Nationwide News Pty Limited v Miller
[2009] FMCA 563
•16 June 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NATIONWIDE NEWS PTY LIMITED v MILLER | [2009] FMCA 563 |
| BANKRUPTCY – Review application – sequestration order made by a registrar – re-hearing – confirmation of registrar’s orders. |
| Applicant: | NATIONWIDE NEWS PTY LIMITED |
| Respondent: | WILLIAM WALTER MILLER |
| File Number: | SYG 3315 of 2008 |
| Judgment of: | Driver FM |
| Hearing date: | 16 June 2009 |
| Delivered at: | Sydney |
| Delivered on: | 16 June 2009 |
REPRESENTATION
| Solicitors for the Applicant: | Ms L Brown Blake Dawson |
The Respondent appeared in person
ORDERS
An extension of time be granted for the filing of the application until
2 June 2009.
Orders 1 and 2 made by Registrar Morgan on 18 May 2009 are confirmed.
The application for review made on 2 June 2009 is dismissed.
Mr Miller is to pay Nationwide News Pty Limited’s costs and disbursements of and incidental to the review application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3315 of 2008
| NATIONWIDE NEWS PTY LIMITED |
Applicant
And
| WILLIAM WALTER MILLER |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
I have before me an application filed on 2 June 2009 seeking review of a sequestration and a costs order made against Mr William Walter Miller, the applicant on the review application. The respondent on the review application is the petitioning debtor in the bankruptcy proceedings. On the oral application of Mr Miller, I granted an extension of time for the filing of the review application up to and including the date of the filing of it.
The review application is supported by a document which was apparently received by the Registrar prior to making the sequestration order. It is in the nature of submissions and invites the Court to take into account proceedings that Mr Miller has instituted in the Supreme Court against his former solicitors. I also have in support of the review application an amended statement of claim of the proceedings in the Supreme Court against Mr Miller's former solicitors.
The review application was treated, as is required, as a hearing de novo of the creditor's petition. The petition was filed on 15 December 2008 and is supported by several affidavits in addition to the affidavit within it verifying its contents, those being the affidavit of Lyndelle Elizabeth Brown made on 11 December 2008, the affidavit of Lyndelle Elizabeth Brown made on 15 May 2009 and updated affidavits of search and debt of Lyndelle Elizabeth Brown made on 16 June 2009 and Geoff Booth on 16 June 2009.
I am satisfied on the basis of that material that the formal requirements for the making of the sequestration order have been met. I am also satisfied that Mr Miller is unable, presently, to pay the debt subject of the creditor's petition. He admitted, in his oral submissions, that he is a man without means although he has expectations of being able to recover substantial damages from his former solicitors. He cannot, however, pay his debts as and when they fall due, or in what I would regard as a reasonable time.
The remaining issue is whether the proceedings Mr Miller has instituted in the Supreme Court against his former solicitors provide another sufficient cause why a sequestration order ought not to be made. I do not think those proceedings do provide a reason for the Court to refrain from making a sequestration order. The registrar was, as I have noted, aware in general terms of the institution of those proceedings. They are explained in more detail in the amended statement of claim. The debt the subject of the creditor's petition arose from an adverse costs order against Mr Miller in the Supreme Court in proceedings he had instituted against Nationwide News because of non payment of moneys he believes were due to him from the provision of a news story. Mr Miller is not satisfied with the outcome of that case in the Supreme Court but was unsuccessful in an appeal to the Court of Appeal. No basis has been advanced before me to justify going behind either of those judgments.
Mr Miller now contends that his solicitors in the earlier proceedings in the Supreme Court were at fault and is seeking to recover substantial damages from them in the newly instituted proceedings. However, the outcome of his claim against his former solicitors is at best uncertain and the duration of the proceedings is also uncertain.
Further, Mr Miller tells me, and I have no reason to disbelieve him, that the trustee who he has consulted today will not oppose him continuing with that action. In the circumstances I am not persuaded that the proceedings against Mr Miller's former solicitors provide any reason for the Court not to make a sequestration order.
There is a question of the appropriate form of order that should be made on the rejection of the application for review. On one view, the Court should make a fresh sequestration order. However, the existing sequestration order was made on 18 May 2009 and the administration of the bankrupt estate has commenced. I understand that Mr Miller today provided a statement of affairs to his trustee in bankruptcy. It would, in my view, cast into doubt what has already been done in the administration of bankruptcy to make a fresh sequestration order.
I will order that an extension of time be granted for the filing of the application until 2 June 2009. Orders 1 and 2 made by Registrar Morgan on 18 May 2009 are confirmed. The application for review made on 2 June 2009 is dismissed.
Mr Miller is to pay Nationwide News Pty Limited’s costs and disbursements of and incidental to the review application.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 18 June 2009
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