Pullen v Joiner

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.