Mahmoud v The Owners' Corporation Strata Plan 811 (No.2)
[2006] FMCA 1711
•25 October 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MAHMOUD v THE OWNERS' CORPORATION STRATA PLAN 811 [No.2] | [2006] FMCA 1711 |
| BANKRUPTCY – Annulment of sequestration order. PRACTICE & PROCEDURE – Adjournment – factors for consideration – case management. |
| Federal Magistrates Court Rules 2001 (Cth), r.1.03 |
| Maxwell v Kuen [1928] 1 KB 645 Myers v Myers [1969] WAR 19 State of Queensland and Anor v JL Holdings Pty Ltd (1997) 189 CLR 146 |
| Applicant: | TOSSON HUSSEIN MAHMOUD |
| Respondent: | THE OWNERS’ CORPORATION STRATA PLAN 811 |
| File Number: | SYG 1420 of 2006 |
| Judgment of: | Lucev FM |
| Hearing date: | 25 October 2006 |
| Date of Last Submission: | 25 October 2006 |
| Delivered at: | Sydney |
| Delivered on: | 25 October 2006 |
REPRESENTATION
| Applicant on his own behalf: | Mr T.H. Mahmoud |
| Counsel for the Respondent: | Mrs P. Koroknay |
| Solicitors for the Respondent: | David Le Page |
| Counsel for the Official Trustee: | Mr R.D. Marshall |
| Solicitors for the Official Trustee: | Sally Nash & Co |
ORDERS
The Notice of Motion is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
SYG 1420 of 2006
| TOSSON HUSSEIN MAHMOUD |
Applicant
And
| THE OWNERS’ CORPORATION STRATA PLAN 811 |
Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
Notice of Motion
I have before me a Notice of Motion by the Applicant in these proceedings. Might I say at the outset that these proceedings appear to me to be a relatively straightforward application for annulment of sequestration orders. They are proceedings which have been initiated by the Applicant, who now seeks to adjourn them for the third time.
Previous failure to comply
Various orders have been made by Federal Magistrate Barnes in this matter on 23 May 2006 and 1 August 2006. Those orders have been complied with by all concerned other than the Applicant.
Those orders, relevantly in respect to 23 May 2006, required the Applicant to file and serve evidence on which he relies in the annulment application by 30 June 2006. That was not done.
The matter was the subject of a further hearing before Federal Magistrate Barnes and, on 1 August 2006, as a consequence of that hearing, she issued further orders, including an order that the Applicant file and serve affidavit and other evidence on which he seeks to rely in relation to the application for annulment of the sequestration order by Tuesday, 15 August 2006.
The Applicant tells me today that he has appealed those orders or, at least one, or perhaps both of them. It is not immediately apparent what the current position is, except that there is no successful appeal or certainly no record of a successful appeal. He also tells me that he intends appealing, as I understand it, the orders to the High Court. Given that they are merely procedural, one suspects that he will not get far, but that is a matter for others, not me.[1]
[1] State of Queensland and Anor v JL Holdings Pty Ltd (1997) 189 CLR 146 at 173-174 per Kirby J (“JL Holdings”).
In the course of the hearing today, the Applicant has further indicated, in a manner in terrorem, that he intends to appeal my acceptance of the appearance of Counsel for the Respondent and Counsel for the Official Trustee, who in my view at this stage of the proceedings, and subject to anything that might arise in hearing the substantive annulment application, if we get that far, are quite properly appearing before me.
Factors for consideration
In determining the Notice of Motion and, in particular, the application for adjournment, I am required to afford justice to, and balance the prejudice for, all parties, not just the Applicant, but the Respondent, the Official Trustee and any creditors. I am also obliged to manage cases in this Court's list appropriately. Case management does not override any manifest prejudice, and I refer to the High Court's decision in JL Holdings.[2]
[2] JL Holdings at 154 and 155 per Dawson Gaudron and McHugh JJ, at 166 per Kirby J.
However, the Federal Magistrates Court Rules, 2001 (Cth), in particular r.1.03, require the just, efficient and economical resolution of proceedings. They do require the Court to proceed informally, but in a streamlined way, and they also provide that the parties must avoid undue delay and expense. Suffice to say that this morning, I think that I have been relatively patient in hearing the Applicant in these proceedings. However, weighing those particular considerations in relation to the adjournment, that is the procedural considerations in relation to appeal and process and case management, it is my view that it is time to get on with it and to hear the substantive application in relation to the annulment.
The Applicant, however, does not stop there but pleads certain, overwhelming in his view, time pressures and he cites a variety of time pressures that he has put to the Court. It suffices to say, in my view, that they are mainly of his own making. He has done everything, everywhere, including, it appears on the basis of what he has put today, in the Federal Court of Australia and the District and Supreme Courts of New South Wales, possibly with the New South Wales Legal Services Commission, foreshadowed an appeal in the High Court, and has corresponded with the Prime Minister. Now, the latter, of course, is completely irrelevant under the Westminster system but, in relation to all of those matters, there is nothing which prevents this Court from proceeding to hear the matter at this point in time.
Having done all of that, he has, and this is noteworthy, failed to comply with the orders of this Court. If, as he asserts, as he does assert by the making of the application and the submissions proffered today, that he has a just case - and I make no determination on that at this stage, because that is not a matter in respect of which I have heard relevant evidence - the energies that have been expended thus far might have been better invested in preparation for this case. The Applicant has chosen not to do that and, in my view, the time pressures that he speaks of are of his own making.
In any event, given the timeframe within which this Court has dealt with this matter, and I have adverted earlier to the orders made Federal Magistrate Barnes in May and August, it is, in my view, sufficient to say that he has had ample time to file and serve any affidavit evidence which he seeks to rely upon.
Respondent solicitor’s practising certificate
In relation to the application to cancel the Respondent solicitor's practising certificate that is an application which, as I understand it, was made yesterday. Until such time as there is an order of a relevant court in relation to that matter, that application is, in my view, irrelevant to these proceedings.
Objections to affidavit material
I have already upheld the objection of Mrs Koroknay for the Respondent to what is annexure A to the affidavit filed in support of the Notice of Motion (and to passages to the same effect where appearing elsewhere in the Affidavit) on the basis that it is not a business record, and is not properly proven in any way. That is the matter with respect to the disclaiming of payment and, even if I am wrong in that respect, might I say that that appears to me to be a matter for the substantive hearing and not a matter relevant to the adjournment. Similarly with annexure B to the affidavit in support of the Notice of Motion, the letter to ITSA.
In respect of annexure D, which appears to relate to the trauma which the Applicant says he has suffered, it is evident that that trauma was one which was caused by events in April or May 2006 on my perusal of the material. I have no doubt that it was traumatic at the time and that there are follow-on consequences for the Applicant. We are, now, however, several months down the track, and it suffices to say that the Applicant says that there is nothing wrong with him and, in his submissions today, allowing for the fact that he is an unrepresented Applicant, who clearly passionately believes in the cause that he puts before this Court, he has been a relatively coherent and, certainly, does not have any difficulty, in my view, in making the points that he wishes to make: on occasions in a manner which has bordered on disrespect to the Court.
Refusal of adjournment
For those reasons, and taking into account the relevant authorities,[3] I see no reason to grant the order sought with respect to an adjournment.
[3] Myers v Myers [1969] WAR 19 and Maxwell v Kuen [1928] 1 KB 645.
I have also, this morning, prior to proceedings, and before I was aware that this Notice of Motion was on foot, read the papers on the Court file and I can say that, from the Court's point of view, there is nothing untoward on the file, and I, therefore, do not propose to make any order sought with respect to an adjournment for service of various documents in relation to the second order sought in the Notice of Motion.[4]
[4] The second order sought was an order: “That the file be inspected by [Federal] Magistrate Barnes and if there are any documents or materials not served on the Applicant, then the hearing should be adjourned until he is served with the documents and time given for him to respond.”
The third order sought in the Notice of Motion[5] is not pursued and, on that basis, I dismiss the Notice of Motion.
[5] The third order sought was an order: “That [Federal] Magistrate (sic) Barnes disqualify herself because annex[ure] D of the affidavit touches heavily on the subject of feminism and the Applicant is very concerned that he would be prejudiced by [Federal] Magistrate Barnes.”
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate:
Date:
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