Winn v Blueprint Instant Printing Pty Ltd
[2008] FMCA 1430
•17 October 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WINN v BLUEPRINT INSTANT PRINTING PTY LTD | [2008] FMCA 1430 |
| BANKRUPTCY – Application to set aside orders made in applicant’s absence – application for extension of time to seek review of Registrar’s orders – inadequate explanation for delay – poor prospects of success in underlying application to set aside bankruptcy notice. |
| Bankruptcy Act 1966, s.41(7) Service and Execution of Process Act 1992, s.8(1) Supreme Court (General Civil Procedure) Rules 2005 (Vic), r.63.56 |
| Clyne v Deputy Commissioner of Taxation (NSW) (No 3) (1983) 48 ALR 545 Emerson v Wreckair Pty Ltd (1992) 33 FCR 581 Lazar v Seccombe [2005] FCA 1652 R v Hore; Ex parte Brisbane City Council [1969] Qd R 75 Re Briggs; Ex parte Briggs v Deputy Commissioner of Taxation (WA) (1986) 12 FCR 310 Sunderland v G & J Drivas Pty Ltd [2000] FCA 1029 |
| G E Dal Pont, Law of Costs (Lexis Nexis Butterworths, 2003) Quick, R and Garnsworthy, D, Quick on Costs: Volume 2 (Lawbook Company, Australia, 1996) |
| Applicant: | JULENE WINN |
| Respondent: | BLUEPRINT INSTANT PRINTING PTY LTD |
| File Number: | MLG 1531 of 2007 |
| Judgment of: | Riley FM |
| Hearing dates: | 10 September 2008 & 13 October 2008 |
| Date of Last Submission: | 13 October 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 17 October 2008 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Counsel for the Respondent: | J.E. Treleaven |
| Solicitors for the Respondent: | Herbert Geer Rundle |
ORDERS
The application under r.16.05(2)(a) of the Federal Magistrates Court Rules 2001 to set aside the orders made on 11 February 2008 is dismissed.
The application for an extension of time in which to review the orders made by the Registrar on 11 February 2008 is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1531 of 2007
| JULENE WINN |
Applicant
And
| BLUEPRINT INSTANT PRINTING PTY LTD |
Respondent
REASONS FOR JUDGMENT
Background
This is an application filed on 11 August 2008 seeking firstly that orders made by the Registrar on 11 February 2008 be set aside pursuant to r.16.05(2)(a) of the Federal Magistrates Court Rules 2001 and secondly that the applicant be given an extension of time in which to seek review of those orders.
Rule 16.05(2)(a) permits an order made in the absence of a party to be set aside. The applicant did not appear on 11 February 2008. The Registrar on that date dismissed the applicant’s application filed on
9 November 2007. That application sought orders that bankruptcy notice VN 1372 of 2007 be set aside.
On 12 November 2007, a Registrar ordered that the time for compliance with the bankruptcy notice be extended to
6 December 2007and ordered the applicant to serve the application forthwith. On 6 December 2007, a Registrar ordered that the time for compliance with the bankruptcy notice be extended to
11 February 2008, adjourned the further hearing to 11 February 2008 and made various other procedural orders.
The applicant was represented by counsel on 6 December 2007. Counsel advised the court that he had been retained by White Cleland, solicitors. The orders of 6 December 2007 required the solicitors for the applicant to file a notice of appearance forthwith. They did not do so. However, on 4 February 2008, White Cleland filed a notice that they had ceased to act in this matter.
On 8 February 2008, the applicant, who now lives in Queensland and who is a barrister, faxed to the court an affidavit in which she sought an adjournment of the hearing listed for 11 February 2008 until 3 March 2008 for medical reasons. The applicant exhibited a number of medical certificates. Some concerned November and December 2007. However, a doctor from Chermside Medical Centre signed a certificate on 6 February 2008 saying that the applicant was suffering from hypertension, and would be unfit for normal work from
6 to 17 February 2008, and unable to attend court on 11 February 2008.
The applicant did not appear in person, or by a legal representative, on 11 February 2008. The respondent opposed the adjournment. The Registrar’s bench sheet notes that the Registrar read the applicant’s faxes before the hearing on 11 February 2008. An affidavit sworn by Fiona Jenkins on 22 August 2008 said that she was informed by the barrister who attended the hearing on behalf of the respondent on
11 February 2008 that the Registrar noted that the medical certificates seemed to only say that the applicant was then suffering from hypertension but, in any event, there was no explanation of why the applicant had not engaged legal representation for 11 February 2008. The Registrar refused the adjournment and dismissed the application filed on 9 November 2007 on the grounds of the applicant’s non-appearance.
In considering an application to set aside an order that was made in the absence of a party, the court must consider:
a)the reason for the non-appearance;
b)the extent of the delay in bringing the application to set aside;
c)the reason for the delay;
d)the prejudice to the respondent in setting aside the orders; and
e)the applicant’s prospects of success in the substantive application.
The applicant said that she did not appear on 11 February 2008 because she was unwell. She said she had chronic fatigue syndrome, and a bowel disorder, as well as the hypertension mentioned in her application for the adjournment. I accept, for present purposes, that the applicant did have the health issues I have mentioned.
However, the applicant has not adequately explained why she was not represented by a legal practitioner. The applicant said at paragraph [8] of her affidavit sworn on 6 August 2008 that her solicitor was “unable to manage” the application. If that is so, competent counsel should have been engaged.
The applicant said at paragraph [28] of her affidavit sworn on
6 August 2008 that she was unable to instruct her solicitor in February 2008. I do not accept that claim. The court file shows that the applicant, on 8 February 2008, was able to:
a)write a three page letter to the court requesting an adjournment and enclosing two medical certificates, a copy of the notice of ceasing to act, a copy of a letter to the solicitors for the respondent seeking its consent to an adjournment and a copy of a proposed consent order; and
b)prepare a two page affidavit in support with more than 20 pages of exhibits.
At the very least, the fact that the applicant was able to prepare these documents suggests that the applicant could have instructed a solicitor to appear for her to seek an adjournment or engage counsel to appear for her on 11 February 2008 and run the application. Accordingly, I do not accept that the applicant had an adequate reason for her non-appearance on 11 February 2008.
The delay in making the present application was 6 months. Rule 16.05(2)(a) of the Federal Magistrates Court Rules 2001 does not contain any time limit for an application. The applicant’s explanation for the delay is her ill-health. As well as the matters mentioned previously, the applicant said she recently found a breast lump which is now under investigation. Additionally, she said her mother was unwell with a life-threatening illness from April 2008, and needed the applicant to care for her.
In any event, the applicant filed an application in the Supreme Court of Victoria on 21 February 2008. That application was supported by a lengthy affidavit sworn by the applicant on 21 February 2008. The affidavit states that it was prepared by the applicant personally. It is 13 pages long and has about 30 pages of exhibits. The affidavit is well expressed, detailed and cogent. The applicant was also able to appear in the Supreme Court of Victoria on 29 February 2008.
The applicant has not explained how she could have filed the application in the Supreme Court of Victoria on 21 February 2008 and appeared in that court on 29 February 2008, but could not have filed the present application at about the same time. In my view, the delay is inordinate and not adequately explained.
It was not suggested that the respondent would suffer any prejudice from the setting aside of the order made on 11 February 2008 other than the usual costs, delay and inconvenience.
As to the applicant’s prospects of success on the substantive application, the question is whether the applicant has reasonable prospects of being able to set aside bankruptcy notice number VN 1372 of 2007. The applicant argued that the bankruptcy notice was liable to be set aside for a number of reasons.
The applicant said that the respondent had not properly complied with the orders made on 21 September 2007 permitting substituted service of the bankruptcy notice. There is authority that a bankruptcy notice may be set aside on the grounds that service of the notice was defective. In Re Briggs; Ex parte Briggs v Deputy Commissioner of Taxation (WA) (1986) 12 FCR 310 Toohey J (in the Federal Court) said at 312:
It seems to me that, however formulated, the grounds upon which a bankruptcy notice may be set aside must relate to the form or content of the notice itself, service of the notice or the existence of the debt upon which the judgment and in turn the notice is founded. …
… In my view a court faced with an application to set aside a bankruptcy notice is constrained to look only at the regularity of the notice itself (including service) and otherwise at the circumstances surrounding the existence of the judgment debt and any demand which the debtor may have against the creditor for a comparable amount.
In Briggs, the applicant did not rely on defective service, so the court’s observations about service are strictly obiter. On the other hand, the respondent relied on Sunderland v G & J Drivas Pty Ltd [2000] FCA 1029, where Hely J said:
3.It seems to me that the issue of whether or not the bankruptcy notice has been properly served is not an issue which arises in relation to an application to set aside the bankruptcy notice. It is an issue which could arise on the hearing of a petition if Ms Sunderland wished to oppose the petition upon the basis that she was not served with a bankruptcy notice, and thus had not committed an act of bankruptcy. I therefore propose not to determine the factual issue which arises in relation to service.
More recently, in Lazar v Seccombe [2005] FCA 1652, Jacobson J said:
20.It seems to me that here, where the only real issue on the present application is whether or not the bankruptcy notice was properly served, I ought not to exercise my discretion in favour of the debtor unless I am plainly satisfied on the evidence that the bankruptcy notice has not been served in accordance with the regulations.
…
24.… I am satisfied on the evidence before me that I ought not to exercise my discretion to set aside the bankruptcy notice. I think the preferable course is the one adopted by Hely J in Sunderland. I have come to this view because I am satisfied that the bankruptcy notice was left at a place which the applicant gave as his address in sworn evidence. Moreover, he received the bankruptcy notice and he gave it to a solicitor.
In the present case, the applicant has acknowledged receipt on or about 5 October 2007 of the bankruptcy notice and the order of 21 September 2007. Moreover, the respondent has filed three affidavits which indicate that the bankruptcy notice and the order of 21 September 2007 were served in accordance with that order. While the applicant challenges service, the evidence is not so clear that it could be said, in terms of Lazar, that it is plain that the bankruptcy notice was not properly served. Additionally, rule 6.16 of the Federal Magistrates Court Rules 2001 provides that:
Failure to comply with a condition of an order for substituted service does not prevent the Court from finding that the document is taken to have been served on a date specified in the order.
In the context of an application to set aside orders for non-appearance, in the context of an application for an extension of time to review a Registrar’s orders, and in view of Sunderland and Lazar, it would not be appropriate in this proceeding to embark on a full enquiry into whether there was proper service. I do not consider that the question of service gives rise to a reasonable prospect that the bankruptcy notice would be set aside.
The applicant raised a further issue in relation to service towards the end of her reply. She said that the respondent had not complied with the requirements of the Service and Execution of Process Act 1992. However, the applicant did not nominate the section with which she alleged the respondent failed to comply. Subsection 8(1) of that Act provides that:
This Act does not affect a decision of a court or tribunal to allow substituted service of a process.
The Registrar in this case allowed substituted service. Accordingly, I do not consider that there was any relevant failure to comply with the Service and Execution of Process Act 1992.
The applicant also argued that the manner in which the bankruptcy notice was served meant that it was misleading, because she did not know what she had to do, and when she had to comply. However, the applicant acknowledged service of the bankruptcy notice and order for substituted service. They were in a standard form and, in my view, not misleading. I do not consider that the applicant has a reasonable prospect of setting aside the bankruptcy notice on this ground.
The applicant said that most of the costs ordered against her in the orders the subject of the bankruptcy notice were not the costs of the respondent, but the costs of another party, Mr Goodwin, in related proceedings. The applicant and Blueprint Instant Printing Pty Ltd (“Blueprint”) were the parties in Supreme Court of Victoria proceeding numbered 4215 of 2002. The applicant and Mr Goodwin were the parties in Supreme Court of Victoria proceedings numbered 4216 and 4217 of 2002. The three proceedings were heard together. Blueprint and Mr Goodwin were represented by the same solicitors and counsel. Byrne J ordered the applicant to pay Blueprint’s costs. Those costs were taxed by Master Bruce. Both Byrne J’s order and Master Bruce’s order were attached to the bankruptcy notice.
The applicant said that the Taxing Master failed to appreciate that many of the costs claimed by Blueprint were actually the costs of Mr Goodwin. The applicant said that the costs should have been apportioned and the Taxing Master failed to do so at all or to the appropriate extent. The applicant said that she should only have been ordered to pay one third of the costs claimed.
Blueprint’s costs were taxed at $16,639.20. One third of that figure would have been $5,546.40. To the extent that the applicant raised the argument about the amount of the taxation as a reason for going behind the judgment, the Full Federal Court in Emerson v Wreckair Pty Ltd (1992) 33 FCR 581 at [28] held that:
It would, therefore, seem appropriate that upon an application to a court exercising jurisdiction in bankruptcy to set aside a bankruptcy notice, the court should not go behind a judgment where the grounds upon which the judgment is challenged are such that, if accepted, they would only support a finding that the amount of the debt be reduced and would not support a finding that there was in truth no debt at all.
The applicant did not dispute that she was liable to pay Blueprint’s costs. As well as saying that the amount should have been reduced by one third, she also said that some items should not have been claimed at all. However, I see no basis on which it could reasonably be concluded that the applicant’s costs, properly taxed, might be reduced to an amount that meant the applicant had no debt to Blueprint at all, or even a debt of less than the statutory minimum for a bankruptcy notice of $2,000. Accordingly, I do not consider that the applicant has reasonable prospects of being able to go behind the judgment and then having the bankruptcy notice set aside.
The applicant also argued that the order of the Taxing Master fixing the amount of the costs was not a final order because she has an outstanding application for review against the taxation. The application is under rule 63.56 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic). The application was filed on 23 November 2005 but was struck out on 31 January 2006 on the grounds that the applicant failed to attend a callover. The applicant appealed against the strike out order on 11 April 2006. The appeal was stayed by Byrne J on 3 August 2006 pending the payment by the applicant of the respondent’s costs of $1,750. On 20 July 2007, the applicant applied for the orders made by Byrne J 3 August 2006 to be set aside. However, Kaye J refused that application on 1 October 2007. The applicant subsequently paid the costs of $1,750. The appeal filed on 11 April 2006 is now listed for hearing on 19 November 2008 (together with a related matter).
However, the High Court said in Clyne v Deputy Commissioner of Taxation (1983) 48 ALR 545 at 548 that:
The fact that a judgment is subject to appeal or that it may later be set aside or become inoperative does not mean that it is not final.
The position as the matter stands is that the application for review has been struck out. The applicant said it had only been struck out from the callover list so it is still on foot. I do not accept that argument. I consider that the application for review was struck out and, unless and until it is reinstated, it has ceased to be on foot. The applicant also said that until the review is dealt with on the merits, there is no final order, because there is a right of review. The applicant produced no authority in support of her argument. I do not accept it. I consider that the decision on taxation by Master Bruce was to all intents and purposes a final order, albeit one that might be set aside. I see nothing in the present context to take the review, especially as it has been struck out, outside the scope of the passage from Clyne set out above. I do not consider that the present status of the review gives rise to a reasonable prospect of the bankruptcy notice being set aside.
The applicant did not argue that this matter should await the determination of the matter in the Supreme Court of Victoria on
19 November 2008. In any event, I do not consider that it should. There has been a long history of delays and adjournments in the applicant’s proceeding with Blueprint. I have no confidence that the matter in the Supreme Court of Victoria will actually be heard and determined on or about 19 November 2008.
The applicant argued that the bankruptcy notice was for the wrong amount, as it was based on an order that was wrong, for the reason that the taxation included amounts that were Mr Goodwin’s costs rather than Blueprint’s. However, as the matter stands, the bankruptcy notice is for the correct amount as it is based on an order of the Taxing Master that still subsists. Similarly, the applicant argued that the interest claimed in the bankruptcy notice was wrong because it was based on a taxed amount that erroneously included amounts in Mr Goodwin’s proceedings. Again, as the orders of the Taxing Master still stand, the interest calculation is not erroneous, at least for the reason alleged by the applicant. I do not consider that these arguments give rise to a reasonable prospect that the bankruptcy notice would be set aside.
The applicant also argued that she was not given the opportunity to present her case before the Taxing Master that the bill of costs that was presented to him included the costs of the two matters concerning Mr Goodwin. However, the applicant chose to leave the taxation after her application for an adjournment was refused. She had an opportunity to present her case to the Taxing Master but chose not to exercise it. I do not consider that this matter gives rise to a reasonable prospect of the bankruptcy notice being set aside.
Moreover, I do not consider that the applicant’s application for review and the related appeal are bona fide. If the applicant thought she had a good point to make, I consider that she would have attended the taxation and put her case. The applicant said that she left for reasons of her health. However, she has not explained why she did not have legal representation on that occasion.
As to the substance of the issue regarding the taxation, in G E Dal Pont, Law of Costs (Lexis Nexis Butterworths, 2003) at [11.3], it is stated that:
Where in separate actions two or more plaintiffs sue the one defendant, or the one plaintiff sues multiple defendants, the court may leave it to the taxing officer to apportion such costs between the various actions. [1]
[1] See Oppenshaw v Whiteheard (1854) 9 Ex 383; 156 ER 163; Re Metropolitan Coal Consumers’ Association (1890) 45 Ch D 606 at 611 per Kekewich J; Carter v Newcastle Wallsend Coal Co (1909) 9 SR (NSW) 474 at 479 per Simpson ACJ (FC); R v Hore [1969] Qd R 75 at 89 per Hoare J (FC); Meade v Queensland Ambulance Service (SC(Qld), White J, 24 April 1996, unreported), at 5-6; Pester v Hydro-Electric Corporation (1997) 7 Tas R 233 at 264 per Zeeman J (FC). Cf Boguslawski v Gdynia Ameryka Linie(No 2) [1951] 2 KB 328 at 334 per Denning LJ; Hursey v Williams (SC(Tas), Burbury CJ, 8 July 1960, unreported), at 3. See further Oliver, pp 67-8; Quick, [4.3380].
In Quick on Costs: Volume 2 (Lawbook Company, 1996) at [4.3380], it is stated:
Where two plaintiffs represented by the same solicitor bring two separate actions against the same defendant, and the actions are not consolidated nor one treated as a test case decisive of the other, each plaintiff is prima facie entitled, if successful, to have her or his own action treated as distinct from the other, except as to work which was required to be done only once for the two cases, the costs of such work being divided between the two.
…
There will, however, be circumstances where the way of dealing with separate actions or appeals closely approximates to consolidation although there is no order for consolidation. The idea of close approximation to consolidation was described in Boguslawski [1951] 2 KB 328 at 333 as a difficult one and there has not been a uniform practice of apportionment in Australia. The need to ensure economy in the administration of justice does, however, require that where proceedings are heard together, they deal with substantially the same issues and parties are represented by the same solicitor or the same solicitor and counsel that consideration be given to apportionment even if there is no formal order for consolidation. In R v Hore; Ex Parte Brisbane City Council [1969] Qd R 75 fourteen appeals were heard together by consent. There was no order for consolidation. All appellants were represented by the same solicitors and counsel. The Full Court indorsed apportionment, noting that had the case been one where several defendants had been represented by the same solicitor there would in effect have been apportionment had one succeeded, the plaintiff being obliged to pay only the costs of the proceedings relating to the successful defendant and a proportionate part of the costs of the proceedings taken jointly for all defendants: see Ellingsen v Det Skandinaviske Compani [1919] 2 KB 567 and above, [4.3260]. Hoare J, with whom Hanger and Stable JJ agreed, said (R v Hore; Ex parte Brisbane City Council [1969] Qd R 75 at 91):
Where there are a number of appeals involving precisely the same points, if there has been an early agreement to have them heard together, it would be quite unrealistic to allow a full fee on brief on each appeal and comparable solicitor’s costs. Depending on the particular circumstances, in such a case both in respect of the fee on brief and refreshers, I should think that a normal full fee should not be allowed on each separate appeal. On the other hand, I should think that usually it would be equally incorrect to allow only a total fee of an amount appropriate to one appeal only. Generally speaking (and again depending on circumstances) it would appear appropriate that some moderate increase be made in the proper fee for one appeal and an apportionment of the total among all appeals would, I think, be quite justified. It seems to me that a similar approach would be the correct one on relevant items of solicitor’s costs.
See also Meade v Queensland Ambulance Service (unreported, Qld Sup Ct, White J, 24 April 1996, No 1414 of 1995); Leslie v Marsland (unreported, Tas Sup Ct FC, 24 October 1997, No 119 of 1997).
The Full Court of the Supreme Court of Tasmania in Leslie v Marsland (unreported, SC Tas, Underwood, Wright and Zeeman JJ, 24 October 1997, App No 4/1997) affirmed the trial judge’s decision to award costs to the second respondent against each of the three plaintiffs separately. Zeeman J, giving the leading judgment, stated that Oppenshaw is the “authority for the proposition that that where costs have been incurred in the common defence of two or more actions it is appropriate to leave the question of apportionment to the taxing officer and for the taxing officer to divide such costs between the various actions” (at p 2).
Accordingly, it seems that the appropriate approach in the present case was for the Taxing Master to allow in full the costs that related only to Blueprint and to apportion those costs that related jointly to Blueprint and Mr Goodwin. As Blueprint was involved in one proceeding and Mr Goodwin was involved in two proceedings, it may be thought that the starting point for the costs awarded to Blueprint would have been all of those costs that were incurred solely in Blueprint’s matter and one third of the cost for those items that were undertaken for all three proceedings.
However, as indicated in R v Hore; Ex parte Brisbane City Council, to reflect the fact that more than one proceeding was being dealt with, it might have been appropriate to moderately increase the total amount for an item incurred in all three matters, and then divide that increased amount by three. Ultimately, however, the authorities show that the apportionment of costs in cases such as the present is a matter within the discretion of the Taxing Master.
The respondent has filed an affidavit sworn on 22 September 2008 by Antoinette Josephine Austin. Ms Austin was the cost consultant who appeared at the taxation before Master Bruce. Ms Austin said that:
a)the matter was heard before Master Bruce on 9 November 2005;
b)the applicant applied for an adjournment of the taxation;
c)the applicant alleged that court documents had been tampered with to make it appear that court documents in proceeding 4216 and 4217 of 2002 were actually in proceeding 4215 of 2002;
d)the Master refused the adjournment but said, in view of the applicant’s allegations about tampering, he would review the bill on an item by item basis;
e)the applicant then departed;
f)the Master proceeded to tax the bill in the applicant’s absence; and
g)the Master allowed some items in full and substantially reduced some others.
The applicant filed an affidavit sworn by her on 30 September 2008 that responded to Ms Austin’s affidavit. The applicant said that the bulk of the costs taxed arose in proceeding 4216 and 4217 of 2002, rather than in Blueprint’s matter which was 4215 of 2002. The applicant exhibited extensive documents, particularly exhibits JW-12 and JW-13, which she said made good her point. I have looked closely at those documents, although it is obviously not for me to undertake an exhaustive review of the taxation in the context of these proceedings.
As mentioned above, the taxation of costs in circumstances such as the present involves a good deal of discretion. It does not seem, on the material before me, that the Taxing Master’s discretion miscarried. I am not persuaded that any aspect of the manner in which the Taxing Master taxed the costs the subject of the bankruptcy notice gives rise to a reasonable prospect of the bankruptcy notice being set aside.
The applicant swore an affidavit on 9 October 2008 in which she said that Mr Goodwin had admitted in a separate proceeding that he had not paid his solicitors for the proceedings in question “[b]ecause at one stage the decision was made to include my costs with Blueprint’s.” Mr Goodwin went on to explain that Blueprint had paid his legal costs. I do not consider that Mr Goodwin’s statement means that his costs were at any stage intended to be included, or were in fact included, in Blueprint’s taxed bill of costs. The costs as between Blueprint and Mr Goodwin and their solicitors are a separate issue from the costs between Blueprint and the applicant.
The applicant also submitted in very clear terms that Blueprint and its legal advisers had conducted the taxation in a dishonest manner. I have seen nothing in the material to support this very serious allegation.
The applicant said that she has a set off or counterclaim against Blueprint, based on an enforcement proceeding she filed on
21 July 2004. However, Mr Henrik Lassen said in an affidavit sworn on 4 December 2007 that the enforcement proceeding was dismissed by Bongiorno J on 27 March 2006. The applicant has not challenged that claim. I do not consider that there is a reasonable prospect of setting aside the bankruptcy notice on this ground.
The applicant said that she has a set off against Mr Goodwin. That is irrelevant to the present proceedings.
The applicant said that the orders on which the bankruptcy notice were based included taxation of costs in the Court of Appeal and those costs are not mentioned in the bankruptcy notice. The documents show that the Taxing Master dealt with the costs in the Court of Appeal on the same day, but dealt with them separately. I do not consider that there is a reasonable prospect of the bankruptcy notice being set aside on this ground.
The applicant said that the costs as taxed were incurred in the Supreme Court of Victoria proceedings numbered 4215 of 2002, 4216 of 2002 and 4217 of 2002, but only the order in proceeding 4215 of 2002 was attached to the bankruptcy notice. I do not accept this argument. The bankruptcy notice relies on the order in proceeding 4215 of 2002 and that order was attached to the bankruptcy notice. No other order should have been attached. There is no reasonable basis to conclude that the costs order in proceeding number 4215 of 2002 included costs in the other matters. I do not consider that there is a reasonable prospect of the bankruptcy notice being set aside on this ground.
The applicant said that her solicitor made errors in conducting proceeding number 4215 of 2002. That is a matter between the applicant and her former solicitors, or their insurers. I am not persuaded that this matter gives rise to a reasonable prospect of the bankruptcy notice being set aside.
All in all, I consider that the applicant has poor prospects of success in her application to have the bankruptcy notice set aside. Moreover, she has inadequate reasons for not appearing, at least by legal representatives, on 11 February 2008. The applicant has an inadequate explanation for the six month delay in bringing this application.
The applicant also argued that Registrar Luxton had no jurisdiction to dismiss her application for non-appearance as she had an outstanding counterclaim against Blueprint. The applicant relied on s.41(7) of the Bankruptcy Act 1966 which provides that:
Where, before the expiration of the time fixed for compliance with the requirements of a bankruptcy notice, the debtor has applied to the Court for an order setting aside the bankruptcy notice on the ground that the debtor has such a counter‑claim, set‑off or cross demand as is referred to in paragraph 40(1)(g), and the Court has not, before the expiration of that time, determined whether it is satisfied that the debtor has such a counter‑claim, set‑off or cross demand, that time shall be deemed to have been extended, immediately before its expiration, until and including the day on which the Court determines whether it is so satisfied.
In fact, the application filed on 9 November 2007 did not include an application seeking to set aside the bankruptcy notice on the grounds of a counterclaim. It only referred to the service issue. The affidavit in support did refer to a counterclaim. However, as stated above, that counterclaim was dismissed by Bongiorno J on 26 March 2006. The applicant has not challenged that claim. In any event, I consider that there is no merit in this argument. The Registrar had power to dismiss the application for non-appearance.
For these reasons, I consider that it is appropriate to dismiss the application under r.16.05(2)(a) of the Federal Magistrates Court Rules 2001 to set aside the orders made on 11 February 2008.
The applicant has also sought an extension of time for the filing of the application for review. Rule 20.01 of the Federal Magistrates Court Rules 2001 specifies a seven day time limit for the filing of applications for review, although that time limit may be extended.
The matters to be considered in granting an extension of time are:
a)the extent of the delay;
b)the explanation for the delay;
c)the prejudice to the respondent; and
d)the prospects of success of the underlying application.
The applicant’s grounds for seeking an extension of time to review the Registrar’s orders were essentially the same as her grounds for seeking that those orders be set aside under r.16.05(2)(a). For the reasons given in relation to that application, I do not consider the applicant has advanced an adequate basis for the court to exercise its discretion to extend the time in which to seek review of the Registrar’s decision of 11 February 2008. Accordingly, that application will also be dismissed.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Riley FM
Associate: Catherine Wilson
Date: 17 October 2008
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