Sheahan, John v Cooper, Noelene Michelle

[1998] FCA 1383

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SG 112 of 1998

BETWEEN:

JOHN SHEAHAN
Trustee of the Bankrupt Estate of Jillian Helen Marshall
and the Bankrupt Estates of Richard John Cooper and
Simon Vincent Cooper
APPLICANT

AND:

NOELENE MICHELLE COOPER
FIRST RESPONDENT

JANET ETHEL COOPER
SECOND RESPONDENT

MARTIN JAMES COOPER
THIRD RESPONDENT

ANDREW CHARLES COOPER
FOURTH RESPONDENT

ROTHMORE PTY LTD
ACN 007 956 327
FIFTH RESPONDENT

JUDGE:	MANSFIELD J
DATE:	16 OCTOBER 1998
PLACE:	ADELAIDE

REASONS FOR DECISION

HIS HONOUR:  This matter, instituted on 7 September 1998, came on for hearing for directions on 23 September when counsel appeared both for the applicant and for the five named respondents.  At that time directions were given for the exchange of affidavits and the hearing date was fixed for today.

The respondents did not comply with those directions in the sense that the time within which all affidavits were to be filed on behalf of the respondents was fixed as 12 October 1998 but six of those affidavits were only filed on 15 October, at which time an appearance on behalf of those respondents was also filed by a solicitor acting for them.

I also understand that counsel appearing on 23 September 1998 is no longer retained.

When the matter was called on for hearing this morning, neither counsel nor solicitors for the respondents appeared.  Ms Noelene Michelle Cooper, one of the respondents appeared and sought to speak on behalf of all the respondents.  She sought an adjournment.  She told me that she did not know why her solicitor was not present this morning, or why the respondents’ solicitor was not present this morning, and that only yesterday a counsel had been consulted with a view to being engaged and that counsel was not available for the hearing today.

I do not regard those circumstances as satisfactory.  I am adjourning this matter in part because I assume that there is something more underlying the non-appearance of counsel or solicitors at the hearing this morning than that which appears on the face of it:  I do not know.  Because counsel for the applicant is available in the reasonably near future, on one of the few dates that the Court has available to hear the matter later, I propose to adjourn the matter to that date.  I am concerned that within the affidavits filed on behalf of the respondents there is some proper basis for opposition to the orders sought (which counsel for the applicant asserts does not exist) and which presently, uninformed by submissions and having had only a brief opportunity to read those affidavits, I presently do not perceive.

Because of the consequences of the orders sought, in my view I should give the respondents in the circumstances outlined an opportunity to have their day in Court when they have had a further opportunity to represent their position through counsel or solicitors or otherwise may be better prepared to represent their position themselves.  I accordingly adjourn the matter for hearing to 10 am on Thursday, 29 October 1998.  I will reserve the costs of the adjournment today.

I certify that this and the preceding one (1) page is a true copy of the Reasons for Decision herein of the Honourable Justice Mansfield.

Associate:

Dated:             27 October 1998

Counsel for the Applicant:	Mr R Whitington QC with him Mr G Davis
Solicitors for the Applicant:	Piper Alderman
First Respondent in person
Date of Hearing:	16 October 1998
Date of Judgment:	16 October 1998