NAB Limited v Satchithanantham
[2008] FMCA 1464
•15 October 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NAB LIMITED v SATCHITHANANTHAM | [2008] FMCA 1464 |
| BANKRUPTCY – Adjournment of petition – pending appeal from refusal to set aside bankruptcy notice – petition should await outcome of appeal. |
| Federal Magistrates Act 1999 (Cth), s.39 Federal Magistrates Court Rules 2001 (Cth), r.8.02 |
| Hudson v Whalan [1999] FCA 189 Satchithanantham v NAB Ltd [2008] FMCA 940 Westpac Banking Corp v Carver (2003) 126 FCR 113 |
| Applicant: | NATIONAL AUSTRALIA BANK LIMITED (ABN 12 004 044 937) |
| Respondent: | THAMBIAPPAH SATCHITHANANTHAM |
| File Number: | SYG 2118 of 2008 |
| Judgment of: | Smith FM |
| Hearing date: | 15 October 2008 |
| Delivered at: | Sydney |
| Delivered on: | 15 October 2008 |
REPRESENTATION
| Counsel for the Applicant: | Ms N Bearup |
| Solicitors for the Applicant: | Dibbs Abbott Stillman |
| Counsel for the Respondent: | Respondent in person |
ORDERS
The petition is adjourned for hearing on 22 December 2008 at 10.15 am.
The parties have liberty to apply for further directions on a date obtained from the Associate which allows 3 days notice to the other.
The respondent’s application for leave to request the issue of subpoenas is adjourned to the next listing.
The costs relating to the adjournment are reserved.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2118 of 2008
| NATIONAL AUSTRALIA BANK LIMITED (ABN 12 004 044 937) |
Applicant
And
| THAMBIAPPAH SATCHITHANANTHAM |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is a petition filed on 15 August 2008, in which the National Australia Bank Limited (“the Bank”) seeks a sequestration order against the estate of Mr Satchithanantham. The petition is based upon non‑compliance with a bankruptcy notice, which I previously addressed in an unsuccessful application by Mr Satchithanantham to set it aside (see Satchithanantham v NAB Ltd [2008] FMCA 940).
Mr Satchithanantham has appealed to the Federal Court from my judgment, and has also very recently filed in the Federal Court a notice of motion seeking a “stay of the bankruptcy proceedings commenced against the appellant” and other orders. The appeal is in the docket of Edmonds J, and is awaiting the fixing of a hearing date after appeal books are settled and filed. The motion has not yet been given a return date, but it seems likely that it will also be listed in his Honour’s docket.
The petition has been adjourned twice before today’s listing, and further applications for adjournment by Mr Satchithanantham are opposed by the Bank. It submits that medical evidence about Mr Satchithanantham’s fitness to participate in today’s hearing is inconclusive. It submits that the appeal to the Federal Court is lacking in merit, as is other litigation which Mr Satchithanantham wishes to pursue. This includes a special leave application to the High Court he has recently filed, in relation to the judgments of the Supreme Court and the Court of Appeal giving rise to the judgment debt relied upon in the bankruptcy notice and petition.
When the matter was mentioned before me on the last occasion, I did not have time to read the papers, and raised a concern whether the petition should remain in my docket in view of my previous judgment being subject to appeal. Submissions about this have been made on behalf of the Bank. I accept its submission that there would not be any appearance of bias by way of pre‑judgment if I proceeded to hear the petition (citing Hudson v Whalan [1999] FCA 189). Mr Satchithanantham appears not to dispute that the matter should remain in my docket, if I am, as I propose, inclined to adjourn the petition until the completion of the current appeal proceedings in Edmonds J’s docket. I have assured Mr Satchithanantham that I would be endeavouring to listen with a fresh mind to any new arguments he wished to make to me in opposition to the making of a sequestration order.
In relation to Mr Satchithanantham’s other litigation against the Bank, including his special leave application, I am not persuaded on the material he has filed that any of it would provide sufficient grounds for adjourning the petition. To adjourn a petition due to an outstanding special leave application in relation to the judgment debt relied upon by the petitioner, requires the Court to be satisfied that there are “arguable grounds for concluding that special leave to appeal will be granted” (see Westpac Banking Corp v Carver (2003) 126 FCR 113 at [18]). I am far from being so satisfied in this case on the material currently before me.
However, in my opinion the interests of justice would be best served by the petition being adjourned until the appeal from my judgment is determined by the Federal Court. This will address many of the issues as to the validity of the bankruptcy notice, which Mr Satchithanantham wishes to repeat in opposition to the petition. I do not think it appropriate that these issues should be simultaneously litigated by way of the bankruptcy petition and on the appeal concerning the bankruptcy notice. I consider that the latter should be given priority, since it may produce a more authoritative judgment on at least some of these issues.
If the Bank, indeed, has grounds for showing that the appeal is completely lacking in merit, and wishes to raise them urgently, then summary remedies are available to it under the Federal Court Rules.
I have considered the Bank’s submission that I should consider transferring the petition to the Federal Court, so that it might be dealt with by the same judge who will determine the appeal from my judgment. However, that procedure is by no means certain, since the Federal Court may not consider it appropriate for a judge simultaneously to exercise its appellate and first instance jurisdiction in a bankruptcy matter. Moreover, the Federal Court might regret the loss of its capacity to list before a single judge any appeal from a sequestration order made in this Court.
Taking into account the considerations referred to in s.39 of the Federal Magistrates Act 1999 (Cth) and r.8.02 of the Federal Magistrates Court Rules 2001 (Cth), and Mr Satchithanantham’s circumstances as shown in the evidence before me, I conclude that the balance of convenience favours the petition remaining in my docket and being adjourned pending the outcome of Mr Satchithanantham’s appeal. For that reason only, therefore, I propose to adjourn the petition until late December. If the appeal is determined substantially earlier than that date, the petitioner can apply for an earlier hearing date. If the appeal has not been finalised, then further adjournments may need to be considered.
I shall reserve the question of costs in relation to the adjournment.
Postscript. After giving the above reasons for adjourning the petition, Mr Satchithanantham requested that I should grant him leave to request the issue of various subpoenas which he has foreshadowed, pursuant to order 4 made on 7 October 2008. This was opposed by the Bank. I deferred consideration of this matter, since I shall need to hear further submissions by Mr Satchithanantham as to the propriety of allowing him to pursue discovery by this means. However, I noted that one of the documents which he wishes to have produced by the Bank is the affidavit by the Bank’s solicitor which was relied upon by James J on 12 December 2007, when making his quantified costs order. Mr Satchithanantham claims that he does not now have a copy to show to this Court. Prima facie, this would seem to be a relevant piece of evidence, and it is difficult to see why the Bank should not produce it. I shall rule on this, and any other matters concerning the proposed subpoenas, on the next listing. If necessary, further adjournments might then need to be considered.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 23 October 2008
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