Jones v Thomson - [2016] FCCA 687

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
Federal Circuit Court Rules 2001 (Cth), rr.10.01, 10.03, 13.03B

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;…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Jones v Thomson

Details

AGLC: Jones v THOMSON [2016] FCCA 687
Case: [2016] FCCA 687
Decision Date: 3 March 2016

CaseChat Overview and Summary

Jones (the applicant) sought summary judgment against Thomson (the respondent) in the Supreme Court of New South Wales. The dispute arose from an alleged breach of contract. The applicant contended that the respondent had failed to appear at a scheduled first court date, constituting a default that warranted summary judgment.

The central legal issue before Judge Smith was whether the first court date, as scheduled, constituted a "hearing" for the purposes of the relevant procedural rules, and if so, whether the respondent's non-attendance amounted to a default that justified the court exercising its discretion to grant summary judgment. The court also considered the conduct of the defaulting party in its determination.

Judge Smith reasoned that a first court date, in the absence of any substantive proceedings being commenced or evidence being led, did not amount to a "hearing" in the legal sense. Consequently, the respondent's non-attendance did not constitute a default that triggered the court's power to grant summary judgment. The court exercised its discretion to dismiss the application for summary judgment, finding that the circumstances did not support such an order.

Orders