Maher, E.J. v Official Trustee in Bankruptcy

[1993] FCA 1017

/ 0 / 7 93

JUDGMENT No. ........ ........ .. I ........ ....

IN THE FEDERAL COURT OF AUSTRALIA

EXERCISING FEDERAL JURISDICTION

IN BANKRUPTCY

BANKRUPTCY DISTRICT OF THE STATE OF VICTORIA

RE:  DENIS MAHER

Bankrupt

EX PARTE:  ELIZABETH JOANNE MAHER

Applicant

AND:  OFFICIAL TRUSTEE IN BPAKRUPTCY (ASTRUSTEE OF THE BANKRUPTCY

ESTATE OF DENIS MAHERL

COURT :	NORTHROP J
PLACE :	MELBOURNE
m:	5 NOVEMBER 1993

EX TEMPORE REASONS FOR JUDGMENT

In this matter the applicant, Elizabeth

caused an application to be issued on 29 June 1993 seeking, in substance, a review of a decision to issue a summons to compel her to attend an examination under s81 of the Bankru~tcv Act 1966 and to give evidence at that examination. That examination was due to be heard in July of 1993. The application was due to come on for hearing on 7 July 1993, and on that day the matter came before Sweeney J. An order was then made that the applicant file and serve any notice of intention to amend the application of 29 June 1993 by 21 July

put on affidavit to be filed and served by 21 July 1993.

1993. In other words, she was given 14 days in which to give notice of intention to amend her application. Other orders were made that any evidence in support of the application be

Directions were glven as to answering affidavits and affidavits in reply, the giving of notices to witnesses to attend for cross-examination and a direction given that the Registrar fix the application in the contested bankruptcy hearings list.

The application came on for hearing today. The applicant has not given any notice of intention to amend her application and has not filed any further affidavits. The matter was fixed as a contested bankruptcy matter to be heard today.

The applicant now seeks an adjournment of the hearing of her application on two grounds. First, it is said that she has been unable to make the application in relation to the amendment because of lack of funds and secondly, in any event, she is unwell. On the first ground, the argument is put that if the matter does proceed today and the application fails, there is no reason why she could not make a further application to have the summons to attend to give evidence set aside on other grounds to those which are raised in the

do not express any views about it.

application as it now stands. That may well be correct and I

The trustee, the respondent to the application, is opposing the adjournment and he apparently takes this factor into account. There is an order of the Court made relating to leave to amend by adding further grounds. The time for that has passed. Nothing has been done. One would have thought, at least, that there would have been some material before the Court explaining why that was not done. The only material is by an affidavit sworn and filed thls morning by the solicitor for the applicant. The affidavit contains the following:

"That my client has not been able to have counsel briefed to prepare documents until today as she had not been able to provide the funds necessary to do so."

That is a very, very obscure paragraph. It is difficult to know what is meant by it. There is nothing there expressly saying she has had no funds or that she has funds now. It all depends upon the word, "until". In view of the fact that this is a natter that should have been known to her for some time, it should have been explained far more explicitly. In the circumstances, I am not persuaded by the applicant that there should be an adjournment of the hearing of the application based on the fact that she has not had the funds, has not amended her application and that, in any event, even if the present application is dismissed, she could come again. I refuse the application for the adjournment on that ground.

The other ground relied upon is her inability to attend today for cross-examination. To this end there has been exhibited a certificate from her medical practitioner. Strictly speaking, it is not evidence, but I am prepared to accept that she is not well today and cannot attend. But counsel for the respondent has said he does not desire to cross examine her on her affidavit and therefore there is no

need for her to be present here roday. In these circumstances, the Court refuses the application for the adjournment based upon her indisposition today.

Accordingly, the request that the hearing of the application be adjourned is refused.

I certify that this and the preceding three (3) pages are a true copy of the Ex Tempore Reasons for Judgment of The Honourable Mr Justice R.M. Northrop.

Associate:

Date:  d D * W I c143

JUDGES' CHAMBERS
FEDELYL COURT OF .4CSTRALIA
450 LITTLE BOCRICE STREET

MELBOURNE 3000

19 January 1994

MS Sonia Cornale
Records Clerk

Library and Information Services

Prizy ipal Registry

Federal Court of Australia
Level 16
Law Courts Building
Queens Square

SYDNEY NSW 2000

Dear Sonia

Re: Computerised Leqal Information Retrieval Svstem

I enclose the following judgment for inclusion in the data base of Federal Court Judgments:

Denis Maher Ex Parte: Elizabeth Joanne Maher v Official
Trustee in Bankru~tcv (As Trustee of the Bankrut~cv
Estate of Denis Maherl

No VB 1969 of 1991

The ' word processing disk containing the above judgment is

enclosed. Please return the disk to me when appro~riate.

Thank you
(-$he	Hon Gr Justice Northrop

Enc