Muller v Combis
[2004] FCA 1721
•20 DECEMBER 2004
FEDERAL COURT OF AUSTRALIA
Muller v Combis [2004] FCA 1721
JEFFREY ALAN MULLER AND LYNETTE ANNE MULLER V NICK COMBIS
QUD7011 OF 2003COOPER J
BRISBANE
20 DECEMBER 2004
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
QUD7011 OF 2003
BETWEEN:
JEFFREY ALAN MULLER
FIRST APPLICANTLYNETTE ANNE MULLER
SECOND APPLICANTAND:
NICK COMBIS
RESPONDENTJUDGE:
COOPER J
DATE OF ORDER:
20 DECEMBER 2004
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
The application for adjournment is dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
QUD7011 OF 2003
BETWEEN:
JEFFREY ALAN MULLER
FIRST APPLICANTLYNETTE ANNE MULLER
SECOND APPLICANTAND:
NICK COMBIS
RESPONDENT
JUDGE:
COOPER J
DATE:
20 DECEMBER 2004
PLACE:
BRISBANE
REASONS FOR JUDGMENT
This matter was previously before the Court and was adjourned for a continuation of the hearing to commence today for a period of three days. The applicants are bankrupts and the application is for an annulment of the bankruptcy on the grounds that the orders sequestrating their estates ought not to have been made because they were at all relevant times solvent. The trustee has been advised by Mr Bryson on behalf of the applicants that the male applicant, Mr Jeffrey Muller, was injured in a motor vehicle accident in the United States of America on 2 December 2004 and from that time was receiving medical treatment in the United States.
The respondent has filed an affidavit which sets out his dealings with the male and female applicant, by way of an exchange of emails and telephone conversations. The effect of those conversations was that the applicants would not be returning to Australia for this hearing, although the apparent gist of the conversations was that they wished the matters to proceed.
Certain medical material was provided, and on the weekend an authority was given to speak to an American medical officer who was apparently in a position to discuss the condition of Mr Muller and his ability to return. One of the documents which is contained in the material supplied is a brief certificate from an ophthalmologist indicating that Mr Muller received some eye injury as a result of the collision, for which he was being treated, and asserting or certifying that Mr Muller was not able to fly before 19 December 2004, although no reason is given as to in what way an eye injury incapacitated him from flying.
There is some material from a medical clinic entitled, ‘Industrial Care Medical Clinic’, from a Dr Johnson, which indicates that because of injury due to motor vehicle accident to lower back, neck and shoulders, Mr Muller was seen on 13 December 2004 and was given a temporary total disability certificate for the period from 13 December to 21 December 2004. The certificate on its face would appear to be one relating to fitness for work. But that aside, there is no explanation given in the certificate as to why Mr Muller has been unable to return to Australia from shortly after the date of the accident on 2 December or during the period 13 December to 21 December 2004.
The applicants have retained Mr Bryson of counsel to appear and seek the adjournment today. Mr Bryson is in no better position to place material before the Court than the copy certificates which have been made available to the trustee. The trustee in an affidavit sets out the prejudice which will be suffered by the estate if the matter is further substantially delayed. This is a proceeding that has a long history of delay. It is a matter where the hearing was forced to be adjourned on the last occasion prematurely because the female applicant did not return to the Court to be cross-examined on her affidavit. The Court was advised on that occasion that she and the male applicant were to spend the afternoon with a Brisbane solicitor, giving instructions and receiving advice for the further conduct of the proceedings.
I have given serious consideration as to whether or not I ought to adjourn the matter. But on balance I am not persuaded that I should do so because I am not persuaded, having regard to the issues involved, that adequate instructions could not have been given to Mr Bryson or some other person to simply appear today, not to seek an adjournment but to argue the substantive issue on the materials before the Court. And I am not persuaded, having regard to the time frame, that if I stand the matter down until tomorrow morning, those instructions cannot be given - although I understand Mr Bryson is not available because of prior professional commitments.
But such instructions can be given overnight to somebody, perhaps Hopgood Ganim who the Court was led to understand were being approached or were going to appear in the matter, to attend tomorrow to make formal submissions in relation to the application. I do not believe it is in the interests of Mr and Mrs Muller to have the matter adjourned over until April next year, and that their interests cannot be adequately dealt with by giving them the opportunity to engage Hopgood Ganim or counsel to appear tomorrow morning to make the formal submissions. The Court file is available here, the affidavits could be looked at, and Mr and Mrs Muller can be advised immediately by fax or by telephone call that that is the position.
At the end of the day, having regard to the interests of all, the applicants’ interests are sufficiently protected by refusing the application for adjournment but standing the matter down until 10.15 tomorrow morning to proceed to hear submissions in relation to the final disposition of the application. And I so order. I will reserve the question of costs.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cooper. Associate:
Dated: 20 December 2004
Counsel for the Applicant: J Bryson Counsel for the Respondent: P McQuade Solicitor for the Respondent: James Conomos Lawyers Date of Hearing: 20 December 2004 Date of Judgment: 20 December 2004
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