WINN v Leigh as Former Trustee of the Estate of WINN

[2019] FCCA 2469

FEDERAL CIRCUIT COURT OF AUSTRALIA

WINN v LEIGH AS FORMER TRUSTEE OF THE ESTATE OF WINN [2019] FCCA 2469

Catchwords:
BANKRUPTCY – Adjournment of hearing due to illness – consequential orders for production of discovered documents – matter adjourned.

Legislation:

Federal Circuit Court Rules 2001 (Cth), cl.14.04

Applicant: JULENE WINN

Respondent: DAVID JOHN LEIGH AS FORMER TRUSTEE OF THE ESTATE OF JULENE WINN

Intervenor THE OFFICIAL TRUSTEE IN BANKRUPTCY

File Number: BRG 1072 of 2018

Judgment of: Judge Egan

Hearing date: 26 August 2019

Date of Last Submission: 26 August 2019

Delivered at: Brisbane

Delivered on: 26 August 2019

REPRESENTATION

Applicant: No-Appearance

Solicitors for the Respondent: Mr W. T. Fitzgerald of Rose Litigation

Solicitors for the Intervenor: : Ms. A. Symenovych of McCullough Robertson

ORDERS

IT IS ORDERED THAT:

1. The Application be adjourned to 24 and 25 February 2020 at 10:00am for hearing in the Federal Circuit Court of Australia sitting at Brisbane.

2. The Applicant produce copies of the documents numbered 1 to 73 inclusive as listed in her affidavit of documents filed in the Federal Circuit Court Registry on 14 May 2019 by 4:00pm on 6 September 2019 pursuant to the provisions of Rule 14.04 of the Federal Circuit Court Rules (Cth) 2001.

3. The Intervenor and the Respondent have leave to inspect and copy any of the documents so produced pursuant to Order 2 hereof by 20 September 2019.

4. The Applicant file and serve any Reply by no later than 4:00pm on 13 September 2019.

5. The Applicant file and serve upon the Respondent and the Intervenor any affidavits she intends to rely upon at trial by no later than 4:00pm on 14 October 2019.

6. The Respondent file and serve upon the Applicant and the Intervenor any affidavits he intends to rely upon at trial by no later than 4:00pm on 21 October 2019.

7. The Intervenor file and serve upon the Applicant and the Respondent any affidavits the Intervenor intends to rely upon at trial by no later than 4:00pm on 28 October 2019.

8. Without the leave of the Court first obtained not less than seven (7) days before the first date listed for trial, no party may adduce evidence at trial from any witness from whom that party has not filed and served an affidavit pursuant to orders 5 to 7 hereof inclusive.

9. The parties shall file and serve on each other an outline of argument by no later than seven (7) days before the first date listed for hearing, setting out:

   a)all issues of fact and law that are raised by the Application and the response thereto;

   b)the findings of fact and conclusions of law contended for by the parties;

   c)all relevant authorities (including references to particular passages of those authorities) relied upon; and

   d)listing all the documents that the each party intends to rely upon at the trial of this proceeding.

10. The Applicant shall file and serve upon the Respondent and the Intervenor any further document setting out any agreed findings of fact or conclusions of law that the Court will be invited to make, having regard to the Applicant’s outline, the Respondent’s outline and the Intervenor’s outline, by no later than 4:00pm seven (7) days prior to the first date listed for hearing.

11. The Intervenor is to:

    a)deliver a bundle of documents, indexed and paginated throughout and in one or more ring-binder folders, containing the documents to be relied upon by all  parties at trial, to Judge’s chambers by 4:00pm three (3) days prior to the first date listed for hearing; and

    b)provide a copy of the bundle of documents to the Applicant and the Respondent by 4:00pm seven (7) days prior to the first date listed for hearing.

12. Each party have liberty to apply on the giving of three (3) days notice, each to the other.

13. Costs be reserved.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1072 of 2018

JULENE WINN

Applicant

And

DAVID JOHN LEIGH AS FORMER TRUSTEE OF THE ESTATE OF JULENE WINN

Respondent

REASONS FOR JUDGMENT

1. This matter was listed for hearing today commencing at 9.30 am.  Mr Fitzgerald, solicitor, appeared on behalf of the respondent, and Ms Symenovych, solicitor, appeared on behalf of the official trustee, the intervening party in the proceedings.  The applicant did not appear.  Her name was called three times by the associate.  However, it did transpire that the applicant had sent a medical certificate to the Court on the morning of the hearing, such medical certificate indicating that she would be unfit for appearance at today’s hearing.  The other parties accepted that that was the case.  Accordingly, the trial of the matter had to be adjourned in circumstances where some interlocutory matters needed to be attended to prior to any relisting of the matter. 

2. Submissions were made on behalf of each of the respondent and the intervenor as to what appropriate directions and orders ought to be made.  After dialogue between the Court and the legal representatives for the respondent and the intervenor, agreement was reached as to the terms on which the matter ought to progress to trial, and the appropriate orders or directions that ought to be made in that regard.  That agreement had regard to the current incapacity of the applicant to appear at the hearing today, as well as possible future incapacity on the part of the applicant.

3. One issue that arose during the course of submissions was that which related to the inspection of documents listed in an affidavit of documents filed on behalf of the applicant.  That affidavit was ordered to be filed and served no later than 4:00pm on 4 March 2019 by order of his Honour Judge Vasta made on 17 December 2018.  It would appear that such affidavit was not filed by the applicant until 14 May 2019.  In any event, it is asserted by the official trustee intervenor that notwithstanding that a request had been made of the applicant for production of each of the listed documents numbered 1-73 inclusive in the applicant’s list of documents affidavit, such request has not met with a positive response from the applicant. 

4. In those circumstances, the Court has considered that it is appropriate that the applicant provide copies of such documents to the Registry of this Court on or before 4:00pm on 6 September 2019.  It is also considered appropriate that each of the respondent and the intervenor have leave to inspect and make copies of any such document so produced by the applicant to the Court Registry on or before 20 September 2019.  Otherwise, the Court gives directions and makes orders accordingly.

5. Each party shall have liberty to apply.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Judge Egan

Date: 30 August 2019