Pullen v Joiner
[2013] FCCA 1377
•20 September 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PULLEN v JOINER & ORS | [2013] FCCA 1377 |
| Catchwords: PRACTICE AND PROCEDURE – Application to set aside orders pursuant to r.16.05(2)(a) – no reasonable or satisfactory explanation for failure to appear – no merit to underlying application. |
| Legislation: The Constitution, s.51(xxiv) |
Cases cited:
Del v Director-General, NSW Department of Community Services (1997) 190 CLR 207
Pullen v Joiner [2013] FMCA 172
Re Brook 33 L.J. C.P. 246
| Applicant: | KEVIN MICHAEL PULLEN |
| First Respondent: | MATTHEW JOINER A TRUSTEE OF THE PROPERTY OF KEVIN MICHAEL PULLEN A BANKRUPT |
| Second Respondent: | GERALD COLLINS A TRUSTEE OF THE PROPERTY OF KEVIN MICHAEL PULLEN A BANKRUPT |
| Third Respondent: | JAMES WILSON A SERVANT OF THE FIRST AND SECOND RESPONDENTS |
| File Number: | BRG 455 of 2011 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 27 February 2013 |
| Date of Last Submission: | 27 February 2013 |
| Delivered at: | Brisbane |
| Delivered on: | 20 September 2013 |
REPRESENTATION
| The Applicant appeared on his own behalf |
| Solicitor for the Respondent: | Mr Muller |
| Solicitors for the Respondent: | Rodger Barnes & Green |
ORDERS
The application be dismissed.
The applicant pay the respondents costs of and incidental to this application to be taxed and paid in accordance with the Federal Circuit Court (Bankruptcy) Rules 2006.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 455 of 2011
| KEVIN MICHAEL PULLEN |
Applicant
And
| MATTHEW JOINER A TRUSTEE OF THE PROPERTY OF KEVIN MICHAEL PULLEN |
First Respondent
| GERALD COLLINS A TRUSTEE OF THE PROPERTY OF KEVIN MICHAEL PULLEN |
Second Respondent
| JAMES WILSON A SERVANT OF THE FIRST AND SECOND RESPONDENTS |
Third Respondent
REASONS FOR JUDGMENT
The principal application in this matter was commenced by an initiating application filed on 7 June, 2011 and amended on 28 June, 2011. In the application, Mr Pullen sought relief against the first and second respondents who are the trustees of his estate in bankruptcy, and the third respondent, who is one of their employees.
On 5 June, 2012 I ordered that Mr Pullen’s claim for relief set out in paragraphs 2, 3 and 5 of his amended application be dismissed. Essentially, that relief related to access to the files kept by his trustees in bankruptcy, either pursuant to the Bankruptcy Act1966 or the Privacy Act1988. The balance of Mr Pullen’s application was listed for hearing on 26 July, 2012. On that day, Mr Pullen failed to appear at the hearing. The respondents appeared and sought that the application be dismissed. For reasons that I delivered on 26 July, 2012, I dismissed Mr Pullen’s application. Although I dismissed Mr Pullen’s application because he did not appear to prosecute his application, I also considered the merits of his claim.
Mr Pullen now applies pursuant to rule 16.05(2)(a) of the Federal Circuit Court Rules 2001 to have the order made by on 26 July, 2012 set aside because it was made in his absence.
The making of such an order is discretionary. To succeed in the application Mr Pullen must demonstrate:
a)that there is an explanation for his failure to appear;
b)that there has been no undue delay in making the application; and
c)that there is merit in the applicant’s case in the sense that there is some prospect that different orders might be made if the orders sought to be set aside are discharged and a further hearing takes place.
Failure to appear
Mr Pullen’s explanation for his failure to appear is simply that he expected that the application would be adjourned at his request and therefore no appearance by him was necessary. As Mr Pullen says in his own written submissions in support of this application: “… the Applicant considered that it would be a formality to have the Court adjourn the hearing set down for 26 July 2012 …”.
Mr Pullen’s attempts to secure an adjournment commenced with a letter sent by facsimile to the “Federal Magistrates Court” dated 25 June, 2012. He sought an adjournment because of a pending application for an extension of time to appeal that Mr Pullen had commenced in respect of the Court’s orders made on 5 June, 2012. He suggested that the final hearing of the balance of his claim should await the outcome of that application.
By a letter from my Associate to Mr Pullen dated 27 June, 2012, Mr Pullen was advised that the Court was unable to consider his request because the attitude of the respondents to his request for an adjournment was not known. The correspondence also pointed out that the application remained listed for defended hearing on 26 July, 2012.
Mr Pullen wrote to my Associate on 4 July, 2012 and re-iterated his request for an adjournment.
Mr Pullen confirms in his written submissions filed in support of this application that on 18 July, 2012 he sought the consent of the respondents to his request for an adjournment. On the same day, the respondents refused to consent to the adjournment.
On 24 July, 2012 Mr Pullen sent a letter by facsimile to the respondents’ solicitors (and sent a copy to the “Federal Magistrates Court”). In that correspondence he says, amongst other things:
I refer to your letter of July 18 last refusing to consent to the adjournment of the hearing set down for 26 July 2012.
…
I suggest that any reasonable person, once aware of the facts, would agree that an adjournment of the hearing of July 26 is appropriate.
In the naive belief that the Court and its officers would exhibit commonsense and address this matter without requiring formal attendance at Court, I am not in a position to attend the hearing on July 26. However, a written submission supporting an application for adjournment will be filed.
Mr Pullen submits that “An application for adjournment of the hearing set down for 26 July 2012 was forwarded to the Court by the Applicant by facsimile transmission on 24 July for consideration at the 26 July hearing”. Exhibit KMP-4(9) to Mr Pullen’s affidavit filed on 15 February, 2013 in support of the present application is a document entitled “AN APPLICATION FOR AN ADJOURNMENT OF A HEARING”. That document takes neither the form of an application nor an affidavit but contains a request for an adjournment together with, it seems, the reasons given by Mr Pullen in support of the adjournment. It appears to have been faxed to a number “3248 1240”. It appears, however, that:
a)the document was not accompanied by a request for it to be filed;
b)it was not filed;
c)in any event, to the extent that the document purported to be an application in a case, it did not comply with the requirements of rules 4.08(1), 4.08(2)(b), 4.08(2)(c) or 4.08(3) of the Federal Circuit Court Rules.
Presumably the written submission to which Mr Pullen refers in his letter of 24 July, 2012 (extracted above) is the document entitled “AN APPLICATION FOR AN ADJOURNMENT OF A HEARING” sent to the Court on 24 July, 2012. It was not, however, sent to the respondents’ solicitors.
In the document entitled “AN APPLICATION FOR AN ADJOURNMENT OF A HEARING” Mr Pullen re-iterates his request for an adjournment and says that the basis for it is his unresolved application for an extension of time within which to appeal and, if given permission, his appeal. It is apparent that Mr Pullen was requesting an adjournment “to allow any appeal from a decision issued on a hearing held August 25, 2011 on part of the application to be finalised”. No other reason for the adjournment was advanced.
He gave no reason as to why he was “not in a position to attend the hearing on July 26”.
A reading of Mr Pullen’s material gives the impression that he had formed the view that his application for an adjournment, informally made as it was, could not be refused. Clearly, he expected the adjournment to be granted. That was so, despite having been informed that an adjournment would not be granted without the respondents’ consent and if the respondents did not consent to the adjournment, he would be expected to make proper application for the adjournment.
At all times Mr Pullen was informed that the final hearing fixed for 26 July, 2012 was not adjourned. Mr Pullen was also aware, because he raised it in his own correspondence (see for example exhibit SGM11 to Mr Muller’s affidavit filed on 26 July, 2012), that no adjournment was “automatically” granted despite Mr Pullen’s clear view that it ought to be.
Mr Pullen contends that an application for adjournment had been filed by him prior to 26 July, 2012. As I have recorded above, the only document which seemingly meets that description was a document sent by facsimile transmission to the Court at 2:33pm on 24 July, 2012. As I have already pointed out, that document was not in the correct form, but more importantly did not comply with rule 2.07(2) of the Federal Magistrates Court Rules 2001 (as they then were). In particular, there was no coversheet stating the action that Mr Pullen requested be taken in relation to the document. There was, for example, no request that it be filed.
Arguably, Mr Pullen has provided an explanation for his failure to appear in that he says that he applied for an adjournment that he expected to be granted. However, I do not consider that his explanation is either satisfactory or reasonable. Mr Pullen knew that the hearing listed for 26 July, 2012 had not been adjourned and that the respondents opposed the adjournment.
His position begs the question: what if the adjournment that he requested was not granted? The approach which Mr Pullen chose to adopt was an approach which could have only been designed to secure one outcome and that is an adjournment. But failing to appear on the day of the hearing in the expectation that the adjournment would be granted is, of course, fraught. Whether an adjournment is granted is a discretionary matter and although some cases for an adjournment are stronger than others, there can be no guarantee that an application for an adjournment will be successful.
A person who seeks an adjournment of a proceeding, yet fails to appear to seek that adjournment personally, runs the risk that the adjournment will be refused and proceedings will continue in their absence. That is precisely what happened here. I refused Mr Pullen’s request for an adjournment. In doing so I said:
4. There is no formal application filed by Mr Pullen in these proceedings for an adjournment. All that there is, it seems, is correspondence sent to my Associate and which has been in one way or another sent to the respondents. I do not intend to treat that as an application for an adjournment. In doing so, I refer to a decision of the Full Court of the Family Court of Australia in Buljubasic v Buljubasic (1999) FLC 92-865. In that case, the Full Court, which consisted of Lindenmayer, Finn and Warnick JJ, refused to consider an adjournment of proceedings communicated to the Court by facsimile to the Registrar. At paragraph 29 of the judgment of Lindenmayer J, his Honour said this:
Just before I come to that, I think it is appropriate to observe that in this modern day, there seems to be a tendency for people to believe that it is an appropriate way to communicate with Courts, or this Court at least, by sending facsimile transmissions to the registrar in the belief that they will come to the attention of the trial Judge. Ordinarily speaking, that is not a proper way for any litigant to seek to communicate with the Court. Whilst it is appropriate to communicate with the registry about procedural matters in that fashion, no doubt, it is not an appropriate way for a litigant, whether represented or unrepresented, to seek to communicate with the judge who is to hear the case.
Ordinarily speaking, if a party to proceedings, whether represented or otherwise, seeks to have an indulgence from the Court in the form of an adjournment or an extension of time for doing something which has been listed to be disposed of on a particular day, the litigant has an obligation either to appear before the Court in person to seek that indulgence or to send a legal representative on his or her behalf to make a proper application to the Court for that relief. It is not, generally speaking, an appropriate way to seek an adjournment of proceedings which are listed for hearing before the Court to send a letter, whether by facsimile or otherwise, to the registry on the morning of the hearing setting forth the request for an adjournment and stating the grounds upon which the application is made.
5. Those remarks were echoed by Warnick and Finn JJ. Finn J said this at paragraph 49, quote:
I would also want to endorse strongly the comments that have been made by the presiding Judge regarding the importance of adherence to the traditional practice that those who seek from the Court an adjournment of their matter, should appear themselves, or by legal representative, to seek the adjournment. I deplore the apparently ever increasing practice of sending letters, faxes and telephone communications to the Court for the purpose of seeking an adjournment.
Warnick J agreed.
6. Times have moved on since that judgment was delivered in 1999 and now, the preferred method of communication appears to be email. But the principle remains the same and the principle, in my view, is equally applicable to this Court irrespective of the type of matter it is determining. The type of jurisdiction being exercised by the Court has no impact on the procedural requirements which have, at their core, the requirements of natural justice. Communications with the Court seeking an adjournment without notice to the other side or without the other side’s consent are inappropriate. There is a practice direction issued by the Chief Federal Magistrate in respect of communications with chambers. If a party wishes to ask for an adjournment, there is an obligation to appear and seek it. But more than that, there is an obligation to properly invoke the Court’s processes by filing an appropriate application or application in a case and supporting the claim for relief, in this case a claim for an adjournment, with appropriate evidence. There is none of that in this case. I do not propose to grant any adjournment of the proceedings on the basis of correspondence.
Mr Pullen does not suggest that there is any other reason why he was unable to attend on 26 July, 2012. It appears that he simply chose not to do so on the basis that he had asked for, and expected to be granted, an adjournment.
Mr Pullen’s confidence that an adjournment would be granted was misplaced, in my view, because the only basis upon which he argued that the hearing should be adjourned was that he had filed an application for an extension of time in which to appeal the order of 5 June, 2012. According to the material filed by the respondents for the hearing on 26 July, 2012 (relied upon by them in the present application) that application had been listed for a directions hearing on 11 September, 2012. The appeal in respect of which Mr Pullen sought an extension of time was in relation to his claim for access to certain documents. That was, a discrete part of the application before the Court. No particular reason was apparent as to why the hearing of that part of the application which remained to be determined could not proceed notwithstanding the pending application for an extension of time within which to appeal the orders made on 5 June, 2012.
I accept Mr Pullen’s submission that there has been no undue delay by him in bringing this application. Reasons for decision were delivered orally, in open court on 5 June, 2012. Mr Pullen was not present, nor did he make application to appear by electronic means for the delivery of the judgment. Reasons were subsequently reduced to writing and provided to the parties on or about 23 October, 2012. Mr Pullen filed this application on 10 December, 2012, having attempted to file it on or about 30 October, 2012. I am not satisfied that the application ought to be refused because of any delay on Mr Pullen’s part.
Perhaps the most significant matter to be taken into consideration is whether there are material arguments available to Mr Pullen that might reasonably lead to the making of an order different of that sought to be set aside. In my view, there are no material arguments available to Mr Pullen that might reasonably lead to the making of an order different to that sought to be set aside. As the respondents point out, my reasons for judgment delivered on 26 July 2012 deal with the merits of Mr Pullen’s application. I considered those matters between paragraphs 9 and 31 of my reasons for judgment. I concluded that Mr Pullen’s application had no merit. I do not intend to repeat what I said in those reasons for judgment.
On my analysis, Mr Pullen argues, both in his written submissions and orally that there are two matters that have not already been considered and which might lead the Court to come to a different conclusion about the merits of his case that was dismissed on 26 July, 2012.
The first is that Mr Pullen says that “the Respondents initial lack of knowledge of their obligations under the PRIVACY ACT 1988,” is a development of relevance to “a possible enquiry into the conduct of the Respondents under the provisions of sections 30(1) and 179(1) of the BANKRUPTCY ACT 1966”.
Some background to this argument is necessary. By the judgment and orders that I delivered on 5 June, 2012 I dismissed Mr Pullen’s application for the production of the respondents file pursuant to either the Privacy Act 1988 or the Bankruptcy Act 1966. I summarised my conclusions for dismissing Mr Pullen’s application thus:
21. The request by the bankrupt to the trustees for access to the entire file was, in my view, properly declined. Insofar as the trustees declined to comply with the requests, it could be said that the trustees made a decision, which is reviewable under section 178(1) of the Bankruptcy Act 1966 and to the extent that such a decision has been made on 8 April as contended for by the bankrupt, I refuse to review it. The requests made were too wide and authorised by neither the Privacy Act 1988 nor the Bankruptcy Act 1966.
Mr Pullen points out that on 19 June, 2012 he requested that Insolvency and Trustee Service Australia grant him access to his entire file held by that organisation pursuant to the provisions of the Freedom of Information Act1982 and the Bankruptcy Act. He says that within a short period, ITSA had supplied a copy of its entire file in connection with his bankrupt estate save for two documents.
Mr Pullen submits that “if the Respondents had acted in a like manner, the Hearing of 25 August 2011 could have addressed all the substantive issues rather than just being partially heard, the subsequent Appeal could have been avoided, today's Application could have been avoided and the s 178 Application (BRG 1139/2012) could also have been avoided. In short, the Respondents have wasted the Court's time because they are not aware of their legislative duty.”
Additionally, Mr Pullen pursued a second application against the first and second respondents under the Privacy Act to secure inspection of certain documents held by them. For reasons that I delivered on 27 February, 2013 Mr Pullen’s application was, in part, successful: Pullen v Joiner [2013] FMCA 172.
However, even if what Mr Pullen argues is correct, it is difficult to see how orders that are different to those made by me on 26 July, 2012 would be made having regard to the matters to which I have just referred. In my view, those matters are entirely irrelevant to the proper determination of Mr Pullen’s principal application. Mr Pullen did not explain how those matters would lead to the making of orders which were different to those made on 26 July, 2012. He did not suggest that the first and second respondents had produced to him any documents pursuant to the orders of 27 February, 2013 which would make any material difference to his principal application.
The second matter raised by Mr Pullen arises, he says from the “plethora of judicial precedents whereby it is clearly established that justices have a positive obligation to help self-represented litigants and to ensure that no plaintiff is unfairly deprived of the opportunity to have a case tried.”
Mr Pullen also refers to s.51(xxiv) of The Constitution:
The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to the service and execution throughout the Commonwealth of the civil and criminal process and the judgements of the courts of the States.
Mr Pullen points out that in Re Brook 33 L.J. C.P. 246 Erie CJ said:
No man can be legally bound by a judgement given behind his back and without his having had an opportunity of being heard.
Mr Pullen, of course, is entirely right. There is an obligation on Courts to assume the burden of endeavouring to ascertain the rights of a self-represented party where those rights might be obfuscated by that party’s own advocacy: Neil v Nott (1994) 121 ALR 148. Moreover, “courts recognise that accidents and oversights can sometimes occur which, unrepaired, will occasion an injustice”: Del v Director-General, NSW Department of Community Services (1997) 190 CLR 207.
However this is not a case where judgment has been given behind Mr Pullen’s back without his having had an opportunity of being heard. Mr Pullen had the opportunity of being heard, but chose not to take it up. Rather, he chose to apply for an adjournment in circumstances where, if the adjournment was refused, the hearing he sought to have adjourned would proceed. By my reasons for judgment delivered orally on 25 July, 2012 and subsequently reduced to writing, I attempted to ascertain the rights of Mr Pullen. I did so by reference to his application and the extensive affidavits he had filed in support of it (which largely take the form of submission). His submissions on this application concerning the merits of his principal application do not suggest that I misunderstood or misapprehend his arguments. Finally, what has occurred in this case has not occurred by reason of any accident or oversight, either on the part of the Court or in my view, on Mr Pullen’s part.
Conclusion
In my view, Mr Pullen has not demonstrated a reasonable explanation for his failure to appear at the hearing of these proceedings on 26 July, 2012. Although he has promptly applied to have the orders made on that day set aside, I am not satisfied that Mr Pullen has any material arguments available to him that might reasonably lead to the making of different orders to those now sought to be set aside.
The application must be dismissed.
The respondents seek an order that Mr Pullen pay their costs of this application. Such an order is appropriate. I order the applicant to pay the respondents’ costs of and incidental to the application to be taxed and paid in accordance with the Federal Circuit Court (Bankruptcy) Rules 2006.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Jarrett
Associate:
Date: 20 September 2013
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