Meinhardt v Meinhardt & Ors (No2) - [2006] FMCA 1028

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MEINHARDT v MEINHARDT & ORS (No2)

[2006] FMCA 1028

PRACTICE AND PROCEDURE – Bankruptcy – Transfer to Federal Court – where consideration of decision of single justice of Federal Court submitted to be ‘plainly wrong’ – interests of administration of justice – resources – judgment writing time.

Bankruptcy Act 1966, s.244(13)

Feliciano Gonzalez v Maria De La Luz Marmentini, Executrix of the Estate of the Late Ida Garcia Raber (unreported 7 July 1998)

Applicant:

MEINHARDT (HONG KONG) LTD

First Respondent:

WILLIAM LINDSAY MEINHARDT (DECEASED)

Second Respondent:

WILLIAM EDWARD MEINHARDT

Third Respondent:

VICTORIA BARBARA TREYVAUD

File number:

MLG 566 of 2006

Judgment of:

McInnis FM

Hearing date:

19 July 2006

Delivered at:

Melbourne

Delivered on:

19 July 2006

REPRESENTATION

Counsel for the Applicant:

Mr M.L. Sifris SC, with Mr P. Fary

Solicitors for the Applicant:

Maddocks

Counsel for the First Respondent:

Mr G.T. Bigmore QC, with Mr K.J.A. Lyons

Solicitors for the First Respondent:

Chambers & Co

Counsel for the Third Respondent:

Mr A. Hanak

Solicitors for the Third Respondent:

Foster Harris

ORDERS

The proceedings be transferred to the Federal Court of Australia pursuant to s.39(1) of the Federal Magistrates Act 1999.
Costs reserved.

IT IS NOTED:-

To the extent that it is possible the application be dealt with expeditiously by the Federal Court noting that the Supreme Court has listed a related matter before Justice Gillard for hearing on 14 September 2006.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 566 of 2006

MEINHARDT (HONG KONG) LTD

Applicant

And

WILLIAM LINDSAY MEINHARDT (DECEASED)

First Respondent

WILLIAM EDWARD MEINHARDT

Second Respondent

VICTORIA BARBARA TREYVAUD

Third Respondent

REASONS FOR JUDGMENT

In this matter, the court made orders on 21 June 2006 by consent which effectively provided for a further directions hearing this day, the purpose of which was stated to be giving further directions generally in the proceeding and, if required, determining whether there is a preliminary issue to be decided, namely, whether the Applicant requires leave to bring this proceeding under s.244(13) of the Bankruptcy Act 1966 (the Bankruptcy Act). Further, if there is found to be a preliminary issue, the hearing and determination of that said preliminary issue.
Counsel for the petitioning creditor has provided the court with minutes of proposed orders which relevantly include a proposed order that the creditors' petition and the applicant's application for leave, if required, pursuant to s.244(13) of the Bankruptcy Act be fixed for hearing.
It has been indicated to the parties that the court is prepared to adjust its timetable to accommodate the further hearing as proposed by the applicant creditor on 7 and 8 August 2006.
During the course of submissions, the court was urged to hear and determine whether indeed there is a preliminary issue to be determined, namely, whether the Applicant creditor does in fact require the leave of the court to proceed pursuant to s.244(13) of the Bankruptcy Act.
It has become clear during the course of submissions that in considering that preliminary issue the court will be required to have regard to a decision of Emmett J in the matter of Feliciano Gonzalez v Maria De La Luz Marmentini, Executrix of the Estate of the Late Ida Garcia Raber (unreported 7 July 1998) wherein His Honour had found that leave was not required in circumstances which are submitted to be similar to the present circumstances under s.244(13) of the Bankruptcy Act.
When confronted with the prospect of this court being required to consider whether it will follow the decision of a single Justice of the Federal Court, I raised with the parties concerns the court might have in embarking upon that course of action which for reasons of comity between courts, if for no other reason, may require this court to determine whether His Honour's decision is ‘plainly wrong’.
Accordingly, I raised with the parties the prospect that it might be more appropriate in the circumstances, and in the interests of the administration of Justice pursuant to s.39 of the Federal Magistrates Act 1999 to transfer these proceedings to the Federal Court. I should note that an order has already been made by the court arising out of an interim application made by the Third Respondent in these proceedings which does not, in my view, have any direct or relevant impact upon the court's further deliberations in this matter.
The court is mindful of the inconvenience which may be suffered by parties if an order is made transferring an application of this kind to the Federal Court. Further, the court has already indicated that it is prepared to adjust its timetable to hear and consider not simply whether there is a preliminary issue but further to determine that preliminary issue and then, if leave is required, hear and determine the application for leave, determine that question and then if leave is granted, it be granted instanter to enable the petition to then further be heard and determined.
That clearly provides what I would describe as a fairly efficient process for dealing with the substantive application, assuming of course that leave is required and if the preliminary issue is determined in that manner contrary to the authority referred to of Emmett J and if sought leave is granted.
In my view, in a matter of this kind, the court is entitled to take into account the complexity of the issue, not so much in relation to the issue that is now fairly clearly stated, but also in relation to the question of whether it is desirable for this court to embark upon a process where it would need to consider that a decision made by a single Justice of the Federal Court is ‘plainly wrong’.
One advantage of this court retaining the matter would be that any dissatisfied party may seek to appeal, and perhaps an appeal from this court would then be an appeal to an appellate court constituted by three Federal Court Justices who may at an early occasion be able to deal with any difference in view that may or may not emerge between this court and a decision of a single Justice of a Federal Court.
I should stress that I have no view about the matter whatsoever at this stage of the proceedings, but only note that there is at least a potential for this court to perhaps reach a conclusion different from that of a decision of a single Justice of the Federal Court.
I have considered the matter carefully and in my view, having regard to the fundamental principle of the interests of the administration of Justice and the potential for this court to be required to consider this issue, which has already been the subject of a decision by a single Justice of the Federal Court, that in the circumstances it would be appropriate in the exercise of my discretion to transfer the proceedings to the Federal Court of Australia with a request that the matter be dealt with expeditiously.
The further factor which I need to refer to is that the hearing of an application of this kind is one part of the process. The court would then need to provide adequate time for a decision to be considered and a judgment delivered. The resources of the court at present, having regard to the substantial number of matters docketed before this court, and the lack of appropriate judgment-writing time, leads me to the conclusion that the issues to be agitated by senior and experienced counsel in the jurisdiction, may require significant court time, not simply involved with the hearing but also time associated with reflecting upon and delivering a considered judgment.
For those reasons, it is my view that it would be more appropriate for this matter to be dealt with by the Federal Court.
I have already indicated that the order I have made in relation to the interim application stands and I do not think it is appropriate for this court to make any further orders, other than to indicate on the order by way of notation that it is requested, to the extent that it is possible, the application be dealt expeditiously by the Federal Court, noting that the Supreme Court of Victoria has the associated matter, evident on the material, pending for hearing before Gillard J on 14 September 2006.
I do note that His Honour Sundberg J has previously dealt with aspects of these proceedings and, to the extent that it is possible, request the matter be listed before His Honour.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 19 July 2006