Slaven v Tisot

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FEDERAL COURT OF AUSTRALIA

Slaven v Tisot [2018] FCA 1579

File number: ACD 72 of 2017
Judge: GRIFFITHS J
Date of judgment: 19 October 2018
Catchwords: PRACTICE AND PROCEDURE – interlocutory application seeking leave for the first defendant to represent the second defendant and requesting vacation of the scheduled hearing and an extension to the existing timetable – leave granted for the first defendant to represent the second defendant – application otherwise dismissed
Legislation:

Federal Court of Australia Act 1976 (Cth), s 37M

Federal Court Rules 2011 (Cth), rr 1.34, 4.01(2)

Cases cited: Enviro Pak Pty Ltd v New Horticulture Pty Ltd [2013] FCA 306
Date of hearing: 19 October 2018
Registry: Australian Capital Territory
Division: General Division
National Practice Area: Commercial and Corporations
Sub-area: Corporations and Corporate Insolvency
Category: Catchwords
Number of paragraphs: 27
Counsel for the Applicant: Mr J Tisot appeared in person

Solicitor for the Respondents:

 Mr S Vuleta of Chamberlains

ORDERS

ACD 72 of 2017
BETWEEN:

MICHAEL EDWARD SLAVEN IN HIS CAPACITY AS LIQUIDATOR OF JT ELECTRICAL & PLUMBING PTY LTD (IN LIQUIDATION) ACN 091 997 894 (and others named in the Schedule)

First Plaintiff

AND:

JOHN PETER TISOT (and others named in the Schedule)

First Defendant

IN THE INTERLOCUTORY APPLICATION:
BETWEEN:

JOHN PETER TISOT

Applicant

AND: MICHAEL EDWARD SLAVEN IN HIS CAPACITY AS LIQUIDATOR OF JT ELECTRICAL & PLUMBING PTY LTD (IN LIQUIDATION) ACN 091 997 894
First Respondent
JT ELECTRICAL & PLUMBING PTY LIMITED (IN LIQUIDATION) ACN 091 997 894
Second Respondent

JUDGE:

GRIFFITHS J

DATE OF ORDER:

19 OCTOBER 2018

THE COURT ORDERS THAT:

1.Pursuant to r 1.34 of the Federal Court Rules 2011 (Cth) dispensation is granted to the second defendant from compliance with r 4.01(2), such that the first defendant may appear in this matter on behalf of the second defendant.

2.The interlocutory application dated 28 September 2018 otherwise be dismissed. 

3.The costs of the interlocutory application be the plaintiffs’ costs in the cause.

4.The case management hearing scheduled for 6 November 2018 be vacated. 

5.The defendants are to file and serve any evidence on which they intend to rely by 16 November 2018. 

6.The plaintiffs are to file and serve any evidence in reply by 23 November 2018. 

7.The plaintiffs are to file and serve a paginated tender bundle by 23 November 2018. 

8.The plaintiffs are to file and serve an outline of written submissions not exceeding ten pages in length by 23 November 2018. 

9.The parties are to seek to agree and file a statement of facts and issues on or before 28 November 2018. 

10.Notice that any witness is required for cross-examination must be given by 28 November 2018.

11.The defendants are to file and serve a written outline of submissions not exceeding ten pages in length by 30 November 2018. 

12.The parties are to file and serve a list of any objections to affidavit evidence by 30 November 2018 with a brief statement of the ground(s) of objection.

13.Liberty to apply on the giving of 48 hours’…

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Details
Case
[2018] FCA 1579
Decision Date

CaseChat Overview and Summary

The case of Slaven v Tisot involves an interlocutory application by the first defendant, seeking leave to represent the second defendant and requesting the vacation of the scheduled hearing and an extension to the existing timetable. The application was heard by the Federal Court, which was tasked with deciding whether the time for filing evidence should be extended, the hearing should be vacated and rescheduled, and whether leave should be granted for the first defendant to represent the second defendant.

The court declined to vacate the hearing date and instead made certain adjustments to the timetable. The court noted that the proceedings had been ongoing for some time and that the defendants had ample time to prepare their evidence. Although the first defendant raised concerns about discrepancies and inconsistencies in the documentation, the court found these issues insufficient to warrant a postponement. The court also considered the overarching purpose of civil litigation as expressed in s 37M of the Federal Court of Australia Act 1976 (Cth). However, the court did set a new deadline for the filing and serving of evidence and provided specific directions to ensure the hearing would run smoothly.

Regarding the second issue, the court granted leave for the first defendant to represent the second defendant under r 1.34 of the Federal Court Rules 2011 (Cth). This decision was made in light of the fact that the second defendant was not legally represented and the first defendant had a familiarity with the company's records.

In conclusion, the court dismissed the parts of the interlocutory application that related to the vacation of the hearing and made adjustments to the timetable. The second defendant was granted leave to be represented by the first defendant, Mr Tisot. The plaintiffs neither opposed nor consented to either limb of the interlocutory application.

Orders

Orders of the court

1. Pursuant to r 1.34 of the Federal Court Rules 2011 (Cth) dispensation is granted to the second defendant from compliance with r 4.01(2), such that the first defendant may appear in this matter on behalf of the second defendant.

2. The interlocutory application dated 28 September 2018 otherwise be dismissed.

3. The costs of the interlocutory application be the plaintiffs’ costs in the cause.

4. The case management hearing scheduled for 6 November 2018 be vacated.

5. The defendants are to file and serve any evidence on which they intend to rely by 16 November 2018.

6. The plaintiffs are to file and serve any evidence in reply by 23 November 2018.

7. The plaintiffs are to file and serve a paginated tender bundle by 23 November 2018.

8. The plaintiffs are to file and serve an outline of written submissions not exceeding ten pages in length by 23 November 2018.

9. The parties are to seek to agree and file a statement of facts and issues on or before 28 November 2018.

10. Notice that any witness is required for cross-examination must be given by 28 November 2018.

11. The defendants are to file and serve a written outline of submissions not exceeding ten pages in length by 30 November 2018.

12. The parties are to file and serve a list of any objections to affidavit evidence by 30 November 2018 with a brief statement of the ground(s) of objection.

13. Liberty to apply on the giving of 48 hours’ notice.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The interlocutory application dated 28 September 2018 raises two central issues. First, whether the time for the filing of evidence should be extended and the hearing which is proposed to commence on 3 December 2018 be vacated with a view to the hearing commencing sometime in March 2019. Secondly, should leave be granted for the second defendant to be represented by Mr Tisot. I will address each of those matters in turn. (a) Should the hearing be vacated and additional time be given for the filing of evidence? Mr Tisot has not persuaded me that the hearing scheduled for 3 December 2018 should be vacated and replaced with a timetable which would see the hearing commence sometime in March 2019. As noted above, the proceeding has been on foot for some time. Moreover, as long ago as December last year, the parties were then agreed that the hearing could commence on 11 May 2018. As noted above, the Court has previously dismissed an application by the first defendant to extend the time for the defendants to file and serve their evidence to 31 December 2018. On that day (20 July 2018), the matter was listed for hearing on 3 December 2018 and the time within which the defendants had to file their evidence was extended to 28 September 2018. The first defendant then left it to that day to file the current interlocutory application and the supporting affidavits. I do not doubt the magnitude of the documentation which has been served on the defendants, none of whom are legally represented (while noting that only the first and sixth defendants are active parties). The first and sixth defendants have had since mid-June to analyse that material, which is more than 4 months. It is apparent from Mr Tisot’s affidavit that he already had in his possession copies of some Company books which he has used to assist him in that analysis. As the sole director of the Company, it can be assumed that Mr Tisot has a good familiarity with the Company’s records, including relevant invoices. Mr Tisot says that certain discrepancies and inconsistencies have emerged and that there are errors in the last two creditors’ reports, but I do not regard those matters as providing a sufficient basis for vacating the hearing date. I have taken into account Mr Tisot’s evidence regarding his son’s health (which is unsupported by any independent medical evidence) and his responsibilities as the sole carer of his mother, but I do not consider that these matters outweigh the desirability of maintaining the current hearing date in order that the serious allegations made against the defendants be heard and determined so that there is finality. I have also taken into account the overarching purpose of civil litigation, as expressed in s 37M of the Federal Court of Australia Act 1976 (Cth). I will, however, make certain adjustments to the timetable which will require the defendants to file and serve any evidence upon which they intend to rely by no later than 16 November 2018, which is approximately four weeks from now. It is assumed that the defendants have proceeded to prepare for the hearing in circumstances where the outcome of their interlocutory application dated 28 September 2018 was unknown. I will provide a short period for the plaintiffs to file any evidence in reply and also make a direction which aims to have the parties seek to agree a statement of facts and issues. I will also make directions for the filing and serving of brief outlines of written submissions and give other directions which are intended to have the hearing run smoothly from 3 December 2018. (b) Should leave be granted for Mr Tisot to represent the second defendant?

Decision

Reasons for decision

Accordingly, for these reasons, the Court will grant leave under r 1.34 of the 2011 FCRs and dispense with the requirement under r 4.01(2) that the second defendant be represented by a legal practitioner. Conclusion For the reasons given above, those parts of the interlocutory application which relate to the vacation of the hearing and related matters will be dismissed. Some adjustments will be made to the timetable with a view to the scheduled hearing commencing on 3 December 2018. The second defendant will have leave to be represented by Mr Tisot.

Ratio Decidendi

Legal Principle Established

The plaintiffs neither opposed, nor consented to, either limb of the interlocutory application. Consideration and determination The interlocutory application dated 28 September 2018 raises two central issues. First, whether the time for the filing of evidence should be extended and the hearing which is proposed to commence on 3 December 2018 be vacated with a view to the hearing commencing sometime in March 2019. Secondly, should leave be granted for the second defendant to be represented by Mr Tisot. I will address each of those matters in turn. (a) Should the hearing be vacated and additional time be given for the filing of evidence? Mr Tisot has not persuaded me that the hearing scheduled for 3 December 2018 should be vacated and replaced with a timetable which would see the hearing commence sometime in March 2019. As noted above, the proceeding has been on foot for some time. Moreover, as long ago as December last year, the parties were then agreed that the hearing could commence on 11 May 2018. As noted above, the Court has previously dismissed an application by the first defendant to extend the time for the defendants to file and serve their evidence to 31 December 2018. On that day (20 July 2018), the matter was listed for hearing on 3 December 2018 and the time within which the defendants had to file their evidence was extended to 28 September 2018. The first defendant then left it to that day to file the current interlocutory application and the supporting affidavits. I do not doubt the magnitude of the documentation which has been served on the defendants, none of whom are legally represented (while noting that only the first and sixth defendants are active parties). The first and sixth defendants have had since mid-June to analyse that material, which is more than 4 months. It is apparent from Mr Tisot’s affidavit that he already had in his possession copies of some Company books which he has used to assist him in that analysis. As the sole director of the Company, it can be assumed that Mr Tisot has a good familiarity with the Company’s records, including relevant invoices. Mr Tisot says that certain discrepancies and inconsistencies have emerged and that there are errors in the last two creditors’ reports, but I do not regard those matters as providing a sufficient basis for vacating the hearing date. I have taken into account Mr Tisot’s evidence regarding his son’s health (which is unsupported by any independent medical evidence) and his responsibilities as the sole carer of his mother, but I do not consider that these matters outweigh the desirability of maintaining the current hearing date in order that the serious allegations made against the defendants be heard and determined so that there is finality. I have also taken into account the overarching purpose of civil litigation, as expressed in s 37M of the Federal Court of Australia Act 1976 (Cth). I will, however, make certain adjustments to the timetable which will require the defendants to file and serve any evidence upon which they intend to rely by no later than 16 November 2018, which is approximately four weeks from now. It is assumed that the defendants have proceeded to prepare for the hearing in circumstances where the outcome of their interlocutory application dated 28 September 2018 was unknown. I will provide a short period for the plaintiffs to file any evidence in reply and also make a direction which aims to have the parties seek to agree a statement of facts and issues. I will also make directions for the filing and serving of brief outlines of written submissions and give other directions which are intended to have the hearing run smoothly from 3 December 2018. (b) Should leave be granted for Mr Tisot to represent the second defendant?