Klewer v Official Trustee in Bankruptcy

[2008] FCA 1418

FEDERAL COURT OF AUSTRALIA

Klewer v Official Trustee in Bankruptcy [2008] FCA 1418

Klewer v Official Trustee in Bankruptcy [2008] FMCA 274 cited

LUCY KLEWER AND ROBERT KLEWER v OFFICIAL TRUSTEE IN BANKRUPTCY

NSD 339 OF 2008

BENNETT J
11 SEPTEMBER 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 339 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

LUCY KLEWER
First appellant

ROBERT KLEWER
Second appellant

AND: OFFICIAL TRUSTEE IN BANKRUPTCY
Respondent

JUDGE:	BENNETT J
DATE OF ORDER:	11 SEPTEMBER 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The hearing listed for 16 September 2008 be vacated.

2.The matter be listed for hearing for half a day on 30 September 2008 at 2.15pm.

3.The appellants are to file and serve any submissions by way of written submissions on or before 25 September 2008.

4.The respondent is to file and serve any written submissions in reply by 12.00pm on 29 September 2008.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 339 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

LUCY KLEWER
First appellant

ROBERT KLEWER
Second appellant

AND: OFFICIAL TRUSTEE IN BANKRUPTCY
Respondent

JUDGE:	BENNETT J
DATE:	11 SEPTEMBER 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This matter involves an appeal from a decision of Raphael FM in Klewer v Official Trustee in Bankruptcy [2008] FMCA 274. The appeal is listed for hearing on Tuesday 16 September 2008. The appellants have applied by notice of motion filed on 5 September 2008 to adjourn the hearing of the appeal. The order sought is that the hearing of the notice of appeal listed for 16 September 2008 be adjourned pending the fitness of the first appellant, Ms Klewer, to attend Court. In affidavits in support of the motion, Ms Klewer has stated that she is unable to deal properly with the hearing of the main proceedings due to her poor health. She also states that the second appellant, her son, is disabled and unable to participate in the proceedings.

2. Ms Klewer says that when she is exposed to stressful situations, such as court hearings, her chest tightens and restricts her breathing in a way similar to a cardiac event.  She states that she has been hospitalised on various occasions as a result of this condition, that she is under the care of various doctors and that she has not been able to appear or file submissions in this matter. 

3. The medical evidence presented by Ms Klewer in support of her claims describes the symptoms related by Ms Klewer to the various doctors and the findings of those doctors following their examinations of her.  It is clear from the medical reports provided to the Court by Ms Klewer that the doctors who have examined her have not been able to find any structural cardiac reasons for the symptoms that she describes. The conclusion that the various medical practitioners draw regarding Ms Klewer’s chest pains is that the symptoms seem to be stress-related or, possibly, in the case of one opinion, that they are caused by gastro-oesophageal reflux.  I note that the medical treatment for Ms Klewer’s health problems is ongoing.  There is reference to other medical problems but they are not the basis of the application for the adjournment of the hearing.

4. The medical opinions do state that Ms Klewer is not fit to attend court.  In particular, I note that a report prepared by Dr Duguid dated 29 August 2008 states that Ms Klewer ‘is not fit to undertake lengthy court proceedings and the frequent traveling [sic] to Sydney involved’.

5. I am prepared to accept that lengthy court appearances and frequent travelling to Sydney would cause Ms Klewer some stress.  However, I note that this matter has been set down for hearing for half a day. 

6. When the application to adjourn the hearing was called, Ms Klewer initially declined to take the telephone call that had been arranged to effect her appearance.  After Ms Klewer agreed to take the call, I asked her whether she felt that she could make her submissions in writing rather than in person, thereby making it unnecessary for her to travel to Sydney or to appear in Court in person.  Ms Klewer declined to provide a clear answer to that question and hung up the telephone. 

7. It follows that I was unable to gain further assistance from Ms Klewer in relation to a proposed course of action for dealing with this matter.  Ms Klewer had advised my chambers that she would have some legal assistance in respect of this hearing of the notice of motion but there was no appearance from any legal advisor on her behalf.

8. I note that, on 6 May 2008, I had ordered the appellants to file and serve written submissions in relation to their appeal by 26 August 2008.  The length of time provided for was to take account of the medical difficulties then asserted by Ms Klewer in May.  To date, no written submissions have been filed by the appellants. 

9. The respondent was ordered to file and serve written submissions by 9 September 2008.  That order has been complied with.  It follows that the appellants are aware of the submissions to be advanced by the respondent at the hearing.

10. The course that I propose to adopt is that foreshadowed to Ms Klewer during the time that she remained on the telephone.  That is, that the appeal, which she and her son have brought, proceed by way of written submissions on their behalf.  As I said to Ms Klewer, if there is any matter that I wish to explore in greater detail at the hearing, I can contact her by telephone and ask her to expand upon any matter that remains unclear from those submissions.  Should Ms Klewer feel able to attend Court, either in person or by telephone, to make oral submissions regarding the appeal, then she would remain free to do so.

11. The appellants’ notice of motion does not include a finite timeframe for which the adjournment of the hearing of the notice of appeal is sought.  However, I note that in Ms Klewer’s affidavit of 10 September 2008, she requests that ‘the matter be listed for mention on or after 3 January 2009’.  I decline to adjourn the matter for so long a period.  There is no suggestion by Ms Klewer that the matter be given a hearing date in the foreseeable future.  I will, however, vacate the hearing date of 16 September 2008 in order to give the appellants some further time to prepare written submissions.  Accordingly, the orders that I will make are:

    1.That the hearing date of 16 September 2008 be vacated.

    2.That the matter be listed for hearing for half a day at 2.15pm on 30 September 2008.

    3.That the appellants are to file and serve any submissions by way of written submissions on or before 25 September 2008.

    4.That the respondent is to file and serve any written submissions in reply by midday on 29 September 2008. 

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Associate:

Dated:       16 September 2008

The Appellants were self represented.
Counsel for the Respondent:	Mr F Assaf
Solicitor for the Respondent:	Harris Freidman Hyde Page

Date of Hearing:	11 September 2008
Date of Judgment:	11 September 2008