Pullen v Joiner - [2013] FCCA 1377

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)
Federal Circuit Court Rules 2001, rr.2.07(2), 4.08(1), 4.08(2)(b), 4.08(2)(c), 4.08(3), 16.05(2)(a)

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Pullen v Joiner

Details

AGLC: Pullen v Joiner [2013] FCCA 1377
Case: [2013] FCCA 1377
Decision Date: 20 September 2013

CaseChat Overview and Summary

In *Pullen v Joiner*, heard in the Federal Circuit Court of Australia, the applicant, Mr Pullen, sought to set aside an order made on 26 July 2012, which dismissed his application. The original application was brought against the first and second respondents, who were trustees of Mr Pullen's bankrupt estate, and the third respondent, an employee of the trustees. The dismissed application primarily concerned Mr Pullen's access to files held by his trustees, pursuant to either the *Bankruptcy Act 1966* or the *Privacy Act 1988*.

The court was required to determine whether to exercise its discretion to set aside the previous order made in Mr Pullen's absence. To succeed, Mr Pullen needed to demonstrate a valid explanation for his failure to appear at the hearing, show that his application to set aside the order was made without undue delay, and establish that his underlying case had merit, meaning there was a prospect of a different outcome if the matter were reheard.

Judge Jarrett found that Mr Pullen's explanation for his absence was that he mistakenly believed his application for an adjournment would be granted as a formality. This belief was not supported by the court's communications, which had indicated that an adjournment would not be granted without the respondents' consent and that a formal application would be required if consent was refused. Mr Pullen had sought an adjournment due to a pending appeal application, but the respondents refused to consent, and his subsequent attempt to formally apply for an adjournment did not comply with the court rules. The judge concluded that Mr Pullen had not provided a sufficient explanation for his failure to appear and had not demonstrated that his underlying case had merit.

Consequently, the application to set aside the order of 26 July 2012 was dismissed. Mr Pullen was ordered to pay the respondents' costs of and incidental to the application.

Orders

Orders of the court

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 Act 1966 or the Privacy Act 1988. 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.

10.

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.

11.

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.

12.

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.

13.

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.

14.

He gave no reason as to why he was “not in a position to attend the hearing on July 26”.

15.

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.

16.

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.

17.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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