Re Morris; Morris v Maroudas
[1986] FCA 223
•06 JUNE 1986
Re: CHARLES RICHARD MORRIS and PAMELA MORRIS t/as "COUNTRY WIFE": "EXTRA MEATY
SAUSAGES": "THE AUSTRALIAN SAUSAGE CO."; CHARLES RICHARD MORRIS and PAMELA
MORRIS
And: JOHN MAROUDAS and SHIRLEY JANET MAROUDAS
No. 105 of 1983X
Practice and Procedure
COURT
IN THE FEDERAL COURT OF AUSTRALIA
GENERAL DIVISION
BANKRUPTCY DISTRICT OF THE STATE OF WESTERN AUSTRALIA
Muirhead J.
CATCHWORDS
Practice and Procedure - Federal Proceedings (Costs) Act - Bankruptcy Act - application to stay proceedings adjourned - respondent received no notice of hearing date - applicant seeks cost certificate in respect of day of adjournment under s.10 - adjournment not equivalent to discontinue of hearing.
Bankruptcy Act 1966 s.33(1)(a)
Federal Proceedings (Costs) Act 1981 s. 10
HEARING
PERTH
#DATE 6:6:1986
ORDER
Application for costs certificate refused.
Note: Settlement and entry of orders is dealt with in Rule 124 of the Bankruptcy Rules.
JUDGE1
This was an application to stay proceedings in execution of judgment of the District Court of Western Australia.
On the 26 May I published my decision dismissing the application. I ordered that the applicants should pay the respondents' costs.
The applicants' counsel has submitted that I should grant a costs certificate pursuant to the Federal Proceedings (Costs) Act 1981 in respect of an earlier occasion when the matter was before the court and was adjourned on the application of the respondents' counsel.
In March 1986 the Deputy Registrar of this court set down the application for hearing on 10 April. By letter dated 12 March the court purported to notify the respondents' solicitors that the matter was listed for hearing on that date. A duplicate of the letter correctly addressed is on file. For present purposes I accept the letter was not received, at least by those responsible for conduct of the application.
On 8 April, two days before the scheduled hearing, the respondents' solicitor wrote to the Deputy Registrar stating that he had, only the day before, become aware of the fixture when the applicants' solicitor communicated with him concerning inspection of documents. He then advised an adjournment would be sought.
On 10 April, the applicants were ready to proceed. The respondents' counsel sought an adjournment which I considered in all the circumstances should be granted. The applicants seek a certificate for legal costs, confined to 10 April, pursuant to s.10 of the Act. For relevant purposes this section reads as follows:
"(1) .......
(2) Subject to this Act, where any proceedings in a court to which this section applies are rendered abortive by reason that the person, or a person, before whom the proceedings are being conducted dies, resigns, or is removed or dismissed from, his office, suffers a protracted illness or otherwise becomes unable to continue with, or to give judgment in, the proceedings, the court may, on the application of a party to the proceedings, grant to that party a costs certificate in respect of the proceedings.
(3) Subject to this Act, where -
(a) the hearing of any proceedings in a court to which this section applies is discontinued and a new hearing is ordered; and
(b) the discontinuance and new hearing are not attributable to the neglect, default or improper act of any party to the proceedings,
the court may, on the application of a party to the proceedings, grant to that party a costs certificate in respect of the proceedings.
(4) The certificate that may be granted under sub-section (2) or (3) by a court to a party to proceedings that have been rendered abortive or the hearing of which has been discontinued, as the case may be, is a certificate stating that, in the opinion of the court, it would be appropriate for the Attorney-General to authorize a payment under this Act to that party in respect of such part as the Attorney-General considers appropriate of any costs incurred by that party in relation to those proceedings."
Counsel for the applicants, who relies on sub-s.(3) submits that the adjournment ordered through no fault of his clients was tantamount to a discontinuance of the hearing of the proceedings. The word discontinuance has a well established meaning. It envisages the cessation of something that was on foot. It is a word which is not to be found in the Bankruptcy Act 1966 and as far as I can see there are no specific provisions for discontinuance of an application as opposed to adjournment or dismissal. Sub-section 33(1)(a) of the Bankruptcy Act empowers the court to adjourn matters before it.
The adjournment I granted was not a discontinuance of the hearing of the application. The hearing had not commenced. Nor did I order a "new hearing" as a hearing had neither been conducted nor initiated. I simply postponed the hearing to a later date.
In my opinion sub-s.(3) as is the case with sub-s.(2), seeks to grant relief to litigants whose liability for costs is increased by reason of the fact that a hearing on foot is aborted by circumstances not contributed to by fault or neglect of any party to the proceedings. It is in my view an extension to the relief granted in sub-s.(2) which is more specific in setting out the circumstances. It may for instance be referable to cases where the sickness or death of counsel intervenes under circumstances which require a discontinuance of the hearing which is under way at the time - probably a rare event - but one which as a matter of justice may persuade a court in the interests of justice to recommence the hearing de novo. It may also apply to disruption of a hearing or interference with the court's capacity to continue the hearing by external causes.
Finally I comment that had the legislature intended to cover adjournments it would surely have inserted the words "or adjourned", or "adjournment" after the words "discontinued" and "discontinuance" respectively in sub-s.10(3).
To grant a certificate in the present circumstances would be to place an interpretation on the sub-section which would not only have wide ramifications but which would unduly strain the wording of the sub-section in a manner contrary to the apparent legislative intent.
For the above reasons I decline to grant a certificate.
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