Parker, L.J. v Official Trustee in Bankruptcy

[1994] FCA 851

2 December 1994

Please replace the original 851-94 judgment with the attached

851-94.

Thank you

Judgments Clerk

8 .~1 99

JUDGMENT No. ..... . ... ......./ -.......

FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES REGISTRY	No NB 1486 of 1992
GENERAL DIVISION

LESUE JAMES PARKER

AND:

BEVERLEY ANN NICHOUS

RECEIVED Applicant

FEDERAL COURT OF AND:

AUSTRAUA

PRINCIPAL

OFFICIAL TRUSTEE IN
BANKRUPTCY

Respondent

CORAM:	SACKVILLE J.
PLACE:	SYDNEY
DATE:	4 NOVEMBER 1994

REASONS FOR JUDGMENT

HIS HONOUR:  In this matter the appl~cant filed an application m the bankruptcy of

Leslie James Parker. That application was made on 30 September 1994. In it the

applicant sought an order "preventing the transfer of the property comprised in

certificate of title folio identifier 491751255 (lot 49 Budgong Road, Budgong) from
orders made on 15 March 1993 and 23 September 1994 in the Family Court in

favour of Lorraine Anne Parker"

The matter was first before the Court on Friday, 30 September 1994 when rt was

stood over until the bankruptcy list on 4 October 1994 At that time Mr Friedman
appeared at the hearing on behalf of the Insolvency Trustee Service and the Official
Trustee.

I treated the application made by the applicant as a claim for interim relief. In the

result I decided that the applicant was not entitled to any relief in the proceedings as they were then constituted. I published reasons for judgment for that effect on

5 October 1994. In the course of that judgment I indicated as I had stated in the

course of argument that it was desirable that the applicant should have legal

assistance to press what was a complex case. The judgment also pointed out that

it may well be the case, or may have been the case that the applicant had

proceeded in the wrong jurisdiction.

On a subsequent occasion the matter was before the court for a directions hearing.

At that time Mr Locke, solicitor, appeared on behalf of the applicant. Mr Locke

indicated that he knew little about the matter but had been asked to appear by Mr

Goldberg, solicitor, who represented the applicant. The Court was told at that time

that Mr Goldberg had been instructed by the applicant; certain directions were

made for the conduct of the matter ~ncluding the filing of affidavits.

Today Miss Wong has appeared on behalf of the applicant. Miss Wong has

indicated that advice has been given to the applicant that the proceedings were

commenced in the wrong jurisdiction. Accordingly, Miss Wong has indicated that

she wishes to have the proceedings dismissed. I have made an order to that effect.

I should add that Mr Goldkn-q presumably as a courtesy to the Court, appeared.

Mr Goldberg indicated that he had not been instructed in the manner that had been indicated to the court on the last occasion in that he had received a request

from the bankrupt only very shortly before the hearing to appear on behalf of the

applicant.

I should record that Mr Goldberg was excused from further appearance. I should

also record that Mr Goldberg had previously filed a notice of ceasing to act.

The proceedings having been dismissed, Mr Friedman, who again appears for the Official Trustee, has sought an order for the costs of the proceedings, presumably

including also costs on the occasions when I directed that costs be reserved.

Miss Wong has made a number of points on behalf of the applicant. She has polnted out that the applicant was not legally represented, at least effectively, until

today.	She had, so Miss Wong submitted, been badly advised by Mr Parker in that
she had been advised to commence proceedings in the Federal Court.	That,

however, was the incorrect forum and it was appropriate that her claim be pressed,

if at all, in the Family Court rather than in the Federal Court.

Miss Wong also pointed out that the Official Trustee had been represented at all times. She submitted that the Official Trustee had not advised the applicant that

she was proceeding in the incorrect jurisdiction.	Miss Wong also made the point
that the applicant has very few resources and that she had previously sought legal
advice through the Law Society.	However, she had not been able to obtain
appropriate legal representation.

Mr Friedman, in response, pointed out, I think correctly, that the proceedings had

been ~nst'iuted by way of application on 30 September 1994. They had been

served upon the Official Trustee only late in that day and were returnable on 4

October - that is, the first sltting day after a long weekend. Mr Friedman submitted

that the Official Trustee had not engaged in any conduct that could be described
as improper. Indeed the Official Trustee had rarsed the jurisdictional point at

precisely the first opportunity he had to do so, that is, when the hearing

commenced on 4 October 1994. Mr Friedman submits that the Official Trustee was

bound to answer the claim made in the application which was, as he correctly

states, treated by me as an application for interim relief.

Mr Friedman also makes the pornt - agarn I think correctly - that the Official Trustee

has acted properly in this matter	No technical problems were placed in the path
of the applicant pursuing such remedles as might have been available to her.	It is

not, of course, the responsibility of the Official Trustee to structure the manner in

which an application is made before the court.

I accept the factual background for the purposes of this application as stated by

Miss Wong. The matter is an unfortunate one. It is always a cause for regret that

an unrepresented lltigant is defeated without an opportunity to have the merits

determined by reason as in this case, of a failure to joln the correct parties or a

failure to proceed in the appropriate forum.

Nonetheless the general principle in my oplnion is that costs ought to follow the event. There certainly are circumstances where that principle might be departed

from However, in this case, an application has been made and has been

dismissed on the application of the applicant because of a recognrtion that it was

misconceived. Furthermore, as I have indicated, the response of the Official
Trustee was in my view, quite appropriate to the proceedings as Instituted.

Accordingly, in my opinion, there are no grounds for departing from the general rule, namely that the unsuccessful applicant ought to meet the costs in this case of the Official Trustee.

While that may be a conclusion that is regrettable in some senses, nonetheless it seems to me the appropriate order to make in the circumstances of this case.

Accordingly, the proceedings having been dism~ssed, I order the applicant to pay

the costs of the Official Trustee of the proceedings including the costs reserved on

such previous occasion or occasions when they were reserved.

I thank the legal representatives and Miss Wong for your attendance today.

I certify that this and the preceding 4 pages are a true

copy of the Reasons for Judgment of the Honourable

Justice Sackville.

sociate: I F&

Dated: 16 November, 1994

Heard:	4 November, 1994
Place:	Sydney
Decision:	4 November, 1994
Appearances:	Miss Wong of Briggs Paul Dowding, Sol~citors, appeared
for the applicant.
Mr Freidman of Maurice Freidman & Company, Solicitors, appeared on behalf of the Official Trustee in Bankruptcy.