SUMNER-POTTS v D.C.T.
[2006] FMCA 826
•22 May, 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SUMNER-POTTS v D.C.T. | [2006] FMCA 826 |
| BANKRUPTCY – Annulment application – adjournment – no appearance. |
| In the Marriage of Buljubasic (1999) 25 Fam LR 371 McKean v Page (1999) 25 Fam LR 15 |
| Applicant: | MICHAEL PHILIP SUMNER-POTTS |
| Respondent: | DEPUTY COMMISSIONER OF TAXATION |
| File Number: | BRG796 of 2005 |
| Judgment of: | Jarrett FM |
| Hearing date: | 22 May, 2006 |
| Date of Last Submission: | 22 May, 2006 |
| Delivered at: | Brisbane |
| Delivered on: | 22 May, 2006 |
REPRESENTATION
| No appearance by or on the behalf of the Applicant |
| Counsel for the Respondent: | Mr McQuade |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
That pursuant to Rule 10.01(2)(b) of the Federal Magistrates Court Rules2001 the application filed 13 April 2006 be dismissed.
That the applicant pay the respondent’s costs of and incidental to these proceedings to be taxed in accordance with the Federal Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG796 of 2005
| MICHAEL PHILIP SUMNER-POTTS |
Applicant
And
| DEPUTY COMMISSIONER OF TAXATION |
Respondent
REASONS FOR JUDGMENT
(Ex tempore)
This is an application that was filed by the bankrupt on 13 April, 2006. The application is one seeking a stay of the sequestration order that was made on 24 February, 2006 and an order that the sequestration order be annulled. The matter was fixed for hearing today.
The bankrupt has at all times, it seems, been legally represented by a firm of solicitors in Cairns. By a letter of 19 May, 2006 to the Registrar of this Court, the lawyers for the bankrupt wrote pointing out that they had received a 108 page facsimile comprising an affidavit sworn on behalf of the respondent and pointing out that they required the deponent of that affidavit for cross-examination. They also pointed out that the applicant objected to being served with the affidavit by facsimile the day before the hearing of the matter. The letter goes on:
Under the circumstances we request that an adjournment be provided in order that we can get the affidavit to our counsel, seek instructions from our client and respond accordingly. It is proposed that once the affidavit has been perused and analysed that an appropriate response will be formulated and a further affidavit drafted.
In the same letter it is pointed out that the applicant himself has been required for cross-examination, but that because of commitments as a barrister he will not be available for cross-examination. The letter goes on to wonder about why he would be required for cross-examination in any event.
The applicant has not appeared this morning, either in person or by legal representative. The respondent has appeared and submissions have been made by counsel for the respondent which effectively responds to the application for the adjournment.
My view is that I should not deal with any application for an adjournment because the applicant has not appeared to seek the adjournment. In my view it is entirely inappropriate to correspond with this Court, or any Court for that matter, about an adjournment and making no arrangements to appear before the Court to seek the adjournment.
I propose to dismiss the application filed on 13 April, 2006 pursuant to
r.10.01(2) of the Federal Magistrates Courts Rules 2001.
That it is inappropriate to correspond with a Court in the way to which I have referred is clear enough from the decision of the Full Court of the Family Court of Australia In the Marriage ofBuljubasic (1999) 25 Fam LR 371, see also McKean v Page and Others (1999) 25 Fam LR 15.
If my approach to dismissing the proceedings under r.10.01(2) is incorrect it seems to me that in any event the application for the adjournment should be refused. It should be refused because the affidavit which seems to be the source of trouble for the applicant is of no particular moment.
On 19 May, 2006 the respondent filed an affidavit of Michael Large.
I assume, but it is not entirely clear, but I assume that that is the affidavit in respect of which the applicant now complains. That affidavit, however, does nothing remarkable. It sets out in a comprehensible way the chronology of this particular matter. It sets out in a way helpful to the Court the history of the matter, including the matters leading to the making of the sequestration order and the matters that have occurred since then.
All of the matters deposed to in the affidavit, perhaps save for the matter deposed to in paragraph 23, appears to me to be uncontroversial. The affidavit exhibits a large number of documents, but those documents, as Mr McQuade of counsel has pointed out for the respondent, comprise documents that the applicant would already have: for example a copy of his statement of affairs and documents executed by his own lawyers. There is nothing, it seems to me, in that affidavit that would be likely to take the applicant by surprise or indeed require any instructions or an answer.
The letter of 19 May, 2006 to which I have earlier referred addressed to the Registrar of this Court indicates that the applicant has counsel and it seems to me that any competent counsel would quickly take the view that the affidavit of Mr Large presents no particular difficulty to the prosecution of the application for annulment today.
If I was of the mind to refuse the application for the adjournment, as I would be if I had determined it, it seems to me that the application for the annulment would in any event fail. The material relied upon by the applicant does not establish solvency at the date the sequestration order was made. Apart from anything else, it seems to me that for that reason the annulment would in any event be refused. But, as I say, the application will be dismissed for the applicant's failure to appear.
ORDERS DELIVERED
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Jarrett FM
Deputy Associate: S. Haysom
Date: 8 June 2006
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