Re: Carpenter

[1990] FCA 841

BANKRUPTCY DISTRICT IN THE 1

PE OF NEW SOUTH WALES AND THE )

Re: KENNETH JAMES CARPENTER

Debtor

Ex Parte: CLEMENT ANTHONY GYE m..-22

Einfeld J Svdney 28 Auaust 1990

This application, brought on urgently and at short notice, is probably the least meritorious and worst presented application I have ever had to deal with or experienced in almost 30 years in the law. That categorisation of the application merely adds to the conviction that I have had since I first became involved with this litigation, that the parties are not really serious about it at all. It multiplies as the days go on and they are merely quite improperly using public facilities financed by the taxpayer for the carrying of a most idiotic form of confrontation. It is more than time that something was done to bring this to an end. Worthy litigants are sitting around waiting for an opportunity to have cases heard while some people use the courts as some form of personal plaything. I regard this matter as bordering on the scandalous.

On 3 November 1989 I pronounced a sequestration order against	No 1608 of 1989 on the petition of the creditor Clement	the estate of the debtor, Kenneth James Carpenter, in matter
Anthony Gye. Because this was a mere part of a litany of litigation and because it was intended to appeal from the pronouncement of the sequestration order, on Tuesday 7 November 1989 I suspended its operation until 4 p.m. on Friday November 10 or such earlier time as was fixed for the convening of a Full Court to hear the proposed appeal.
At the same time I directed the Registrar not to sign or seal the sequestration order until the same time or event and reserved liberty to apply. I was informed then that it was intended that the order suspending the operation of the sequestration order and directing the Registrar to stay his hand should be presented to a Full Court as soon as was reasonably practicable. It was my intention at the time, and I so stated, that when the Full Court assumed control of the matter, it would then decide what should happen to the sequestration order and the stay of proceedings preventing its being brought into effect. I am informed that that order was, as has been put, not taken out, although even assuming that there is a requirement that such an order be taken out to give it some sort of effect, it seems to me that this so-called
failure does not address the terms in which the order was
pronounced.
As it happens, the Full Court convened to hear the matter prior to 10 November, namely on 8 November, in the form of a single Judge of the Court exercising the powers of a Full Court. What the Court convened to hear was an appeal lodged I had made suspending the sequestration order's operation and directing a temporary stay of its terms. This, of course, was not envisaged at the time when the limit of 4 p.m. on 10 November was fixed because it was not foreshadowed at the hearing on 3 November that there would be such an appeal. What was stated then was that there would be an appeal by the debtor against the making of the sequestration order, not an appeal by the creditor.
However, as I say, a Full Court assembled on 8 November to entertain the creditor's appeal. I am dependent entirely upon the statement of the solicitor for the debtor for the information, to which the creditor's solicitor cannot agree - because he says he does not know - but does not challenge, that on the following day the appeal was heard and dismissed. It seems to me extraordinary that the legal representative of the appellant in appellate proceedings which took place before a Full Court of this Court did not know what had happened in the proceedings on the appeal which he had lodged. No one
that the Full Court dismissed the appeal on 9 November. However, that is the fact and it is not therefore challenged involved in serious litigation would be in this position.
In fact the consequence of the dismissal of that appeal is not at all for me to make comment on or attempt to interpret or resolve, still less is it appropriate that I should entertain any application to interpret its terms.
I am next informed by the solicitor for the debtor that on 10 November the Full Court ordered that the suspension of the sequestration order which I had made on 7 November and which expired at the latest at 4 p.m. on 10 November, should be continued until the determination of the appeal by the debtor against the making of the sequestration order. In other words, the Court ordered a stay of proceedings on that sequestration order. Although in the information before me nothing is said concerning the fate of my direction that the Registrar not sign or seal the order, that is not surprising because if the sequestration order was suspended there would be nothing to sign or seal. In any event, my part in the holding up of the signing and sealing expired at the latest at 4 p.m. on 10 November.
At present the sequestration order is subject only to the orders the Full Court made on 10 November. I am informed that the appeal of the debtor is presently adjourned in the Full Court. No application appears to have been made to the Full
any action on the sequestration order at all. I should add Court since 10 November 1989 in relation to its order staying
that not a word of what I have just related is supported by a single document or even the minutest form of evidence today, but it appears that that is where the matter stands at the present.
Today the legal representative of the creditor makes an oral application without any evidence, purportedly pursuant to liberty to apply reserved by me on 7 November, to the effect that, as he puts it, I revoke the stay orders that I made on 7 November. He advances no argument as to the basis of my jurisdiction in the matter, still less does he provide any reasons why, if I had jurisdiction, I would be likely to exercise it. So far as the jurisdictional part is concerned, he relies upon some authority, the first of which is just under a century old, before Australia was federated, that if an order is not, as it is called, taken out, someone - I am not entirely sure who - cannot deal with it as it had been taken out. He argues in some way that the order is valid and has effect but that because it has not been taken out, it is I, not the Full Court, who has jurisdiction to deal with it.
In my opinion that argument has not the slightest conceivable merit. Perhaps it could have been put to the Full Court just before and at the time it was considering the extension of my
However, it is simply untenable to propose that the Full Court order to suspend the operation of the sequestration order from 10 November onwards until the appeal of the debtor is heard.
having made its order, against which there has been no appeal nor any attempt to have it revoked or reconsidered, the single judge whose judgment led to the convening of the Full Court could come back and deal with the matter. The concept only has to be stated to be revealed for its absurdity.
If such a thing were to happen and I were to make an order, as the creditor wishes, revoking the suspension and bringing the sequestration order into immediate operation, there would be conflicting orders of the judge at first instance and a Full Court which had convened to hear and deal with an appeal from the original judgment making the sequestration order.
Assuming jurisdiction, how the creditor argues that this matter could ever be resolved in his favour, I do not know. This is because the creditor also presents no case for the making of such a revocation order even if there was jurisdiction. The original stay orders were unsuccessfully appealed. The creditor says that the Registrar cannot carry out his duties and the trustee is impeded in his dealing with the bankruptcy and other matters. As the circumstances of this matter seem to me, this is simply nonsense. In any event, it begs the real question, which is whether the sequestration order should have been made in the first place, a matter with which the Full Court has been asked to deal and
with which no doubt in due time it will. Next. My order expired - so far as its effects were concerned - at the latest on 10 November at 4 p.m. Since that time the
status or fate of the sequestration order has been in the sole province of a Full Court. The Full Court has not only assumed control of the matter but has made orders. Amongst the orders it has made is one dismissing the creditor's challenge to my orders staying the operation of the sequestration order pending the appeal. However, those orders were of very short duration and have long since ceased to have any effect in governing the progress of the sequestration order at all. There is thus absolutely nothing for me to revoke even if there was jurisdiction and grounds were made out for its exercise.
Hence, in my view, there is no semblance of merit to this application. It is also not a proper exercise of the liberty to apply which was reserved on 7 November. Liberty to apply is reserved for the purpose of clarifying or otherwise dealing with loose ends that arise in relation to orders or directions of the Court. These orders had no continuing influence in or control over the relations of these parties after 4 p.m. on 10 November and the attempt to exercise the liberty to apply on 28 August 1990, some nine months later, is a completely inadmissible and improper use of the facility. the application for revocation is dismissed.

RECORDED NOT TRANSCRIBED

I order that the creditor pay the debtor's costs of this application.