Kent and Orlizki v Rahman

[2019] FCCA 1356

FEDERAL CIRCUIT COURT OF AUSTRALIA

KENT AND ORLIZKI v RAHMAN [2019] FCCA 1356

Catchwords:
BANKRUPTCY – PRACTICE AND PROCEDURE – Application for adjournment of application for review of Registrar’s order for costs – whether adequate explanation given for applicant for review not being in a position to proceed with hearing – whether applicant for review will suffer prejudice if adjournment not granted – whether respondents for review will suffer prejudice if adjournment granted – application for adjournment refused.

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr.12.02, 12.03
Federal Court Rules 2011 (Cth), rr.4.12, 4.13

Applicant: RODNEY KENT AND TIM ORLIZKI (TRADING AS “KENT ATTORNEYS”)

Respondent: FAHMID RAHMAN

File Number: SYG 3379 of 2018

Judgment of: Judge Manousaridis

Hearing date: 29 April 2019

Date of Last Submission: 29 April 2019

Delivered at: Sydney

Delivered on: 29 April 2019

REPRESENTATION

Solicitors for the Applicant: Mr T Orlizki of Kent Attorneys

Respondent in person, by telephone

ORDERS

1. The application for an adjournment made by Mr Rahman is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3379 of 2018

RODNEY KENT AND TIM ORLIZKI (TRADING AS “KENT ATTORNEYS”)

Applicant

And

FAHMID RAHMAN

Respondent

REASONS FOR JUDGMENT

(Ex tempore – revised from transcript)

1. On 26 March 2019 I made directions in this matter, one of which was to set the matter down for hearing.  The hearing was for an application for review of an order made by a Registrar of this Court on 12 February 2019. The order was made against Mr Rahman requiring him to pay $10,630.11 to Mr Kent and to Mr Orlizki.  Mr Rahman was the respondent to a creditors’ petition Mr Kent and Mr Orlizki filed with this Court.  The order was made as a consequence of the Registrar dismissing the creditors’ petition on 12 February 2019. The creditors’ petition was dismissed because the debt on the basis of which the creditors’ petition was founded had been paid by Mr Rahman on 5 February 2019. 

2. As I have said on 26 March 2019 I set the matter down for hearing and directions were made.  After the matter was set down for hearing in circumstances which I will set out in a little more detail later, Mr Rahman sent certain emails to the Court.  In any event, today being the day on which I had on 26 March 2019 set this matter down for hearing, Mr Rahman applies for an adjournment of the hearing. The reason he seeks the adjournment is for him to seek legal representation on this matter. 

3. Now, whether or not a Court grants an adjournment is a matter within the discretion of the Court.  That, of course, does not mean that the Court can arbitrarily decide whether an adjournment should be given.  There are well-established principles that a court applies when considering whether to grant an adjournment.  The overriding purpose is the interests of the administration of justice. When considering that overarching question, the Court looks usually at three matters. The first is why the party seeking the adjournment is not in a position to proceed with the matter on the date that has been fixed.  The second matter is what prejudice would be suffered by the party seeking the adjournment if the adjournment is not granted.  In determining whether there would be any prejudice, the relevant inquiry is to see what the party seeking the adjournment intends to do during the period of the adjournment. The third matter the Court looks into is what prejudice the party who opposes the adjournment will suffer if an adjournment is granted.  I will then turn to the first of those three matters, and that is the reason why Mr Rahman says he is not in a position to proceed with the hearing today. 

4. As I understood him, Mr Rahman says he is not in a position to proceed today because he was expecting an answer to correspondence he had sent to the Court after 26 March 2019 in relation to his matter being referred by the Court for pro bono assistance. The basis of that belief is said to be what I said at the directions hearing of 26 March 2019.  I have had the opportunity to go off the bench and access the recording of what occurred at that hearing, and I am in a position to state what was said about pro bono relief at that time.  It occurred this way.  I was considering what directions should be made for the setting down of the matter for hearing.  Mr Rahman said that before I set the matter down for hearing he had a request for pro bono relief. I told Mr Rahman he had no right to ask for pro bono relief and that whether or not the Court refers a matter for pro bono relief is a matter entirely for the Court.  I also said: “I can tell you if there is anything in this matter that requires pro bono relief, a referral will be made, but at the moment there is no reason why the matter should not be set down for hearing”.  I then made directions, as I have said before, including setting down the matter for hearing on 29 April 2019.

5. At 5.47 pm on 26 March 2019, the Court received an email from Mr Rahman.  I will in due course mark the emails to which I will be referring.  It was addressed to the associate of Judge Manousaridis and it stated:

   I rely on your compassion to assist me in my time of need.  Currently, I am unemployed and financially distressed and managing my health problem with my fractured right foot.  I now beg for your assistance in relation to my request for legal assistance under rules 4.12 to allow me to secure legal representation for the interests of justice.  As a layperson, I am wholly reliant upon my proposed counsel’s instructions to proceed with the matter.

6. That email was brought to my attention, but I considered that it was not appropriate that I or my associate should enter into correspondence with Mr Rahman, particularly having regard to the fact that I thought I had made it clear to him that he, like every other litigant, had no right to ask for pro bono relief.  There then followed an email of 17 April 2019, again addressed to the associate of Judge Manousaridis.  It states:

   I am just following up the email that I sent you on Tuesday, 26 March 2019 5:47 pm (see below).  I intend to file a stay in respect of that costs order and/or file evidence with affidavit in reply on which I intend to rely upon.  I am a layperson that is wholly reliant upon a legal person.  Your urgent attention to this matter is very much appreciated.

7. Again, that email was brought to my attention, but for the reasons I have already given I decided that it was not appropriate that the Court should enter into correspondence with the applicant.  There then followed an email of 23 April sent at 8.07 pm.  This time it is addressed to the registrar and it is as follows:

   (1)On 26 March 2019, his Honour Judge Manousaridis made certain orders in relation to set down for hearing at 10.15 am on 29 April 2019.

   (2)One order made was to give liberty to the parties to apply as the circumstances warrant.

   (3)The review applicant now seeks to exercise the liberty to apply and thus the matter to be deferred to find his legal representation as his requests for pro bona has not been actioned yet.

   (4)The relief applicant is a layperson and he is wholly reliant upon a legal person.

   (5)The review applicant intends to file a stay application in respect of that costs order and/or file evidence with affidavit in reply on which he intendeds to rely on.

8. That email, too, was brought to my attention, but for reasons I have already given I considered it not appropriate for the Court, and certainly not for me or my associate, to enter into correspondence with Mr Rahman. Mr Rahman then sent another email of 26 April 2019 addressed to the Registrar which stated:

   I am just following up the email that I sent you on Tuesday, 23 April 2019 (see below).  I look forward to your urgent reply as the matter is currently listed on 29 April 2019 at 10.15 am.

   Again, that email was referred to me, but for reasons I have already given I considered it not to be appropriate for the Court to enter into correspondence with Mr Rahman. 

9. Mr Rahman, as I understood him, submitted that he understood that those emails constituted a request and he believed that until such time as a definitive answer was given by the Court that his matter would not be referred for pro bona relief, then there was a possibility that the Court would refer the matter for pro bono relief.

10. It is difficult for me to accept that it was reasonably open to Mr Rahman to actually believe that the Court would be considering his request for pro bono relief in circumstances where I think in no uncertain terms I told him that he did not have a right to ask for pro bono relief. My not being satisfied it was reasonable for him to have the belief he claims to have had is further supported by the fact that in one of his emails Mr Rahman referred to a r.4.12. That appears to be a reference to r.4.12 of the Federal Court Rules 2011 (Cth) (FC Rules), which empowers the Court to refer a party to a lawyer for legal assistance. There is also r.4.13 of the FC Rules, which provides that a party is not entitled to apply to the Court for a referral under r.4.12. Similar rules apply under the Federal Circuit Court Rules 2001 (Cth) (FCC Rules) and they are to be found in Part 12. The equivalent of r.4.13 of the FC Rules is r.12.03 of the FCC Rules, which states that a party is not entitled to apply to the Court for a referral under r.12.02. So I am not satisfied that the belief Mr Rahman had was one that he could reasonably have held. I am not going to make a finding that he did not actually hold that belief. It is not necessary for me to make that finding and, given the fact that he made that statement not on oath and without there being any cross-examination.

11. In any event, Mr Rahman made, from what he told me, no other attempt to obtain legal assistance. This statement, again not on oath, must be seen in light of another matter which Mr Rahman disclosed to me which, to a very large extent, undermines his claim for an adjournment. There are proceedings in the District Court of New South Wales which Mr Rahman has commenced which are, in a sense, related to the debt which was the subject of the creditors’ petition. That debt constituted two judgments that had been entered following the issuing of, at least in one of the judgments, a costs certificate.  The costs certificate is the subject of challenge in the District Court, and Mr Rahman has informed me that he has, in fact, a lawyer representing him in the District Court proceedings.  It is therefore somewhat mysterious that Mr Rahman has a lawyer in the District Court proceedings, but not here, and he comes to this Court saying that he expects or believes the Court will be considering referring the matter for pro bono relief. 

12. The upshot of the first of the three matters I must consider is I am not satisfied Mr Rahman has given a reasonable explanation why he is not in a position to proceed with the hearing today.  I then turn to the second of the matters, and that is what prejudice Mr Rahman will suffer if I do not grant the adjournment.  

13. One item of potential prejudice is that Mr Rahman will be deprived of the opportunity to obtain legal representation. Now, the difficulty here is to assess the chance Mr Rahman has of obtaining legal representation if the matter is adjourned, and I should add he has said he wanted an adjournment of one month.  On the one hand, he put it on the basis that he has no money.  The only asset he has, he says, is a car.  Now, that assertion is not based on evidence, but if that was supported by evidence, the appropriate assessment will be that Mr Rahman would have a very low chance of obtaining any legal assistance. Whether he would have any chance of obtaining pro bono assistance is a little more difficult to assess, but that assessment needs to be made by what is in dispute, which is simply a dispute about whether an order for costs ought to have been made. It would seem to me difficult to imagine that that would excite pro bono assistance when one would expect that there would be more needy cases. In any event, what is relevant is that Mr Rahman has legal representation in the District Court, and it is unexplained why in those circumstances Mr Rahman is in the position he says he is where he has to look for pro bono relief. 

14. Another aspect that is relevant is this.  In the course of his application for an adjournment, Mr Rahman articulated, in my view quite clearly, the ground on which he says the Registrar should not have made a costs order, and that ground is that a costs order is based on the payment of a judgment debt that Mr Rahman disputes and which he is seeking to set aside in the District Court proceedings.  He indicated to me that he had case law on which to rely in support of his case.  That indicates to me that even if an adjournment were not granted, Mr Rahman would be in a position to articulate the case he wants to, it being largely a legal question.  So the end result of that is I am not satisfied that Mr Rahman would suffer any real prejudice if I do not grant him the adjournment.  He already has a lawyer in the District Court proceedings, and if I take him at his word that he has no money, for reasons I have already given, I think the prospects of him obtaining pro bono relief are at best speculative. 

15. Then I turn to the prejudice the applicants, Mr Kent and Mr Orlizki, will suffer if an adjournment is granted.  There will be the costs of today that will be thrown away.  In many cases, costs thrown away can be compensated by a costs order.  Mr Rahman, however, has told me he has no money, so any costs thrown away because of today’s adjournment is, on that factual scenario, unlikely to be recoverable. So on this part of the case I am satisfied that there would be real prejudice to Mr Orlizki and Mr Kent if an adjournment is granted. 

16. There is another matter that is relevant in the context of this case, and that is that the amount at stake is relatively small.  That is not to say that the costs order against Mr Rahman is not a significant amount of money to him; but the amount at stake must be measured relative to the costs that are being generated disputing about it. There is a need to maintain proportionality in deciding whether to grant an adjournment and the relatively small amount at stake is also a factor in favour against my adjourning the matter. 

17. For these reasons I am not satisfied that it is in the interests of justice to grant the adjournment that Mr Rahman seeks.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 24 May 2019