Murphy v GC CLOUDLOCK and Ors [2019] FCCA 3868

[2019] FCCA 3868

FEDERAL CIRCUIT COURT OF AUSTRALIA

MURPHY v GC CLOUDLOCK & ORS [2019] FCCA 3868

Catchwords:
INDUSTRIAL LAW – Adjournment of hearing – pending winding up of third respondent – allegations that threats to a party have been made – interlocutory orders – hearing adjourned.

Legislation:

Corporations Act 2001 (Cth), s.471B

Applicant: BRENT MURPHY

First Respondent: GC CLOUDLOCK

Second Respondent: ROHEN HANCOCK

Third Respondent: SHIELDS LOGISTICS PTY LTD

File Number: BRG 446 of 2017

Judgment of: Judge Egan

Hearing date: 30 August 2019

Date of Last Submission: 30 August 2019

Delivered at: Brisbane

Delivered on: 30 August 2019

REPRESENTATION

Applicant: In person

First Respondent No appearance

Second Respondent: In person

Third Respondent: No appearance

ORDERS

1. That the matter be adjourned to a date to be fixed.

2. That the Second Respondent be granted leave to file and serve an amended defence on or before 30 September 2019.

3. That the matter be listed for directions on a date to be fixed, prior to the trial hearing date when such date is obtained.

4. The parties have liberty to apply on the giving of three (3) days’ notice, each to the other.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 446 of 2017

BRENT MURPHY

Applicant

And

GC CLOUDLOCK

First Respondent

ROHEN HANCOCK

Second Respondent

SHIELDS LOGISTICS PTY LTD

Third Respondent

REASONS FOR JUDGMENT

1. This matter was listed for hearing today before this court. After appearances had been entered on behalf of the applicant and the second respondent, it became apparent that the first respondent had been deregistered. In those circumstances, the matter could not proceed against the first respondent. The applicant accepted that situation and indicated that he wished to proceed in those circumstances against the second respondent and the third respondent, Shields Logistics Pty Ltd. After discussion between the applicant, the second respondent and the Court, the Second Respondent handed to the Court documentation which indicated that a winding-up application for the third respondent had been filed in the Registry of the Federal Court of Australia at Sydney on 2 August 2019. The applicant for such winding-up order was “Morgan Conley Solicitors Pty Ltd, ACN 608434297”. 

2. It is of relevance to record the name of the applicant for the winding up of the third respondent, not only because the applicant was the firm of solicitors that was on the record in these proceedings as representing the third respondent, but also because such firm of solicitors was also the lawyer on the record representing the second respondent.

3. The relevance of referring to the above facts is that during a course of dialogue between the second respondent and the Court this morning, it was asserted by the second respondent that he, at no time, had relevantly instructed anyone from Morgan Conley Solicitors to act on his behalf. Instead, the second respondent indicated that another person named Hassan, a person said by the second respondent to be someone for whom he previously worked, had unilaterally undertaken to arrange legal representation for Mr Hancock in this proceeding.

4. After being questioned as to whether Mr Hancock acceded to the situation whereby Mr Hassan was effectively acting as his legal alter ego or not, the Court was left in the position of not being satisfied that the second respondent was aware of whatever actions had been taken on his behalf in the proceeding. 

5. It is somewhat concerning that, notwithstanding that Morgan Conley Solicitors were on the record as acting for the second respondent on 29 January 2018 – namely at a time when Judge Jarrett made orders which affected the second respondent – it would appear that the second respondent did not have an amended defence filed on his behalf in response to the filing on behalf of the applicant of an amended statement of claim on 19 February 2018. Why an amended defence was not filed on behalf of the Second Respondent at the same time as a defence was filed by such firm on behalf of the third respondent to these proceedings is unknown.

6. Another complicating feature which has prevented this matter from proceeding to a full hearing today is what would appear to be the taking of steps for the winding up of the company Shield Logistics Pty Ltd, namely the third respondent to these proceedings. An order to that effect was made by Registrar Segal in the Federal Court of Australia at its Sydney Registry on 21 August 2019.  Such order of Registrar Segal appears as the second document in the bundle to exhibit 2 herein. 

7. It is clear that pursuant to the provisions of section 471B of the Corporations Act 2001 (Cth) (‘Corporations Act’) a proceeding in a court may not be commenced “or proceeded with” except with the leave of the court. Section 471B of the Corporations Act relevantly provides as follows:

   “Section 471B

   Stay of proceedings and suspension of enforcement processes

   While a company is being wound up in insolvency or by the Court, or a provisional liquidator of a company is acting, a person cannot begin or proceed with:

   (a) a proceeding in a court against the company, or in relation to property of the company; or

   (b) enforcement process in relation to such property;

   except with the leave of the Court and in accordance with such terms (if any) as the Court imposes.”

8. The effect of that section in relation to the current proceedings is that Mr Murphy, the applicant in these proceedings, cannot today proceed against the third respondent because he has stated that he has not obtained the leave of the Federal Court in Sydney to proceed with his current proceedings against the third respondent. He will need to obtain such leave before he is able to proceed with such claim.

9. There were other confusing aspects to this matter. The applicant has asserted that his former solicitors on the record failed to act in accordance with his instructions, and that various matters which ought to have been done or not done on his behalf were carried out without authority. That is a matter which Mr Murphy will have to pursue independently of any proceeding before this court.

10. Similarly, there have been suggestions made by Mr Hancock, that as a party to these proceedings, he has been the subject of threats.  It is not necessary for the court to particularise the nature of threats alleged to have been made to Mr Hancock. It does not take matters any further insofar as Mr Murphy’s claims against Mr Hancock are concerned.  Nevertheless it is of particular concern to this court that there is an allegation of threats being made against a party to proceedings before this court. The court is of course not in a position to make any finding one way or another as to whether any such threats have or have not been made. Likewise, the court is not in a position to know whether, if the threats were in fact made, such threats will need action to be taken against the perpetrators for any contempt of court.  In all of the circumstances, therefore, the court intends to mark as exhibit 4 a white envelope which has a sticker on its front marked the following words:

    Confidential

    This envelope is not to be opened unless by order of Judge Egan or another judge of the Federal Circuit Court of Australia.

11. Inside that envelope is an email directed to the Associate to Judge Egan sent by the second respondent at 12:59pm on 29 August 2019, together with a response sent to the second respondent by the Associate to Judge Egan at 1.52pm on 29 August 2019.

12. Such order will be made, and the envelope is now sealed by the court accordingly.

13. The matter will therefore be adjourned to a date to be fixed in circumstances where the second respondent has not had an amended defence filed on his behalf in response to the amended statement of claim filed on behalf of the applicant on 19 February 2018. It is ordered that the second respondent have leave to file and serve an amended defence on or before 30 September 2019.

14. The court will further order that the matter be listed for directions on a date to be fixed prior to the trial hearing date when such date is obtained.

15. The parties also have liberty to apply on the giving of three days’ notice each to the other.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate:  

Date:  27 February 2020