Sommer v C Pty Ltd (No.6)

[2020] FCCA 2816

FEDERAL CIRCUIT COURT OF AUSTRALIA

SOMMER v C PTY LTD (No.6) [2020] FCCA 2816

Catchwords:
BANKRUPTCY – PRACTICE AND PROCEDURE – Application for order vacating hearing because respondent has filed an application for leave to appeal – order vacating hearing made.

Applicant: MS SOMMER

First Respondent: C PTY LTD

Second Respondent: MS M, IN HER CAPACITY AS A COSTS ASSESSOR

File Number: SYG 697 of 2020

Judgment of: Judge Manousaridis

Hearing date: 12 October 2020

Date of Last Submission: 12 October 2020

Delivered at: Sydney

Delivered on: 14 October 2020

Orders Pronounced: 13 October 2020

REPRESENTATION

Applicant in person, by video

Counsel for the First Respondent: Mr D Williams SC and Ms M Castle, by video

Solicitors for the First Respondent: ICL Lawyers

No appearance by, or on behalf of, the Second Respondent

ORDERS

1. Subject to the respondent pursuing with due diligence:

   (a)its application for extension of time to apply for leave to appeal from the orders made on 7 August 2020 and, if an extension of time is granted, its application for leave to appeal against those orders; and

   (b)its application for leave to appeal against the orders made on 18 September 2020,

   the hearing of the matter that has been set down on 14 and 15 October 2020 is vacated.

IT IS NOTED that publication of this judgment under the pseudonym Sommer & C Pty Ltd (No.6) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 697 of 2020

MS SOMMER

Applicant

And

C PTY LTD

First Respondent

MS M, IN HER CAPACITY AS A COSTS ASSESSOR

Second Respondent

REASONS FOR JUDGMENT

1. At 4.15 pm on 13 October 2020 I made an order vacating the hearing of this matter that had been set down for hearing on 14 and 15 October 2020. At the time I made the order I said I would publish my reasons on 14 October 2020. These are my reasons.

2. The starting point is the orders I made on 18 September 2020. I there set the matter down for hearing on 14 and 15 October 2020, made directions, and appointed 2 October 2020 for a directions hearing. At the directions hearing junior counsel for the first respondent (respondent) informed me the respondent intended to apply for an order that I recuse myself, the respondent intended to apply to seek leave to appeal against interlocutory orders I made on 7 August 2020 and 18 September 2020, and that the respondent intended to apply for an order that I vacate the hearing of this matter.

3. On 8 October 2020 the respondent filed an application in a case seeking an order that I recuse myself, an order that the hearing be vacated, and an order that the proceeding be stayed pending the determination of the appeal. The application in a case was listed for hearing at 2.15 pm on 12 October 2020.

4. At the hearing senior counsel made submissions in support of the respondent’s recusal application; and the applicant made brief submissions in response. At the conclusion of the hearing, with the consent of the parties, I heard submissions on whether I should vacate the hearing date on the assumption I had decided I would not recuse myself.

5. In applications to adjourn a hearing, a court usually considers why the adjournment is sought, whether the application for adjournment could have been made earlier, and, if so, why it was not made earlier; and the respective prejudices the party seeking and the party opposing the application for an adjournment will or may suffer on the alternative assumptions that the hearing will and will not be adjourned.

6. The respondent set out the grounds on which it relies for the hearing to be vacated in paragraphs 125-129 of a document titled “Outline of Argument on Behalf of the Applicant”. The respondent submits the appeal relates to the question of jurisdiction, being a matter the respondent relies in the defence it filed on 12 October 2020, that if the appeal is allowed the hearing will be otiose; and that if the orders this Court made pursuant to the judgment on jurisdiction the Court pronounced on 7 August 2020, the respondent may need to consider pleading a cross-claim on quantum meruit principles. The respondent also submits the matter “is not attended with the urgency which would require the hearing to proceed in in the face of an application for leave to appeal”.

7. The respondent also relied on an affidavit of Ms A which exhibits an affidavit by the lawyer for the respondent which has been filed in support of the respondent’s application for leave to appeal. The lawyer gives some evidence relevant to explaining the delay in applying for leave to appeal from the orders I made on 7 August 2020. It is not necessary to set out that evidence in these reasons.

8. The applicant opposed the application that the matter be vacated. She relies on what she submitted has been delays in the hearing of the matter occasioned by the respondent’s conduct. The applicant also referred to the respondent’s conduct in relation to a proceeding in which the applicant is a party in the Family Court of Australia (FCoA); and to the impact on her health of the continuing adjournments of the hearing.

9. It is not necessary to consider the explanation for the delay the respondent proposes to give to the Federal Court; and that is because whether an adequate explanation for delay has been given will not outweigh what I consider to be a determining factor in favour of vacating the hearing. As I observed at the hearing, given the respondent has applied that I recuse myself, and that it has filed an application for leave to appeal, a decision that I would not recuse myself coupled with an order dismissing the application to vacate the hearing, will likely result in the respondent applying to the Federal Court for urgent relief. That would necessarily disrupt the hearing if for no other reason that that it is likely that the applicant, being unrepresented, would need to appear before the Federal Court if an urgent application were made to that Court. Also relevant are the issues in relation to which the respondent seeks leave to appeal. If the respondent is successful in its appeal, it is likely there will be no need for any hearing. That will mean that the parties will be saved what would have become an unnecessary hearing.

10. I have taken into account the applicant’s submissions about her health, about which there is evidence. The applicant’s health, however, favours an order vacating a hearing. Continuing with a hearing which is likely to be disrupted by interlocutory applications to the appeal court will add to the issues with which the applicant would need to deal on the day of the hearing, and that may have an adverse impact on the applicant’s health. Further, if the appeal is successful, the applicant will be saved the difficulties of running a hearing.

11. I have also taken into account the applicant’s concerns about the proceeding in the FCoA. As I informed the applicant at the hearing, if the applicant believes the respondent may do anything that may affect the property or proceeds the applicant may receive in the FCoA proceeding, it would be open to the applicant to bring her concerns to the attention of the judge presiding over the FCoA proceeding.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date: 14 October 2020