Lofthouse v Baxter

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LOFTHOUSE v BAXTER & ANOR [2007] FMCA 435

BANKRUPTCY – Application by Trustee seeking declarations pursuant to ss.58 and 116 of Bankruptcy Act 1966.

PRACTICE AND PROCEDURE – whether Counsel should be restrained from acting in proceeding – appropriate test – Counsel retained by Trustee purportedly received telephone request to act on behalf of Debtor.

Yunghanns and Ors v Elfic Ltd (unreported decision dated 3 July 1998, 5970 of 1997)
Farrow Mortgage Services Pty Ltd v Mendall Properties Pty Ltd and Others (1995) 1 VR
Johnson v Marriott (1833) 2 Cr and M 183, 149 ER 725
Bricheno v Thorp (1821) 37 ER 864

Applicant: DAVID JAMES LOFTHOUSE

First Respondent: PAULINE ANN BAXTER

Second Respondent: SUZANN JANET OWENS

File number: MLG 1231 of 2006

Judgment of: McInnis FM

Hearing date: 19 March 2007

Delivered at: Melbourne

Delivered on: 19 March 2007

REPRESENTATION

Counsel for the Applicant: Mr S.P. Gardiner

Solicitors for the Applicant: Aitken Walker & Strachan

First Respondent: In Person

Counsel for the Second Respondent: Dr J. Glover

Solicitors for the Second Respondent: Owens Lawyers

ORDERS

1. The application for a restraining order be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1231 of 2006

DAVID JAMES LOFTHOUSE

Applicant

And

PAULINE ANN BAXTER

First Respondent

SUZANN JANET OWENS

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. In this matter, the Second Respondent (the Bankrupt) through Counsel brought to the Court's attention this morning, when the matter was listed, a concern of the Bankrupt in relation to representation of the Applicant.  The concern expressly referred to the fact that Counsel retained for the Applicant allegedly had been telephoned by the Bankrupt, herself a solicitor, and that the Bankrupt had attempted to retain Counsel to appear in these proceedings on her behalf.

2. When the matter was raised this morning, the Court gave the parties an opportunity to file and serve affidavit material, and was prepared to entertain as an oral application dealing with the issues raised and agitated for and on behalf of the Bankrupt.  Specifically, Counsel who appears for the Bankrupt has sought an order from this Court in the form of either a direction or declaration that Counsel currently retained to appear for and on behalf of the Applicant should be restrained from doing so.

3. It is not necessary for the Court to consider in detail the power this Court may have to make such an order.  I am prepared, however, to grant leave to the extent that it is required to the Bankrupt to make the oral application this day and otherwise dispense with so much of the rules that would prevent the application being heard and determined this day. 

4. The Bankrupt, as a result of the hearing earlier this day, has affirmed an affidavit of 19 March 2007.  In that affidavit, the Bankrupt after identifying herself deposes to the following:

   “2.In approximately October, 2006, I contacted Mr Simon Gardiner, counsel for the applicant, by telephone and requested him to…