Jones v Thomson

In the case of Jones v Thomson, the applicant, Mr Jones, sought leave to appeal a decision of the Federal Circuit Court of Australia (FCCA) that dismissed his application for summary judgment. Mr Jones, a discharged bankrupt, sought to set aside a s 139ZQ notice issued by the Official Receiver regarding a property at Waterfall Way, Dorrigo, and to make various other claims against the respondents, including the Official Receiver and the trustee of his bankrupt estate. The primary judge dismissed Mr Jones’ application for summary judgment, finding that the respondents had not failed to comply with r 2.06(2) of the Federal Circuit Court (Bankruptcy) Rules 2006 (Cth) as Mr Jones contended. The primary judge also found that, although the respondents were in breach of timetabling orders made by the Court, this breach did not warrant the exercise of the discretion under r 13.03B(2) of the FCCA Rules to grant summary judgment. Mr Jones appealed to the Federal Court of Australia seeking leave to appeal the primary judge’s decision.

The legal issues before the Federal Court of Australia included whether the respondents failed to comply with r 2.06(2) of the Federal Circuit Court (Bankruptcy) Rules 2006 (Cth) by not filing and serving a notice of appearance or notice of grounds of opposition at least three days before the hearing of the substantive application on 29 September 2014, and whether the first Court date constituted the “date fixed for the hearing of the application” within the meaning of that rule. The Court was also required to determine whether substantial injustice would result from refusing leave to appeal.

The Federal Court of Australia found 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 Bankruptcy Rules because that date was not the “date fixed for the hearing of the matter” within the meaning of r 2.06(2) of the Bankruptcy Rules. The Court found that the first Court date was not the date fixed for the hearing of the matter because the Bankruptcy Rules and FCCA Rules contemplated that the first court date will not be used finally to determine a proceeding. The Court found that the primary judge was correct to conclude that the failure to file and serve a notice of appearance or notice of opposition or affidavit three days prior to 29 September 2014 did not constitute a failure to comply with the Bankruptcy Rules. The Court also found that the trustees’ breach of timetabling orders made by the primary judge did not warrant the exercise of the discretion under r 13.03B(2) of the FCCA Rules to grant summary judgment as there was no evidence of nefarious conduct on the part of the solicitors for the trustees.

Accordingly, the Court dismissed the application for leave to appeal and ordered that the applicant pay the respondents’ costs as agreed or taxed.