McCardle, in the matter of Roxanne Marie McCardle
[2019] FCA 550
•5 April 2019
FEDERAL COURT OF AUSTRALIA
McCardle, in the matter of Roxanne Marie McCardle [2019] FCA 550
File number: SAD 65 of 2019 Judge: WHITE J Date of judgment: 5 April 2019 Catchwords: PRACTICE AND PROCEDURE – application before the commencement of proceedings pursuant to r 7.01 of the Federal Court Rules 2011 (Cth) – whether there are circumstances of urgency – whether the orders sought are of the kind contemplated by r 7.01 to preserve the status quo pending the determination of proceedings – application refused. Legislation: Bankruptcy Act 1966 (Cth) ss 104, 139ZIO
Federal Court of Australia Act 1976 (Cth) s 37AG
Federal Court Rules 2011 (Cth) r 7.01
Date of hearing: 5 April 2019 Registry: South Australia Division: General Division National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Category: Catchwords Number of paragraphs: 16 Counsel for the Prospective Applicant: The Prospective Applicant appeared in person ORDERS
SAD 65 of 2019 IN THE MATTER OF ROXANNE MARIE MCCARDLE
ROXANNE MARIE MCCARDLE
Prospective Applicant
JUDGE:
WHITE J
DATE OF ORDER:
5 APRIL 2019
THE COURT ORDERS THAT:
1.The application is dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
EX TEMPORE REASONS FOR JUDGMENT
WHITE J:
The applicant was declared bankrupt on 31 March 2016. Her trustee in bankruptcy is Mr Johnson from the firm BCR Advisory. The applicant informed the Court today that she was discharged from the bankruptcy on 31 March 2019, that is, on the expiration of three years from 31 March 2016.
After the close of the Registry on Friday, 29 March 2019, the applicant lodged for filing with the Court an application pursuant to r 7.01 of the Federal Court Rules 2011 (Cth) (the FCR). It is that application which is presently before the Court.
Rule 7.01 provides for the making of an application, before the commencement of proceedings in circumstances of urgency and without notice to other parties, for injunctive relief or orders for the detention or preservation of property:
7.01 Order before start of proceeding
(1)If a matter is urgent, a person who intends to start a proceeding (a prospective applicant) may apply to the Court, without notice, as if the prospective applicant had started the proceeding and the application had been made in the proceeding, for an order:
(a) granting an injunction; or
(b) if the matter relates to property:
(i)for the detention, custody, preservation or inspection of the property; and
(ii)to authorise any person to enter any land, or do any other act or thing, for the purpose of giving effect to the order; or
(c)if the matter relates to the right of a prospective applicant to an amount in a fund — that the amount in the fund be paid into Court or otherwise secured; or
(d) appointing a receiver with the power of a receiver and manager.
(2)An application mentioned in subrule (1) must be in accordance with Form 12 and accompanied by an affidavit stating the facts on which the prospective applicant relies.
(3)A prospective applicant seeking an order under this rule must give an undertaking to the Court to start a proceeding in relation to the subject matter of the application within 14 days after the application has been determined.
Note: Without notice is defined in the Dictionary.
Rule 7.01 should be understood as directed to the particular circumstances to which it refers. It is not an alternate means of commencing proceedings generally in the Court.
The relief which the applicant seeks in her r 7.01 application is as follows:
1.That on an ex-parte basis there be a determination on the selected judgment debts as to whether provable or not;
2.That on an ex-parte basis there be a determination as to whether or not the bankruptcy should be annulled, if appropriate to do so;
3.That on an ex-parte basis and subject to a suppression order there be a determination as to a referral to the Australian Federal Police on the issues as disclosed by the applicant in the family law matter;
4.That on an ex-parte basis there be a referral of the registered trustee’s conduct and claims to the AFSA in the first instance, and or ASIC if deemed appropriate to do so;
5.That there be a determination on the proper and justifiable costs as allegedly incurred by the registered trustee;
6.That there be a determination as to the setting aside of consent orders in relation to an asset removed from the applicant’s superannuation fund without a lawful entitlement;
7.That the registered trustee be restrained and an injunction granted restraining him from any further contact with third parties relating to the applicant’s superannuation fund and its assets or monies owed to it.
8.That the applicant provide an undertaking as to any damages arising as a result of that injunction referred to in order 7;
9.Such further and other order as deemed appropriate in all the circumstances.
In her accompanying affidavit, the applicant deposes to her belief that the “matter should be heard ex‑parte in the interlocutory stage on provable debts because these issues are legitimate concerns before the parties are put to contentious arguments and legal costs”. She goes on to depose to matters which, as I understand it, are said to give rise to issues as to whether or not certain debts were provable in her bankruptcy, to matters which are said to warrant investigation by the police or other investigatory bodies, to matters concerning the validity of the appointment of Mr Johnson as her trustee in bankruptcy and to matters concerning the conduct of Mr Johnson. The applicant seeks a suppression order until the completion of “all investigations” and, as I have said, contends that the matter should be heard ex parte until the provable debts have been determined.
In my view, a number of matters indicate that the application should be refused.
First, with the exception of proposed Order 7, none of the orders sought by the applicant appear to be of the kind to which r 7.01 refers.
Secondly, neither the application itself nor the applicant’s supporting affidavit, disclose circumstances of urgency of the kind contemplated by the rule. On the contrary, some of the matters about which the applicant complains are matters of longstanding. The applicant herself acknowledged that some of them date back to 2012. Furthermore, the relief which the applicant seeks on the application is not directed to relieving a situation of urgency or, with the possible exception of proposed Order 7, to preserving the status quo pending the determination of proceedings. When asked during the course of her oral submissions to identify circumstances of urgency, the applicant did not identify any matter which could reasonably be said to constitute a situation of urgency of the kind contemplated by r 7.01.
Thirdly, it would not be appropriate to make any of the orders on an ex parte basis. The proper parties with respect to the relief sought by the applicant should be heard. When asked to explain why ex parte orders may be appropriate, the applicant referred principally to the fact that the issues which she wished to agitate had been ongoing since 2012 and that she thought she would be prejudiced if the Court was to hear from other parties. Whether or not the applicant would be prejudiced is not a matter which the Court can presently determine, but fundamental principles of justice indicate that the opposing party should be heard with respect to matters affecting their rights and interests. The mere fact that their being heard may result in some disadvantage to the applicant is not of itself a reason to deny them the opportunity to be heard.
Fourthly, insofar as the applicant seeks relief with respect to the bankruptcy, the debts which were accepted as proven in the bankruptcy and the conduct of the trustee, the Bankruptcy Act 1966 (Cth) itself provides, in provisions such as ss 104 and 139ZIO, for means of review of a trustee’s decision. They are much more appropriate means by which the applicant may, if so advised, pursue the claims to relief to which she says she is entitled.
Fifthly, with respect to proposed Order 2, it is pertinent that the applicant says that her bankruptcy has now been discharged.
Sixthly, insofar as the applicant seeks in paragraph 7 of her application an order in the nature of an ex parte interlocutory injunction, she has not established a proper basis for such relief: the applicant has not demonstrated urgency; based on the submissions that the Court has heard today, it does not appear that there has been the requisite disclosure of all matters bearing upon the grant of such an injunction; and, given the applicant’s status as a recently discharged bankrupt, the value of any undertaking as to damages which she may provide appears to be of doubtful value.
Seventhly, insofar as the applicant seeks orders from the Court for referral of matters to the police or other investigatory agencies, it is not necessary that the applicant have an order from the Court in order for her to be able to report to those agencies the matters which are of concern to her. It is not for this Court to direct Commonwealth agencies to undertake investigations concerning the matters which are of concern to the applicant.
Lastly, in relation to the application for a suppression order, s 37AG of the Federal Court of Australia Act 1976 (Cth) indicates the grounds upon which the Court may make a suppression order or a non-publication order. The Court must be satisfied that the order is necessary to prevent prejudice to the proper administration of justice, to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security, or to protect the safety of a person, or to avoid causing undue distress or embarrassment to a party or a witness in criminal proceedings involving an offence of a sexual nature. Clearly, some of those grounds are not pertinent in the present case. The applicant has not established that a suppression order is necessary to prevent prejudice to the proper administration of justice or for any of the other available purposes under s 37AG.
For these reasons, I am not satisfied that it is appropriate for the Court to make the orders sought by the applicant under r 7.01, and the application is dismissed.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White. Associate:
Dated: 18 April 2019
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