Queensland Law Society Incorporated v Warren
[2015] FCCA 3563
•21 December 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| QUEENSLAND LAW SOCIETY INCORPORATED v WARREN | [2015] FCCA 3563 |
| Catchwords: BANKRUPTCY – Where there is a judgment debt pursuant to a decision of QCAT – whether QCAT is a court. |
| Corney v Brien [1951] HCA 31 Ferris v Queensland Building and Construction Commission [2015] FCCA 176 Medical Board of Australia v Judge Horneman-Wren & Leggett (2013) QSC 339 Owen v Menzies (2013) 2 Qd R 327 Wren v Mahony [1972] HCA 5 |
| First Applicant: | QUEENSLAND LAW SOCIETY INCORPORATED |
| Respondent: | ALEXIA MARGARET WARREN |
| File Number: | BRG 1033 of 2015 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 21 December 2015 |
| Date of Last Submission: | 21 December 2015 |
| Delivered at: | Brisbane |
| Delivered on: | 21 December 2015 |
REPRESENTATION
| Solicitor for the Applicant: | Mr Hancock |
Solicitors for the Applicant: | Tucker & Cowen Solicitors |
| The Respondent appeared in person |
ORDERS
The respondent pay the applicant’s costs of and incidental to the adjournment of the hearing of the creditor’s petition in an amount to be agreed between the parties and failing agreement to be fixed on the next date.
The application be adjourned to 22 January 2016 at 10.00 a.m. for hearing of the creditor’s petition in the Federal Circuit Court of Australia sitting at Brisbane.
No sworn evidence will be filed by leave on that date except for any statutory affidavits that are required to be filed by a petitioning creditor.
All material upon which the parties wish to rely must be filed no later than 5 days prior to 22 January 2016.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 1033 of 2015
| QUEENSLAND LAW SOCIETY INCORPORATED |
Applicant
And
| ALEXIA MARGARET WARREN |
Respondent
REASONS FOR JUDGMENT
(ex tempore)
A bankruptcy court is always anxious to make sure that proceedings before it are regular. A manifestation of that is what is talked about in the High Court in cases like Wren v Mahony (1972) 126 CLR 212. That is to say that a court may inquire into whether there is truly a debt owed if the circumstances suggest that there is a reason for such an inquiry.
Here there is, on its face, no reason for such an inquiry because there were proceedings in a court – in the Queensland Civil and Administrative Tribunal – which seemingly were contested and which led to the making of orders which ultimately led to the making of an order in December of 2014 for the payment by the respondent to this application to the petitioning creditor.
The petitioning creditor wishes to proceed today on its creditor’s petition. The respondent says that there is good reason to adjourn the proceedings so that more material can be placed before this Court. I am not at all convinced that any further material before this Court will be of any use. The further material was said to go to show that there were proceedings on foot to set aside the judgment upon which these bankruptcy proceedings were based. But those proceedings concern an order of the state Magistrates Court. That order registered a judgment or order made by QCAT. But for reasons that I explained in Ferris v Queensland Building and Construction Commission [2015] FCCA 176, the existence of an order of a Magistrates Court, or any other court for that matter, that registered the final decision of QCAT was unnecessary to sustain a bankruptcy notice and subsequently a sequestration order based upon an act of bankruptcy constituted by non-compliance with the bankruptcy notice that relied on the decision of QCAT. In a nutshell, I came to that conclusion because QCAT is, in fact, a court – see the QCAT Act itself and, in particular, I think section 164. See also Owen v Menzies (2013) 2 Qd R 327 and the Medical Board of Australia v Judge Horneman-Wren & Leggett [2013] QSC 339.
If QCAT is a court, then its judgments given at the conclusion of a hearing are final judgments or orders as I explained in Ferris v QBCC. So whatever is happening in the Magistrates Court is really not to the point.
I am told, however, that there are proceedings on foot now to have the decision of QCAT set aside. That presents a greater difficulty for this application proceeding. As has been explained by Mr Hancock in his very careful submissions, there are good arguments to be made as to why, as a matter of discretion, the adjournment ought to be refused. The respondent has brought proceedings in QCAT to set aside both the orders, it seems, of 2013 and the subsequent orders of December, 2014 but has brought those proceedings belatedly.
The chronology itself tends to support the hypothesis that all of these applications are nothing more than tactical manoeuvres designed to stave off what might be seen as the inevitable consequence of these proceedings. It might be all of a matter of too little, too late. But given the caution ordinarily exercised by a bankruptcy court with respect to the efficacy of the judgments and orders upon which bankruptcy notices are based, it seems to me that I really ought to adjourn these proceedings.
There are two other matters that inform that consideration. The first is there is, really, no prejudice to the petitioning creditor other than the suggestion that the petitioning creditor might be worn down by the respondent’s conduct. I am not so sure that that will occur, but I guess that is a matter for the petitioning creditor. The second is that a delay in the finalisation of the creditor’s petition will not work against the petitioning creditor in the sense that the relevant relation back periods and other relevant periods under the Bankruptcy Act commenced from the date of the act of bankruptcy rather than the date of the making of a sequestration order, and so in the event that the QCAT decision or order remains, then the date of the act of bankruptcy will remain as well. So there is no real prejudice in that sense either.
For those reasons, I do intend to adjourn these proceedings to 22 January at 9;30am. On that occasion I will receive no sworn evidence on the morning of the hearing, except for the statutory affidavits that are required to be filed by a petitioning creditor.
Of course, there ought to be an order for costs this morning. This application has been adjourned at the request of the respondent and he or she who seeks an indulgence ought to pay for it. It is the respondent who says that the application is not ready to proceed because she wishes to place further material before the Court. Although I have ruled against that, it is being adjourned because of actions taken by the respondent. In those circumstances, there is no warrant to reserve the costs because whatever the outcome in the proceedings ultimately, today’s wasted costs are attributable to the respondent and the respondent alone.
The letter of 17 December, 2015 does not assist because whether the suggestions and requests made by the respondent were acceded to by the applicant, the application would have been before the Court today in any event. So the letter of 17 December does not assist. The argument about the authority of the Law Society or perhaps the solicitors to act in these proceedings, again, does not go to the question of whether the costs of today are thrown away by any of the respondent’s conduct. Again, the seminal proposition is he or she who seeks an indulgence from the Court generally meets the costs of it. Today’s application is no exception to that rule.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 21 December 2015.
Associate:
Date: 22 January 2016
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