National Australia Bank Ltd v Larter (No.3)
[2007] FMCA 607
•11 April 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NATIONAL AUSTRALIA BANK LTD v LARTER (No.3) | [2007] FMCA 607 |
| PRACTICE & PROCEDURE – Application for an adjournment − where an application was made by the respondent to go behind a judgment on which the bankruptcy petition is based − where the respondent had already been given an adjournment following improper conduct by her legal representative − whether another adjournment ought to be granted on the basis that the legal representative now retained received instructions only the night before this hearing. |
| Bankruptcy Act 1966 |
| Wren v Mahony [1971-1972] 126 CLR 212 Garcia v National Australia Bank Limited [1998] 194 CLR 395 |
National Australia Bank v Wanda Larter [2007] FMCA 442
European Asian of Australia Ltd v Kurland (1985) 8 NSWLR 192
| Applicant: | NATIONAL AUSTRALIA BANK LTD |
| Respondent: | WANDA LARTER |
| File Number: | SYG2677 of 2006 |
| Judgment of: | Raphael FM |
| Hearing date: | 11 April 2007 |
| Date of Last Submission: | 11 April 2007 |
| Delivered at: | Sydney |
| Delivered on: | 11 April 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr J. M. White |
| Solicitors for the Applicant: | Dibbs Abbott Stillman |
| Counsel for the Respondent: | Mr J. Emmett |
| Solicitors for the Respondent: | Horton Rhodes |
ORDERS
Application for adjournment dismissed.
No order as to costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2677 of 2006
| NATIONAL AUSTRALIA BANK LTD |
Applicant
And
| WANDA LARTER |
Respondent
REASONS FOR JUDGMENT
I came into court this morning in order to hear an application for a separate issue which had been defined in orders made by me on 20 March 2007. The separate issue, in simple terms, was whether I should go behind a judgment in the manner permitted by Wren v Mahony [1971-1972] 126 CLR 212 and consider whether or not Mrs Wanda Larter might have a defence to the substantive judgment upon which the bankruptcy petition is based under the principles found in Garcia v National Australia Bank Limited [1998] 194 CLR 395.
On 20 March 2007 I gave judgment, National Australia Bank v Wanda Larter [2007] FMCA 442, and granted an adjournment to Mrs Larter of the sequestration proceedings so that she could consider her position with regard to the Garcia point, in light of the embarrassing attempt by her then solicitor to give evidence from the bar table concerning his professional involvement with her, which might have indicated that she did have such a claim. It was because Mr Kells had acted in this manner that I granted the adjournment as it appeared to me improper for him to be continuing to act both as advocate and as witness.
At paragraph 10 of my judgment I said:
“It is always unfortunate when the actions of a legal representative, that are hardly those that the Court would normally expect to see, results in a client obtaining a benefit that they would not have obtained if the case had been run properly. I feel I am obliged now to give Mrs Larter a short adjournment so that the separate questions raised by Mr White can be determined. The adjournment which I shall grant will be as short as possible and I will make it clear to those to whom Mrs Larter may apply for representation that I will brook no further delay. I will expect the proposed separate question to be determined on the day and if I am of the view that there should be no going behind the judgment then I will expect the bank to proceed with the application for a sequestration order.”
But when I arrived at court today I was greeted with an application for a further adjournment, this time of one month, by counsel and a new firm of solicitors who have been retained by Mrs Larter. The adjournment was requested on the grounds that the solicitors had only been instructed yesterday, which was the day after the Easter holidays and the counsel, Mr Emmett, had only received his brief at 6 pm yesterday evening. 20 March was a Tuesday, there were three more working days during that week and then there was a whole working week before the short week commencing on 2 April, just prior to Easter; in other words 12 working days. That is not a long time but it is not an unreasonable time for a person in the situation of Mrs Larter to have found representation.
Mrs Larter did not give evidence before me today, her husband did. He confirmed that he was in Court on 20 March. He heard my ex tempore judgment. He said that he went home and he was not sure whether it was that day or the next day that he told Mrs Larter that she had to find someone else to represent her. It would appear either that Mrs Larter told her husband to find the representation, or that she was completely inert and allowed him to do so. He began to contact firms of solicitors commencing with Clayton Utz. There was a delay after he contacted that firm before he was told that they had a conflict of interest and could not assist. Mr Larter does not appear to be a litigation naïf. I say that because the next three firms he telephoned were apparently firms with whom he had had previous dealings as he claimed he had had with Clayton Utz. They were Deacons, Freehills and Minter Ellison.
I can understand if a person, in small way of business, was not aware that major banks in this country have considerable amount of litigation and parcel it out amongst the major firms as well, of course, as their commercial work. I can understand that such a person may not comprehend the possibility of a conflict of interest. But then I would not expect such a person to be telephoning Clayton Utz, Freehills or Minter Ellison. I wonder how Mr Larter, who is a person against whom a bankruptcy notice has been issued, or Mrs Larter, a person against whom I am about to hear a bankruptcy petition, can afford one of those firms.
It is my view that Mr Larter is well aware and certainly would have been, once he had been told by Clayton Utz that that firm had a conflict, that any large firm that he approached may well be in the same position. If he was not aware then, it is difficult to believe that he would not have been aware by the time the second firm had told him that it also had a conflict. If he did not know what firm to go to he could have applied to the Law Society for assistance. He could have asked Mr Kells who has now ceased to act for his wife, but who appears to be still on good terms with Mr Larter because Mr Kells made the first approach to the current firm.
Mr Larter gave evidence that his wife was aware of what he was doing and constantly queried him as to his progress. I do not know why she did not herself make some attempt to find representation. Mr Larter tells the Court that he is suffering from a serious illness which requires constant medication and treatment. In those circumstances it would seem to me more natural that Mrs Larter should take upon herself the responsibility of finding her own legal representation. I have heard nothing about Mrs Larter’s character, personality, education or state of health. As no evidence on any of these matters has been tendered I must assume that there is nothing about any of them that would indicate that she is incapable of taking on the responsibility herself; we have come a long way from the days of the Married Women’s Property Act.
The responsibilities placed upon women in situations such as that found by Mrs Larter in circumstances such as those put before the court were summarised by Rogers J in European Asian of Australia Ltd v Kurland (1985) 8 NSWLR 192 almost 20 years ago. It does not behove Mrs Larter to come to this Court now, without evidence, and seek a further indulgence after it had been made clear that none would be given except in the most exceptional circumstances.
I am grateful to Mr Emmett for the open and thorough way in which he has attempted to assist his client. It is not easy to receive a brief the night before a hearing in a complex matter such as this. He has done his best. But it is not enough. I decline to grant the adjournment requested.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Raphael FM.
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