Wakim v McDermott
[2012] FCA 1104
•8 October 2012
FEDERAL COURT OF AUSTRALIA
Wakim v McDermott [2012] FCA 1104
Citation: Wakim v McDermott [2012] FCA 1104 Parties: ELIAS GEORGE WAKIM v JOHN EMMET MCDERMOTT File number: NSD 971 of 2012 Judge: GRIFFITHS J Date of judgment: 8 October 2012 Date of hearing: 8 October 2012 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 15 Solicitor for the Applicant: Mr R Ardino of Morgan Ardino & Co Counsel for the Respondent: Mr A Spencer Solicitor for the Respondent: Ms S Nash of Sally Nash & Co Lawyers
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 971 of 2012
BETWEEN: ELIAS GEORGE WAKIM
ApplicantAND: JOHN EMMET MCDERMOTT
Respondent
JUDGE:
GRIFFITHS J
DATE OF ORDER:
8 OCTOBER 2012
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. The applicant’s application for an adjournment of the hearing today is dismissed.
2.The applicant’s application filed on 9 July 2012 to have the bankruptcy notice set aside is dismissed.
3.The applicant is to pay the respondent’s costs including the reserved costs in respect of the hearing on 2 August 2012.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 971 of 2012
BETWEEN: ELIAS GEORGE WAKIM
ApplicantAND: JOHN EMMET MCDERMOTT
Respondent
JUDGE:
GRIFFITHS J
DATE:
8 OCTOBER 2012
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The matter has come before me today for the hearing of an application which was filed on 9 July 2012 by the applicant, Mr Wakim, to set aside a bankruptcy notice. Mr Wakim’s application was supported by an affidavit sworn by him, said to be dated 6 July 2010. It is evident that that year is a typographical error and that the affidavit was sworn on 6 July 2012 and was filed on 9 July 2012.
The application was opposed by the respondent who on 20 July 2012 filed a notice stating the grounds of its opposition to the application.
The matter first came before me for directions on 2 August 2012. On that occasion, when Mr Wakim was represented by Counsel, I made the following orders:
1.The applicant is to file and serve any further evidence on which he intends to rely, including any supplementary affidavit to his affidavit filed 9 July 2012, by 23 August 2012.
2.The respondent is to file and serve any evidence on which it intends to rely by 7 September 2012.
3.Any evidence in reply is to be filed and served by 14 September 2012.
4.The applicant is to file and serve an outline of written submissions by 10 business days before the hearing together with a brief narrative chronology by 24 September 2012.
5.The respondent is to file and serve a written outline of its submissions by 1 October 2012.
6.The applicant is to file and serve any written outline of any submissions in reply by no later than 4 October 2012.
7.The matter is listed for hearing for no more than one day on 8 October 2012 at 10:15 am before Griffiths J.
8.The Registry is to be advised immediately if there is any slippage in this timetable.
9.Liberty to apply on the giving on 72 hours notice.
10.Costs of today are reserved.
As is evident from paragraph 4 of the above orders, the applicant was required to file and serve an outline of written submissions and narrative chronology by 24 September 2012. Any additional evidence he proposed to rely upon was required to be filed and served by 23 August 2012.
The respondent was also directed to file and serve a written outline of submissions. It duly did so by providing a detailed outline of submissions prepared by Mr Spencer, who appears today for the respondent.
The applicant was contacted by my associate on 3 October 2012 and asked to proceed to file and serve a written outline of submissions by close of business on 4 October. No such written outline was filed, nor was any additional affidavit filed on behalf of the applicant in support of his application to have the bankruptcy notice set aside, nor was any affidavit filed in support of his application for an adjournment.
When the matter was called for hearing this morning at 10.15 am, Mr Ardino announced his appearance on behalf of the applicant. Mr Ardino is the solicitor on the record for the applicant. Mr Ardino initially made an application to have the hearing today adjourned. He then subsequently indicated that he had difficulties in continuing to act as the applicant’s legal representative and he sought the Court’s leave to terminate his retainer with the applicant.
Certain matters were raised by Mr Ardino from the bar table going to the difficulties which he says he has been encountering in obtaining instructions from his client. He said that his client had recently terminated his Counsel’s retainer. It was common ground that the applicant had a history of dismissing his lawyers’ services shortly before hearings were scheduled to occur. Mr Ardino indicated from the bar table that he had had various discussions with his client and that he had indicated to his client that he would terminate his retainer. He said from the bar table that he was asked by his client to apply for the matter to be adjourned today.
There was also reference to the applicant being physically unwell. There was a reference from the bar table, again unsupported by any affidavit, as to the applicant suffering from certain injuries, including difficulties apparently with his back. Reference was also made from the bar table about the applicant receiving various professional treatment from both a psychiatrist and also, as I understood it, from a psychologist. There was no affidavit filed on behalf of the applicant deposing to any basis upon which the hearing today ought to be adjourned. There were difficulties, as I pointed out to Mr Ardino, with the matter proceeding today, particularly in circumstances created by Mr Ardino’s indication that he no longer wished to represent the applicant and had no instructions to do anything but formerly seek an adjournment.
Although some reference was made from the bar table about the possible desirability of the applicant having the benefit of a tutor, there was, again, no evidentiary material placed before the Court to put it in a position to be able to make any meaningful assessment of that matter.
The application for an adjournment was opposed by the respondent. I was also told by Mr Spencer, and accept, that a notice was sent to the applicant requiring him to be present today for cross-examination if his affidavit in support of the application to set aside the bankruptcy notice was to be read.
Mr Ardino indicated that there was nothing that he wished to say by way of elaboration by reference to any evidentiary material in support of the application for an adjournment. In circumstances where he indicated that he wished to terminate his retainer, he plainly was not in a position, as he readily accepted, to argue the substantive application in the event that the application for an adjournment was refused.
In the circumstances, I do not consider that the Court has before it in an appropriate evidentiary form, sufficient material to warrant the hearing being adjourned. Very clear directions were given by me on 2 August 2012, some two months ago, to enable the matter to be heard and determined today. I see no reason why the matter should be adjourned in circumstances where the application for an adjournment formally made by Mr Ardino is opposed by the respondent, who has turned up today with both Counsel and instructing solicitor ready to have the matter proceed as was contemplated by the orders that I made on 2 August 2012. No evidence has been adduced by the applicant in support of an adjournment. For those reasons I refuse the adjournment application.
That brings me to the application to have the bankruptcy notice set aside. In circumstances where Mr Ardino has indicated that he does not represent the applicant insofar as the substantive application is concerned and in light of the non-appearance by the applicant to advance his application, pursuant to rule 30.22 I dismiss the application filed on 9 July 2012 seeking inter alia to have the bankruptcy notice set aside.
The applicant is ordered to pay the respondent’s costs, including the reserved costs in respect of the hearing which was held on 2 August 2012.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths. Associate:
Dated: 11 October 2012
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