or, with the leave of the Court, at the hearing:
(a)file a notice of appearance in accordance with Form 4; and
(b)file a notice in accordance with Form 5 stating the grounds of opposition; and
(c)file an affidavit in support of the grounds of opposition; and
(d)serve the notices and supporting affidavit on the applicant.
(Emphasis added)
Rule 13.03B(2) of the Federal Circuit Court Rules 2001 (Cth) provides that if a respondent is in default, the Court may, amongst other things, give judgment or make any other order against the respondent. That is not an order that is ordinarily made for simple breaches of the Rules or even of the timetable set by directions. In Rothnie v St John of God Hospital [2014] FCCA 159, Judge Lucev, having set out the principles to be applied in such an application for such an order, said that the exercise of the discretion is not commonplace. In that case, his Honour refused to make an order where the default, although not unimportant, was simple; the costs orders were extremely modest; the matter was well-advanced; and, there was a lack of or limited prejudice to the respondent.
The applicant in this application is seeking summary judgment under r.13.03B relies not only on alleged failure to comply with r.2.06(2), but also the failure by the respondents to comply with orders of Registrar Segal made on 1 December 2014 to file any further affidavits in relation to the application for summary judgment, and also the orders made by me on 20 November 2015 to file any evidence in respect of that application.
Consideration
The first question is whether there has been noncompliance with any Rules. The first asserted noncompliance, that is, with r.2.06(2) of the Bankruptcy Rules, has not occurred. That is because that rule, properly understood, refers to the date fixed for final hearing of an application, rather than to the first Court date or, in fact, to any directions hearing in respect of an application, whether it be a substantive application or interim application.
In that respect, I note that r.10.01 of the Court’s Rules, which deals with the first Court date, relevantly provides:
(1)At the first court date, the Court or a Registrar is to give orders or directions for the conduct of the proceeding.
(2)Without limiting subrule (1), the Court or a Registrar may hear and determine all or part of the proceedings.
…
Rule 10.03, however, is also apposite. It provides that:
At the first court date the Court or a Registrar may:
(a)fix a date for final hearing; or
(b)direct the parties to arrange with the Registrar a date for final hearing; or
(c)fix a date after which either party may request a date for final hearing; or
(d)remove the matter from the list.
In Shrestha v Minister for Immigration & Border Protection (2015) 229 FCR 301; [2015] FCAFC 87 at [61], the Court had regard to the Court’s Rules, and in particular rr.10.01 and 10.03, and noted that the latter contemplated that the first Court date will not be used finally to determine a proceeding.
In my view, in those circumstances, what occurred on 29 September 2014 was not a date fixed for the hearing of the matter within the meaning of r.2.06(2) of the Bankruptcy Rules. That is so even though the application form itself suggests that the application may be heard or that directions may be given for further conduct of the hearing or that any application for interim orders may be heard. Those matters accurately reflect that there is a power in the Court to do any of those things, but no more.
The fact that there is a power does not suggest that the first Court date falls within the description of r.2.06 of the Bankruptcy Rules of the date fixed for the hearing. For those reasons, I find that the failure to file either a notice of appearance or a notice of opposition or affidavit three days prior to 29 September 2014 was not a failure to comply with the Rules, and so in that respect, the respondents were not in default.
The orders made on 1 December 2014 included that the applicant on each interim application file and serve any further evidence in support by 19 December 2014 and further, that the respondent on each interim application file and serve “any evidence” by 30 January 2015.
The reference to “further evidence” or “any evidence” in those orders, however, does not mean that a failure to file evidence at all means that there was failure to comply with the directions. Such a direction is simply focused on giving a party liberty to do a certain matter within a particular time. If no affidavits are filed, then the ordinary consequence, subject, of course, to all the circumstances, is that affidavits filed outside of that time may not be relied on. In those circumstances, the failure by the respondents to file any affidavits by either 19 December 2014 or 30 January 2015 were not, in my view, a breach of the directions made by the registrar.
The orders made by me on 20 November 2015 were to the same effect. However, unlike the earlier directions, affidavits were filed outside of the time allowed by those orders, and therefore the respondents were in breach of those orders. The orders were that the respondents file and serve any evidence in relation to the applicant’s application for default judgment by 22 January 2016. The respondents filed affidavits on or about 18 February 2016 and 25 February 2016, well outside the time allowed. In that respect, then, the respondents were in breach of the timetables. It is an interesting point as to whether an application filed in November 2014 can rely upon events that occur some 15 months later. Nevertheless, I assume in favour of Mr Jones that they can. I find on that basis that there was default by the applicant.
The next question is whether I should exercise the discretion under r.13.03B of the Court’s Rules to give summary judgment on the basis of that default. Mr Jones relies upon the general conduct of this matter by the respondents to indicate excessive delay to the extent that there appears to be, if I can summarise it this way, an intent to avoid the final determination of this matter in a timely and efficient matter.
While failure to comply with directions is, in my view, ordinarily deplorable, even though some excuse has been given, I do not think the evidence suggests that there has been sufficient delay as suggested by Mr Jones to warrant the exercise or the power to grant summary judgment.
I note in particular that the delay in this matter has really been caused by matters outside of the conduct of the matter by the respondents. The delay can be briefly put as follows. After the orders made on 1 December 2014, the matters came before a registrar for further directions on 9 February 2015. At the time, the matter was listed before a Judge of this Court, again for further directions. However, on that date, the Judge did not make directions but dismissed the application, together with the application for summary judgment. The applicant sought leave to appeal from that judgment, was granted leave, and, on 29 June 2015, Katzmann J in the Federal Court set aside the orders made by Judge Driver and remitted the matter to this Court for determination. On 19 August 2015, Judge Driver recused himself from the matter, and the matter was then passed to the next judge in the docket according to the docket system. That was Judge Emmett. On 21 October 2015, Judge Emmett transferred the matter to the next judge, being Judge Manousaridis. On 11 November 2015, Judge Manousaridis recused himself, and the matter came before me for directions on 20 November 2015. At that time the applications in a case filed by the parties were set down for hearing today.
As can be seen from that brief history, the bulk of the delay in this matter has in fact been caused by a judgment given in circumstances where the final determination was not expected and so was set aside by the Federal Court, and subsequently by the recusal of a number of judges. It is sufficient to say that I do not consider that any of that delay has been caused by the conduct of the respondents.
Additionally, from all the material relied upon in this application by Mr Jones, I do not see that there has been any nefarious conduct by the solicitor for the respondents sufficient to warrant the granting of summary judgment.
Conclusion
For all of those reasons, I dismiss the applicant’s application.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 31 March 2016
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