Jorgensen v Commonwealth Bank of Australia
[2011] FCA 1504
•20 November 2011
FEDERAL COURT OF AUSTRALIA
Jorgensen v Commonwealth Bank of Australia [2011] FCA 1504
Citation: Jorgensen v Commonwealth Bank of Australia [2011] FCA 1504 Appeal from: Commonwealth Bank of Australia v Jorgensen [2011] FMCA 767 Parties: ALAN BRADLEY JORGENSEN v COMMONWEALTH BANK OF AUSTRALIA ACN 123 123 124 File number: QUD 199 of 2011 Judge: DOWSETT J Date of judgment: 20 November 2011 Date of hearing: 20 November 2011 Place: Cairns Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 11 Counsel for the Appellant: The Appellant appeared in person Counsel for the Respondent: Mr PD Hay Solicitor for the Respondent: Legal Services, Commonwealth Bank of Australia
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 199 of 2011
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: ALAN BRADLEY JORGENSEN
AppellantAND: COMMONWEALTH BANK OF AUSTRALIA ACN 123 123 124
Respondent
JUDGE:
DOWSETT J
DATE OF ORDER:
20 NOVEMBER 2011
WHERE MADE:
CAIRNS
THE COURT ORDERS THAT:
1.the notice of objection to competency be upheld;
2.the appeal be dismissed;
3.Alan Bradley Jorgensen pay the costs of the respondent of and incidental to the notice of objection to competency and of the proceedings today; and
4.leave to file the application for leave to appeal out of time be refused.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 199 of 2011
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: ALAN BRADLEY JORGENSEN
AppellantAND: COMMONWEALTH BANK OF AUSTRALIA ACN 123 123 124
Respondent
JUDGE:
DOWSETT J
DATE:
20 NOVEMBER 2011
PLACE:
CAIRNS
REASONS FOR JUDGMENT
On 11 July 2011 a federal magistrate made an order of sequestration against the estate of Alan Bradley Jorgensen on the petition of the present respondent. At the hearing a solicitor appeared on behalf of Mr Jorgensen for the purpose of seeking an adjournment. The magistrate refused the adjournment for reasons which appear in his ultimate reasons for judgment. On 2 August 2011 Mr Jorgensen filed a notice of appeal from that decision. By that time the period for filing the notice of appeal had expired, although by only one day. On 2 September 2011 the respondent filed a notice of objection to competency and, on 4 November, filed an amended notice of objection to competency. This matter was listed for hearing on that basis.
This morning, or perhaps yesterday, Mr Jorgensen indicated that he intended to apply for an extension of time within which to appeal. The application has not yet been accepted for filing. Mr Jorgensen has filed no affidavits in support of the application, notwithstanding that the form which he used specifically states that it must be accompanied by appropriate affidavits setting out the circumstances in which the application is made. He seeks to be given a further opportunity to provide evidence in support of his application, so that I am, in effect, dealing with an application for an adjournment, perhaps a short one, in order to allow him to prepare affidavit material. There would then be the question of material in response.
Mr Jorgensen adheres to the grounds of appeal set out in the notice of appeal which was filed. They are threefold. The first is that the magistrate erred in refusing to adjourn the hearing of the petition until after the hearing of Mr Jorgensen’s application to the District Court to set aside the default judgment upon which the bankruptcy notice was based. The District Court application was to be heard two days after the hearing in the Federal Magistrates Court. The petition had been filed after the filing by the appellant of the District Court application. The second ground was that the magistrate erred in not upholding the appellant’s application to set aside the bankruptcy notice, service of which had been solely by email. The third ground was that the magistrate erred in making a sequestration order when the appellant had already formally appointed a trustee under Part X of the Bankruptcy Act.
Mr Jorgensen correctly asserts that in order to be successful on his application he must show that his grounds of appeal have some substance. He need not make them out at this stage, but he must demonstrate that there is some point in extending time in which to appeal. He must also explain any delay in making the application and the reasons for not having appealed within time. I am satisfied that his failure to appeal within time was probably the result of an oversight or a misunderstanding. If the other matters to which I have referred were satisfactorily dealt with, I would be willing to extend time as he requests. However there is no explanation of his failure to make any application for an extension until today, and there is no substance in any of his grounds of appeal.
On 8 August 2011 the court sent an email to the email address specified by him in his notice of appeal, advising him that the notice of appeal was out of time, and that he would have to apply for leave. He has told me today that a copy of the letter was also sent to his solicitors. He says that he did not receive the court’s email. He says that he had abandoned that email address and not used it since September. That provides no explanation for the email not having been received in August. As I have said, he offers no explanation for his failure to apply for an extension of time until today.
Given the history of the matter I would probably not have treated that matter as decisive against his application for an extension of time if I were able see that there was any substance in the proposed appeal. However it seems to me that there is no substance in any of the three proposed grounds. I shall give brief reasons for that view. As I have said, the magistrate gave detailed reasons for refusing an adjournment, having regard to the history of the matter, and also the absence of evidence concerning a number of matters which were raised by the solicitor in his submissions. Further, although there was, in fact, an outstanding application to set aside the District Court judgment on which the petition was based, a previous application had been unsuccessful. The solicitor suggested that there was fresh evidence in support of the second application, but none of that evidence was put before the magistrate. In those circumstances, it cannot be said that in refusing an adjournment, the magistrate’s discretion miscarried. There is nothing in this ground.
The second ground concerns service of the bankruptcy notice. It was served by email. In his notice of appeal, Mr Jorgensen does not point to any formal deficiency in the way in which service was effected. In particular, he does not point to any part of the relevant regulations with regard to which he alleges non-compliance. He simply asserts that there was no attempt to telephone him or to deliver the bankruptcy notice to him or his solicitor. He points to no authority for the proposition that the bank was obliged to proceed in that way. The ground is simply not a ground of appeal. It is not couched in appropriate terms. Nothing that Mr Jorgensen has said to me today suggests that there is any reason to doubt that service was effected in accordance with the relevant regulations.
Then it is said that the magistrate erred in making a sequestration order when Mr Jorgensen had already appointed a trustee under part X. In much of the proceedings today it has been assumed that the trustee had not signed the instrument of appointment. However, the copy that was filed in the Federal Magistrates Court appears to have been so signed. Nonetheless, Mr Jorgensen’s assertion that because he had appointed a trustee, the magistrate ought not to have made a sequestration order, depends upon evidence showing that the instrument of appointment had come into effect. Section 188 provides that various things must be done before that happens. Pursuant to s 189AAA, bankruptcy proceedings are stayed only upon the s 188 authority becoming effective. Even if the appointment had been signed, and I am willing to assume for present purposes that it had been, other requirements, in particular those prescribed in s 188(2C), had also to be satisfied. There is simply no evidence of such satisfaction. Indeed, Mr Jorgensen’s solicitor appears to have suggested to the magistrate that a statement of affairs had not been received at that stage. Although that does not necessarily lead to the conclusion that the trustee had not received such a document, there is no evidence that he had.
In some circumstances, I would have been inclined to allow Mr Jorgensen an adjournment in order to put in affidavit material expanding upon the rather skimpy material concerning this matter. However his solicitor did not put to the magistrate that there was an arrangement in place pursuant to s 188, only that Mr Jorgensen was proposing to enter into such an arrangement. It does not seem to me that I would be justified in allowing an adjournment in order to provide evidence that there was, at the time of the sequestration order, an effective arrangement pursuant to s 188 when, in fact, that matter was not asserted before the magistrate, and there is no clear evidence that it was so. The proceedings were conducted upon the basis that there was no such arrangement in place. The magistrate decided the matter on that basis. In the circumstances, I am not willing to adjourn the matter in order to allow Mr Jorgensen to put in further evidence.
It follows that the notice of objection to competency must be upheld. The appeal is incompetent and must be dismissed.
I order that Alan Bradley Jorgensen pay the costs of the respondent of and incidental to the notice of objection to competency and of the proceedings today. I refuse leave to file the application for leave to appeal out of time.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett. Associate:
Dated: 3 January 2012
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