Registrar of Aboriginal and Torres Strait Islander Corporations v Monaghan

[2016] FCA 329

FEDERAL COURT OF AUSTRALIA

Registrar of Aboriginal and Torres Strait Islander Corporations v Monaghan [2016] FCA 329

File number(s):	ACD 22 of 2015
Judge(s):	GRIFFITHS J
Date of judgment:	1 April 2016
Catchwords:	PRACTICE AND PROCEDURE – interlocutory application - whether to vacate a trial date – death of adult son of a party to proceedings – medical reports
Legislation:	Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth)
Date of hearing:	1 April 2016
Registry:	New South Wales
Division:	General Division
National Practice Area:	Commercial and Corporations
Sub-area:	Corporations and Corporate Insolvency
Category:	Catchwords
Number of paragraphs:	6
Counsel for the Applicant:	Mr D de Jersey
Solicitor for the Applicant:	Minter Ellison
Counsel for the First and Second Respondents:	Mr K Pattenden
Solicitor for the First and Second Respondents:	Legal Aid ACT
Solicitor for the Third Respondent:	Ms S Pennicott, Pennicott Weir Lawyers

ORDERS

ACD 22 of 2015

BETWEEN:

REGISTRAR OF ABORIGINAL AND TORRES STRAIT ISLANDER CORPORATIONS

Applicant

AND:

FRED MONAGHAN

First Respondent

TERESA ELSA MONAGHAN

Second Respondent

KIM MAREE PETERS

Third Respondent

JUDGE:	GRIFFITHS J
DATE OF ORDER:	1 APRIL 2016

THE COURT ORDERS THAT:

1.The listing of this matter for trial for four days commencing on 4 April 2016 be vacated.

2.The trial be listed for hearing for three days only commencing at 10.15 am on 27 July 2016.

3.Subject to paragraphs 1 and 2, the orders made on 24 March 2016 remain in place save that:

(a)on or before 5.00 pm on 24 June 2016 the first and second respondents are to file and serve their defence;

(b)on or before 5.00 pm on 1 July 2016, the first and second respondents are to file and serve outlines of their written submissions in response to those of the applicant and which brings forward any positive submissions which they intend to make in resisting the applicant’s case and the relief sought; and

(c)on or before 5.00 pm on 15 July 2016, the applicant is to file and serve any outline of written submissions in reply.

4.The 13 subpoenas issued by the applicant be made returnable at 10.15 am on 27 July 2016.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

GRIFFITHS J:

1. In the substantive proceedings, the applicant seeks relief under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) against three former directors of the Southside Housing Aboriginal Corporation. The relief sought includes disqualification orders, civil pecuniary penalties and compensation orders. The trial was scheduled to commence on Monday, 4 April 2016 for four days.

2. By an interlocutory application dated 29 March 2016, the first and second respondents sought to have the hearing vacated.  That was because the second respondent’s son, who was also the first respondent’s stepson, unexpectedly passed away on 27 March 2016.  The applicants in the interlocutory application (the first and second respondents in the substantive proceedings) relied upon two medical reports in support of their application to have the trial date vacated.

3. The first report was by Dr Girish Talaulikar who is the director of Renal Services at Canberra Hospital and Health Services. Dr Talaulikar expressed concerns that the additional stress which would be caused by the first respondent appearing and participating in the court proceedings could have adverse implications for the first respondent’s emotional and physical state.  It is also noted that that opinion was expressed against the background of the first respondent having other health issues and having recently undergone surgery. 

4. The second report was by Dr Stephen Moulding from the Narrabundah Family Medical Practice and it related to the second respondent who, as stated above, is the mother of the deceased.  Dr Moulding stated that, in his opinion, for at least the next three weeks the second respondent would not be in a fit state to be able to give proper instructions to her legal representatives or fully participate in the court proceedings.

5. No date had been set for the deceased’s funeral.  The interlocutory application was not opposed by the applicant of the substantive proceedings and it was supported by the third respondent. 

6. In the circumstances, it is appropriate, in my opinion, to vacate the hearing date and to vary the orders which were made on 24 March 2016. 

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths.

Associate:

Dated:        4 April 2016