Ross Mining NL, in the matter of Donnelly v Donnelly

[1999] FCA 1343

FEDERAL COURT OF AUSTRALIA

Ross Mining NL, in the matter of Donnelly v Donnelly [1999] FCA 1343

IN THE MATTER OF ANDREW JOHN DONNELLY & DAVID MARK MUNDINE

ROSS MINING NL
v ANDREW JOHN DONNELLY & DAVID MARK MUNDINE
N7708 OF 1999

EMMETT J
15 SEPTEMBER 1999
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 7708 OF 1999

IN THE MATTER OF ANDREW JOHN DONNELLY AND
DAVID MARK MUNDINE

BETWEEN:	ROSS MINING NL Applicant
AND:	ANDREW JOHN DONNELLY First Respondent
DAVID MARK MUNDINE Second Respondent
JUDGE:	EMMETT J
DATE OF ORDER:	15 SEPTEMBER 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        There be no order as to the costs of the proceeding.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 7708 OF 1999

IN THE MATTER OF ANDREW JOHN DONNELLY AND
DAVID MARK MUNDINE

BETWEEN:	ROSS MINING NL Applicant
AND:	ANDREW JOHN DONNELLY First Respondent
DAVID MARK MUNDINE Second Respondent

JUDGE:	EMMETT J
DATE:	15 SEPTEMBER 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 4 August 1999, I embarked on the hearing of questions arising under a petition filed by Ross Mining NL (“the petitioner”) seeking sequestration orders against the estates of Andrew John Donnelly and David Mark Mundine.  I made orders on that day that there be determined separately from, and prior to, the decision of any other question arising in the proceeding, the question of whether a bankruptcy notice had been served on Andrew John Donnelly on 26 May 1999, as alleged in the petition.

2. The only ground of opposition that had been filed at that stage was notice of intention to oppose the petition of the ground that the bankruptcy notice had not been served as alleged.  The matter was adjourned part heard on 4 August 1999, and I resumed the hearing on 20 August 1999.  On that day, I made a declaration that, on 26 May 1999, there was delivered to Andrew John Donnelly in the Registrar’s Court of the Land and Environment Court a copy of a document which was annexure A to an affidavit of Clifford Robert Ireland sworn 29 June 1999.

3. In the course of the hearing, a question was raised as to whether or not the document in question was, in fact, a valid bankruptcy notice.  I made clear, in giving reasons for making the declaration that I made, that the question of the validity of the bankruptcy notice was not to be determined.  That was a concession to the respondents who should, in ordinary circumstances, have raised previously all issues intended to be raised in opposition to the petition.  However, out of consideration for the fact that the respondents were not represented by qualified legal practitioners, I was prepared to make that concession.

4. I stood the matter over, following the making of that declaration, for further directions on 10 September 1999.  On that day, there was no appearance for the respondent, Mr Donnelly, although Mr Mundine appeared in person.  Mr Mundine had previously not appeared in the proceedings at all.  The petitioner asked that the petition be dismissed.  Mr Mundine did not oppose that course.  Since there was no appearance for Mr Donnelly at that stage, I ordered that the petition be dismissed.  However, I reserved to the parties liberty to apply for costs, if so advised.  Pursuant to that liberty, the matter has been restored today for the purposes of argument on costs. 

5. Mr Oshlack, appearing by leave on behalf of Mr Donnelly, makes the obvious observation that the respondent has been brought to court, as it turns out unnecessarily, in order to defend a petition that has now been dismissed.  The basis of the dismissal is not clear.  However, it may be that I should draw an inference that some decision has been made by the petitioner that there is a question as to the validity of the bankruptcy notice.  That is pure speculation.  I did, in the course of my reasons for making the declaration that I made on 20 August 1999, indicate that I felt some disquiet about the circumstances in which the petition had been brought and the manner of service of the document in question.  However, I did make it clear that I was not expressing any opinion from a judicial point of view, but simply making an observation as to the way in which the matter had been conducted. 

6. I am mindful of the observations made by Olney J in Morton v Official Receiver (1996) 68 FCR 360. That case involved an appeal from a taxing officer’s orders. The question was whether or not a litigant in person was entitled to recover certain losses by way of costs. Olney J observed that, even if the applicant had made out such losses, the Court’s authority did not extend to making orders for the payment of such losses as part of the costs of the proceeding.

7. I do not, of course, know what costs have been incurred by the respondents that would be recoverable if I make an order for costs.  However, because the respondents have not been represented by qualified legal practitioners, the extent of any costs recoverable would be very limited.  That, in itself, is not a reason for refusing an order for costs.  However, the fact that the respondents have generally been unsuccessful, in relation to the question that I have heard and determined influences me in my consideration of the question of costs. 

8. I reserved the question of the costs of the hearing which I had embarked on until the ultimate result of the proceeding.  I have a broad discretion as to the costs of the petition.  The fact is that no defence to the petition other than non-service of the bankruptcy notice was raised until after considerable costs had been incurred in the pursuit of that question.  In all of the circumstances, I consider that it is appropriate that there be no order as to the costs of the proceeding.

9. Accordingly, I decline to make any order as to the costs of the proceedings.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:             23 September 1999

Counsel for the Applicant:	B.J. Skinner
Solicitor for the Applicant:	Blake Dawson Waldron
Mr Donnelly was represented by Mr A. Oshlack
Mr Mundine did not appear
Date of Hearing:	15 September 1999
Date of Judgment:	15 September 1999