McGuire v Sporting Shooters Association of Australia (New South Wales) Coffs Harbour Branch Inc

[2017] FCCA 3284

FEDERAL CIRCUIT COURT OF AUSTRALIA

MCGUIRE v SPORTING SHOOTERS ASSOCIATION OF AUSTRALIA (NEW SOUTH WALES) COFFS HARBOUR BRANCH INC [2017] FCCA 3284

Catchwords:
BANKRUPTCY – Application for an extension of time pursuant to s.41(6A) of the Bankruptcy Act 1966 (Cth) – Application to set aside a bankruptcy notice pursuant to s.41 of the Bankruptcy Act 1966 (Cth).

PRACTICE & PROCEDURE – Application for an adjournment of the final hearing – application refused – final hearing part heard – second application for an adjournment of the final hearing – application refused – no appearance by the applicant at the resumption of the final hearing – application dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

Legislation:

Bankruptcy Act 1966, s.41

Legal Profession Act 2004 (NSW), s.378
Federal Circuit Court Rules 2001 (Cth), r.13.03C

Cases cited:

Padraig Christopher McGuire v Sporting Shooters Association of Australia NSW Coffs Harbour Branch Inc [2017] NSWSC 826

Applicant: PADRAIG CHRISTOPHER MCGUIRE

Respondent: SPORTING SHOOTERS ASSOCIATION OF AUSTRALIA (NEW SOUTH WALES) COFFS HARBOUR BRANCH INC

File Number: SYG 1053 of 2017

Judgment of: Judge Nicholls

Hearing dates: 30 October 2017 and 6 December 2017

Date of Last Submission: 6 December 2017

Delivered at: Sydney

Delivered on: 22 December 2017

REPRESENTATION

Applicant: In person

Counsel for the Respondent: Mr J Knackstredt

Solicitors for the Respondent: Globalex Tax & Legal

ORDERS

1. The application made on 4 December 2017 for an adjournment of the final hearing of the application made on 29 March 2017 is refused.

2. The application made on 29 March 2017 pursuant to Section 41 of the Bankruptcy Act 1966 (Cth), is dismissed for non-appearance pursuant to Rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

3. Order 2 made by a Registrar of the Court on 18 July 2017, extending the time of the Bankruptcy Notice (No. BN 212329), is vacated.

4. The applicant pay the respondent’s costs as agreed or assessed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1053 of 2017

PADRAIG CHRISTOPHER MCGUIRE

Applicant

And

SPORTING SHOOTERS ASSOCIATION OF AUSTRALIA (NEW SOUTH WALES) COFFS HARBOUR BRANCH INC

Respondent

REASONS FOR JUDGMENT

1. On 29 March 2017 Mr McGuire made an application for an extension of time within which to comply with Bankruptcy Notice BN 212329 pursuant to s.41(6A) of the Bankruptcy Act 1966 (Cth) (“the Bankruptcy Act”), and an associated application to set aside a bankruptcy notice (BN 212329) (“the bankruptcy notice”) pursuant to “s.41(6C)” of the Bankruptcy Act. [However I note that s.41(6C) goes to the issue of an extension of time for compliance with the relevant Bankruptcy Notice and not an application to set aside such notice].

2. On 6 December 2017 I made various orders in relation to this matter. The following are my reasons for those orders arising from what was said in Court on that date.

3. The application was set down for final hearing on 30 October 2017. The matter did not conclude on that date and was adjourned part-heard. The resumption of the hearing was scheduled for 6 December 2017. On 4 December 2017 Mr McGuire, filed an affidavit which in effect sought an adjournment of the resumption of the final hearing.

4. The evidence before the Court is as follows:

   a)The affidavit of Ricky Jose Lee, Solicitor, made on 19 October 2017.

   b)The affidavit of service of Lynette Gail McGuire, Retired TAFE Campus Manager, made on 30 October 2017.

   c)The affidavit of Anna Bialis, Clerk, made on 2 March 2017.

   d)Email from the respondent’s solicitor to Mr McGuire dated 25 October 2017 (“RE1”).

   e)A chain of email correspondence regarding a costs assessment (“RE2”).

   f)A letter from the respondent’s solicitor to the applicant dated 2 March 2017 (“AE1”).

   g)Examination-in-chief and cross-examination of Ms Anna Bialis.

Background

1. The bankruptcy notice which is the subject of the substantive application was issued on 1 March 2017.

2. The bankruptcy notice was issued on the basis of two judgments and orders made by the New South Wales Supreme Court on 28 February 2017 (see annexure “PCM-3” to the affidavit of Mr McGuire made on 29 March 2017 (this affidavit was not formally read into evidence and I note also that the references in the body of the affidavit is to annexure “LGM-3”)). Those judgments arose after Certificates of Determination were made by a Costs Review Panel pursuant to s.378 of the Legal Profession Act 2004 (NSW), following proceedings between the parties in the New South Wales Local Court (in which Mr McGuire was unsuccessful) (see pages 49 – 50 of annexure “DCB-3” to the affidavit of Mr David Charles Barrow of 29 March 2017 (this affidavit was not formally read into evidence)).

3. In March 2017 Mr McGuire attempted to have the orders made by the New South Wales Supreme Court set aside. On 21 June 2017, those proceedings were dismissed (see Padraig Christopher McGuire v Sporting Shooters Association of Australia NSW Coffs Harbour Branch Inc [2017] NSWSC 826).

Before the Court

1. On 6 April 2017 orders were made by a Registrar of the Court extending the time for compliance with the bankruptcy notice until 18 April 2017.

2. On 18 April 2017 the applicant’s legal representative appeared before a Registrar of the Court for the hearing of the substantive application. The Registrar made orders, which amongst other things, adjourned the hearing on the basis that the respondent did not have sufficient notice of the substantive application.

3. The parties both appeared before a Registrar of the Court on 2 May 2017. The applicant was represented by his solicitor and the respondent by counsel. On that day orders were made which, amongst other things, adjourned the hearing of the substantive application until after the hearing of proceedings in the New South Wales Supreme Court (see above at [7]). That hearing was listed for 19 May 2017.

4. On 30 May 2017 the parties again appeared before a Registrar of the Court. The applicant appeared in person following the withdrawal of his solicitor on 22 May 2017. The respondent was again represented by counsel. On this day the applicant sought an adjournment pending the determination of the New South Wales Supreme Court proceedings. The adjournment was granted.

5. The parties again came before the Registrar of the Court on 18 July 2017. The applicant appeared in person and the respondent was represented by counsel. The applicant sought to have the proceedings referred to a Judge of this Court. Orders were made which, amongst other things, referred the proceedings to me.

6. The parties first appeared before me at a directions hearing on 2 August 2017. The applicant appeared in person and the respondent was represented by counsel. I made orders giving the parties the opportunity to file and serve evidence by way of affidavit and written submissions, and set the matter down for final hearing on 30 October 2017.

7. Prior to the final hearing, on 25 October 2017, the respondent filed an Application in a Case (“AIC”) seeking to set aside a number of subpoenas filed by the applicant. The AIC was supported by three affidavits of Mr Ricky Jose Lee, solicitor, made on 17 May 2017, 4 July 2017 and 19 October 2017. The AIC was set down for hearing on the same date as the final hearing.

8. On 30 October 2017 the applicant appeared in person and the respondent was represented by counsel.

9. At the outset of the hearing, Mr McGuire made an oral application to adjourn the final hearing (“the first adjournment application”). He said he relied on his affidavit made on 28 October 2017 to support the application. However this document was not formally read into evidence.

10. Mr McGuire sought an adjournment on the basis that he required further time to allow an “investigation” by the Manager of the Costs Review Panel (who were responsible for making the Certificates of Determination on which the judgments which gave rise to the bankruptcy notice were based) into “submissions” made by him to the Costs Review Panel, that had “vanished” and were therefore not considered (“the costs assessment issue”).

11. Mr McGuire says that he only become aware of the “vanish[ing]” submissions after the New South Wales Supreme Court proceedings had concluded.

12. Mr McGuire also claimed that he had not had notice of the respondent’s AIC filed on 25 October 2017. The reason for this is that Mr McGuire was unwilling to open any emails from the respondent’s solicitor because he says he had received emails from the respondent’s solicitor which “threatened” his family.

13. However, Mr McGuire has not formally reported the alleged threats to the police. Mr McGuire stated that he had informed his “local member”, had made contact with “some police”, and hoped to later meet with “senior police”.

14. In effect, Mr McGuire’s application for an adjournment raised two matters. One, the costs assessment issue. Two, the notice to him of the respondent’s AIC. The respondent opposed the first adjournment application.

15. In relation to the costs assessment issue, the respondent argued that there was a “statutorily mandated pathway for dealing with objections to costs determinations”, and that the manager of the Costs Review Panel had already declined to revisit the determination. The respondent referred the Court to correspondence between Mr McGuire and the Costs Review Panel in May 2017, July 2017 and August 2017 relating to complaints made by Mr McGuire about the costs assessment (see annexure “B” to the affidavit of Mr Ricky Jose Lee made on 17 May 2017 (this affidavit was not formally read into evidence) and RE2).

16. There was nothing from Mr McGuire to indicate that there was any reasonable prospect that the cost determination matter could be

    
    

    “re-opened”. In the absence of any such evidence of any “investigation”, or realistic prospects of an investigation, this was not an element in favour of granting the adjournment.

17. The respondent also noted that even if new issues had been raised with the manager of the Costs Review Panel, this would have no bearing on the validity of the New South Wales Supreme Court judgments already in force. Mr McGuire provided no response to this.

18. As set out above, Mr McGuire also claimed that he had not received adequate notice of the respondent’s AIC. However, the evidence before the Court is that the AIC was served on Mr McGuire on 25 October 2017 (see RE1). On the evidence, I agreed with the respondent’s submissions that the notice was reasonable and adequate to make Mr McGuire aware of the AIC prior to the Court event.

19. It appears that Mr McGuire elected not to open email communications which effected service of the respondent’s notice of the AIC on him. Such notice complied with the relevant rules of Court and relevant Court orders.

20. With regard to the costs assessment issue, this Court cannot assist Mr McGuire. On the evidence that is before the Court, correspondence has taken place between Mr McGuire and the Costs Review Panel, and their position is that the matter is “closed”. Therefore I could not see any utility in granting an adjournment to allow time for an “investigation” into the costs assessment issue to take place.

21. With regard to Mr McGuire’s complaint that he did not have notice of the respondent’s AIC, I agree with the respondent that procedural fairness is about opportunity. A person cannot fail to take up an opportunity without reasonable cause. Here, there is no reasonable cause in the absence of any formal complaint to the police regarding the alleged “threats” made by the respondent’s solicitor to Mr McGuire, or any documentation indicating any investigation is taking place. Mr McGuire’s election not to open emails does not provide any basis to assert some failure of procedural fairness.

22. The first adjournment application was refused.

23. The final hearing proceeded on 30 October 2017 but was adjourned part heard given that the estimated time for the hearing had been exceeded. As a date was not currently available at that time, the parties were told that the Court would administratively advise them of a date for the resumption of the final hearing.

24. On 14 November 2017, the parties were advised, through letters sent by express post, that the resumption of the final hearing was listed before me on 6 December 2017.

25. On 28 November 2017 and 1 December 2017, I understand that Mr McGuire sent email correspondence to my Associate without sending a copy, or otherwise notifying the respondent. Mr McGuire was advised by the Court’s registry on both occasions that ex-parte communication was inappropriate.

26. On 4 December 2017 Mr McGuire filed an affidavit made by him on 3 December 2017. In his affidavit, Mr McGuire again sought an adjournment of the final hearing “pending the results of ongoing investigation/s, and for other reasons” (“the second adjournment application”) (see [3] of Mr McGuire’s affidavit made on 3 December 2017).

27. Mr McGuire’s reasons for the second adjournment application were as follows ([5] of Mr McGuire’s affidavit made on 3 December 2017):

    “…a) a medical consultation and possible tests on 5 December; and b) a long standing commitment on 6 December; c) that investigation/s are now on foot with regard to the Judicial issue that affects the Costs Certificates relied on by the other side as well as the questions of collusion and fraud that are evident in the other sides originating application; d) the question of the breaches of procedural fairness; e) the apparent illegal action of Mr Lee in gaining access to my computer (also now under investigation) that have prejudiced my position; f) the disadvantage I have suffered in having to take my computer off line and the time it has taken to obtain another suitably priced unit; g) His Honour Judge Nicholls suggested during the hearing that it would be in my best interest (or words similar) to get professional legal advice…”

28. At the resumption of the final hearing on 6 December 2017, Mr McGuire did not appear. The respondent was represented by counsel.

29. The respondent’s counsel submitted that Mr McGuire’s affidavit of 3 December 2017  had not been served on the respondent. I adjourned for a short period to allow him some time to read that document and obtain instructions.

30. The respondent opposed the second adjournment application. The respondent submitted that the application had no substance, and was an attempt to re-litigate issues that had previously been dealt with in the first adjournment application. The respondent also argued that assertions made in Mr McGuire’s affidavit of 3 December 2017 were “irrelevant”, unexplained and unsupported by corroborative evidence.

31. In the circumstances set out above, two issues arose for consideration. One Mr McGuire’s second adjournment application. Two, Mr McGuire’s non-attendance at the Court event on 6 December 2017, and the consequences that flowed from that non-attendance.

32. Given that Mr McGuire’s communication of his second adjournment application was received by the Court’s registry prior to the scheduled resumption of the final hearing, I find that Mr McGuire did have notice of the resumed date of the final hearing of his application.

33. From his email communication to the Court’s registry, I understood Mr McGuire’s position to be as follows. He sought an adjournment of the resumption of the final hearing. His reasons were advanced in his affidavit made on 3 December 2017 and in particular, at [5] of the affidavit (and see above at [34]).

34. Mr McGuire’s affidavit of 3 December 2017 was not read into evidence as Mr McGuire was not available for cross-examination. Nonetheless, I proceeded to consider his second adjournment application on the basis of the reasons “advanced” in the affidavit.

35. In regards to reason “a” of Mr McGuire’s reasons for requiring an adjournment, there is no medical evidence before the Court in support of it. Further, Mr McGuire merely claims to have had a “medical consultation” and “possible tests” on “5 December 2017”. There was nothing to suggest some ongoing medical incapacity or medical procedure that prevented him from attending Court. I also note that 5 December 2017 is the day prior to, not the day of, the resumption of final hearing, and that no attempt had been made by Mr McGuire to appear via telephone.

36. Reason “b” outlined by Mr McGuire suggests he has a “longstanding commitment on 6 December 2017”. There is nothing to explain what that commitment is, nor why it could not be deferred so as to allow him to appear at Court.

37. Reason “c” seeks to re-agitate issues that had previously been dealt with by the Court in the first adjournment application (the costs assessment issue). There was nothing in Mr McGuire’s affidavit to cause me to revisit the costs assessment issue.

38. With regards to reason “d”, any general assertion of breaches of procedural fairness (whatever this may have been) does not provide a reason to further adjourn the hearing.

39. Reason “e” is an allegation of illegal conduct of the respondent’s solicitor.  This was a matter for referral to the police. It does not provide a basis for an adjournment of the resumption of the final hearing.

40. Reason “f” was raised earlier at the commencement of the final hearing. There was no explanation as to why this matter required a further adjournment.

41. With regards to reason “g”, Mr McGuire has had ample time to obtain legal advice.

42. While Mr McGuire has provided an explanation for his non-attendance at the resumption of the final hearing as set out above, in the circumstances it is not a satisfactory explanation. Therefore, I refused the second adjournment application.

43. Due to Mr McGuire’s non-appearance, the respondent made an application to proceed with the hearing under r.13.03C(1)(e) of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”), or alternatively, to dismiss the substantive application pursuant to r.13.03C(1)(c) of the FCC Rules.

44. It was, in my view, appropriate to dismiss the substantive application pursuant to r.13.03C(1)(c). Mr McGuire had reasonable notice of the resumed hearing. The reasons advanced for his non-attendance were not satisfactorily explained in the circumstances. There was no medical evidence explaining any inability to attend for any medical reason. The assertion that there were ongoing matters relating to the costs assessment issue would, in addition to what is set out above, not have prevented Mr McGuire from appearing to further explain these “ongoing issues”.

45. I made the relevant orders as sought by the respondent.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Date: 22 December 2017